In the Matter of T.O.C., __ N.C.App. __, 907 S.E.2d. 99

Facts: The juvenile ran away from his mother’s house, was found by his mother and her boyfriend while walking down a road, and the boyfriend held the juvenile until the police arrived. The juvenile kicked, bit, scratched, spat on, and hit the boyfriend in the face with gravel while being held down. He was adjudicated delinquent for simple assault of the mother’s boyfriend and placed on probation with special conditions that included a change in parental custody. The disposition order incorporated the contents of the predisposition report, risk assessment, and needs assessment by reference. It also included findings that stated

“Based on the risk and needs assessment reports submitted by the department of juvenile justice, the court finds that the juvenile has a pre-screen risk score of 41, which is high, a full assessment needs score of 74, which is moderate, and full assessment strengths score of 43, which is high moderate.”

The custody change was contained in a separate “Juvenile Order” which did not contain any findings. The juvenile appealed, arguing that the trial court erred by denying his motion to dismiss and by failing to state sufficient findings of fact in the dispositional order.

Opinion:

The trial court did not err in denying the motion to dismiss. Self-defense did not apply because the juvenile was not without fault in provoking, or engaging in, or continuing the difficulty.

Testimony from the mother and the mother’s boyfriend included that the juvenile kicked, hit, and threw gravel on the boyfriend. The juvenile also testified that he hit and kicked the boyfriend. The juvenile asserted that he engaged in this conduct in self-defense. Self-defense applies only when the juvenile is without fault in provoking, or engaging in, or continuing a difficulty with the other person. The juvenile was not without fault in this case because he was running away from home after a dispute with his mother and was found at night walking down a road. The boyfriend’s action of holding the juvenile down to stop him from going further was reasonable for the juvenile’s protection. The juvenile also asserted that his high blood sugar level at the time of the incident was relevant to whether he had the intent needed for an assault adjudication. However, the juvenile did not present any evidence related to that assertion at trial.

The findings of fact in the dispositional order were insufficient.

There is conflicting caselaw regarding whether documents incorporated by reference in the dispositional order are part of the findings in a dispositional order used to show that the court considered all five statutorily required considerations contained in G.S. 7B-2501(c) (1) seriousness of offense; 2) need to hold the juvenile accountable; 3) protection of public safety; 4) degree of culpability based on the specific circumstance; and 5) rehabilitative and treatment needs of the juvenile as indicated by a risk and needs assessment). This court followed the older line of cases which prioritizes substance over form and allows for consideration of the documents incorporated by reference in the dispositional order.

Even considering the predisposition report, risk assessment, and needs assessment that were incorporated by reference in the dispositional order, the findings in the dispositional order were insufficient. The written findings only reiterated the risk and needs assessment scores. The findings in the dispositional order did not adequately address the five factors required by G.S. 7B-2501(c).

There were insufficient findings to support the order changing custody of the juvenile.

There was a custody order in place, outside of the delinquency proceeding, related to the juvenile. The trial court entered a supplemental custody order, altering that underlying order, during the delinquency disposition. That supplemental custody order did not contain any findings of fact to support a change in custody. Additionally, a trial court cannot enter an order modifying a custody order sua sponte, as was done in this case.

A trial court is authorized to change custody as a dispositional alternative in a delinquency case when the change in custody would protect the public and meet the needs and best interests of the juvenile based on the five required factors for consideration contained in G.S. 7B-2501(c). Because there were no findings made to support the change in custody, the case was remanded for the trial court to consider evidence that would support entering a new custody order.