In re J.B.

JACKSON, Judge, dissenting.

For the reasons stated below, I must respectfully dissent from the majority's decision to affirm the conditions of probation imposed by the trial court.

Juvenile dispositions in delinquency proceedings are controlled by Chapter 7B, section 2500, of the North Carolina General Statutes. "The purpose of [these] dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction." N.C. Gen.Stat. § 7b-2500; In re Brownlee, 301 N.C. 532, 551, 272 S.E.2d 861, 872 (1981)(citing the current statute's predecessor statute N.C. Gen.Stat. § 7A-646), distinguished on other grounds by Bailey v. State, 353 N.C. 142, 158, 540 S.E.2d 313, 323 (2000). Accordingly, the court must select a disposition "designed to protect the public" and "to meet the needs and best interests of the juvenile" based on:

(1) the seriousness of the offense;

(2) the need to hold the juvenile accountable;

(3) the importance of protecting the public safety;

(4) the degree of culpability indicated by circumstances of the particular case; and

(5) the rehabilitative and treatment needs of the juvenile indicated by a risk and needs of the assessment.

N.C. Gen.Stat. § 7B-2501(c). Chapter 7B, section 2510(a)(14) of the North Carolina General Statutes further provides that "[t]he court may impose conditions of probation that are related to the needs of the juvenile and that are reasonably necessary to ensure that the juvenile will lead a law-abiding life, including [requiring] the juvenile to satisfy any other conditions determined appropriate by the court." This Court previously has stated that when the court is determining what conditions of probation are appropriate, the trial judge has authority to "fashion alternatives which are in harmony with the individual child's needs." In re McDonald, 133 N.C.App. 433, 434, 515 S.E.2d 719, 721 (1999)(citing In re Groves, 93 N.C.App. 34, 376 S.E.2d 481 (1989)). In making its decision concerning the juvenile's disposition, the court also must exercise "its juvenile jurisdiction" in weighing the State's best interests. In re Brownlee, 301 N.C. 532, 553, 272 S.E.2d 861, 873-74 (1981)(citing In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979); In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd. sub. nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971)).

Although our Juvenile Code has granted broad authority to the courts in fashioning appropriate dispositions for juveniles, that discretion is not without limitation. In re Schrimpsher, 143 N.C.App. 461, 466, 546 S.E.2d 407, 412 (2001). "[T]his discretion must be exercised within the stated goals and purposes of the Juvenile Code." Id.

In this case, when balancing J.B.'s needs with the State's best interest, the record tends to show that actually it would be adverse *390to his needs and not in his best interest to require him to visit the victim's grave site or to wear a necklace with the victim's picture affixed inside. I agree with the State's contention that accountability is one of the goals of the juvenile justice system; however, it also is a goal of the juvenile justice system to "meet the needs of the juvenile" in providing an appropriate plan for rehabilitating the juvenile. N.C. Gen.Stat. § 7B-2500(2005). "[T]he record must show that the condition is fair and reasonable, related to the needs of the child, and calculated to promote the best interest of the juvenile in conformity with the avowed policy of the State in its relation with juveniles." In re Schrimpsher, 143 N.C.App. at 468, 546 S.E.2d at 412 (citation omitted). See also In re Robinson, 151 N.C.App. 733, 736-37, 567 S.E.2d 227, 229 (2002).

Absent an abuse of discretion on the part of the trial court, its ruling may not be disturbed on appeal. In re Robinson, 151 N.C.App. 733, 737, 567 S.E.2d 227, 229 (2002). "'"An abuse of discretion occurs when the trial court's ruling `is so arbitrary that it could not have been the result of a reasoned decision.'"'" In re Robinson, 151 N.C.App. at 738, 567 S.E.2d at 229 (quoting Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. rev. denied, 347 N.C. 670, 500 S.E.2d 84 (1998))(quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). It is also well settled that "[t]he dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law." N.C. Gen.Stat. § 7B-2512. See also In re Ferrell, 162 N.C.App. 175, 177, 589 S.E.2d 894, 895 (2004).

Here, "the findings of fact in the dispositional order do not support the trial court's decision" to require J.B. to visit the victim's grave site. The evidence further fails to support the court's finding that wearing a necklace with the victim's picture affixed inside would be in J.B.'s best interests. It is, therefore, my opinion that the juvenile court abused its discretion. The record indicates that J.B. (1) was in grief counseling and is continuing to grieve; (2) was the victim's cousin and likely sees the victim's family frequently; (3) has an 82 IQ with a below average functional range; (4) has age-equivalents ranging from 7 years, 2 months, to 13 years, 6 months with an average of 10 years, 8 months; (5) probably will need continued involvement in therapy based on J.B.'s adjustment and the potential of his becoming a risk to himself - rather than to others; (6) has difficulty in comprehension, especially in complex social interactions; (7) is in the clinical range on Hyperactivity, Conduct Problems, Depression, and Withdrawal and is in the borderline range for Anxiety; and (8) has Attention-Deficit/Hyperactivity Disorder and had difficulty in school beginning around the fifth or sixth grade.

In determining J.B.'s conditions for probation, the juvenile court explained to him the seriousness of his actions and the importance of taking responsibility for those actions.

Court: I've heard ad nauseam about what you've gone through. But what you've gone through compares nothing to what the [victim's] family has gone through. Do you understand that?

Juvenile: Yes, sir.

Court: And what they've gone through is because of your actions and your actions alone. . . . And because of your stupidity - which is what is was - plainly stupidity - [the victim] is not going to graduate from high school, he ain't going to no prom, he ain't going to get married, ain't going to have no children. None of those things. Because of your stupidity. . . . Do you understand that?

Juvenile: Yes, sir.

Court: And I hope you appreciate - truly appreciate what you've done. You call it an accident. I don't. That ain't no accident. . . . And just so you'll know where I'm coming from, the fact that you shot your cousin, then ran away, and then returned to retrieve property so you wouldn't be implicated and did nothing to notify - that's just cold-hearted. That is just absolutely cold-hearted. And I think you forfeit any right to participate in any high school functions because of that behavior. [The victim] has given it up for the rest of his life. He doesn't *391get to do any of that. So, I think for two years, it wouldn't hurt you at all."

While it was within the juvenile court's authority to consider J.B.'s accountability or lack thereof, the juvenile court also was required to consider all of his individual needs when "fashioning alternatives" for the conditions of probation. The juvenile court focused on J.B.'s "crime" to the exclusion of his needs; however, both necessarily must be considered pursuant to the requirements of the North Carolina General Statutes. N.C. Gen.Stat. § 7B-2501.

The juvenile court tended to ignore the undisputed evidence directly related to J.B.'s needs in designing a plan to fit this juvenile's best interests, although the judge explicitly acknowledges such evidence exists:

Court: I think both parties are correct in that I've got to consider the protection of the public and the needs of the juvenile considering all these factors to transfer it. And so I will find that . . . the juvenile falls in the below average range as far as his intellectual functioning. That the evidence that I heard is that he thinks as someone who is two to three years younger than his actual physical age. I didn't hear any direct evidence concerning the maturity of the juvenile. . . . He has no prior record. . . . Been no prior attempts to rehabilitate the juvenile.

After considering the seriousness of the crime, the juvenile court found that out of "all the evidence . . . [J.B.'s] not a danger to society or is not a danger to the public." The juvenile court further stated in direct contradiction of its statements noted supra:

Court: -I've heard all this - I don't consider [the juvenile] slow. I mean I've heard what you said about his intellectual - you know, but that has not crossed my mind. What he did afterwards - after this happened doesn't indicate he's intellectually slow.

The record was clear, however, that J.B.'s IQ was below average functional range and J.B. has had difficulty in school beginning around the fifth or sixth grade. Doctor Heather Scheffler ("Dr. Scheffler"), a clinical psychologist with an emphasis in pediatrics and with experience in conducting assessments, consulting with school systems regarding children with needs, and providing therapy for childhood and adolescent disorders, such as Attention-Deficit/Hyperactivity Disorder, learning disorders, depression, and anxiety, diagnosed J.B. with Attention-Deficit/Hyperactivity Disorder in 2001, a diagnosis which was not made in anticipation of this dispositional hearing, but rather done after his parents requested a psychological evaluation to complement a planned school-based psycho-educational evaluation. Moreover, the juvenile court gave no consideration to Dr. Scheffler's findings that J.B. had problems with hyperactivity, conduct, depression, withdrawal, and anxiety nor did it give any consideration that he was in grief counseling when it determined that he must wear a necklace around his neck and visit the victim's grave site. The juvenile court should have considered all of the evidence when determining the individualized needs of J.B. and balancing those needs against the objectives of the state.

The record further indicated that the juvenile court compared J.B.'s actions to those of an adult when determining his conditions of probation.

Court: I mean what he did, if you think about it - I mean what he did, if he was an adult in a different fact situation, if we were talking - you know, he could be facing murder charges because of the fact - what he came by, took the weapon, took everything so he wouldn't be implicated and he went off . . .

Counsel: But there's other facts, Judge. I mean -

Court: Oh, I know that. That's what I'm saying.

"Disposition of a juvenile, however, involves a philosophy far different from adult sentencing. . . . [A] delinquent child is not a `criminal.' The inference is that a juvenile's disposition is not intended to be a punishment but rather an attempt to rehabilitate him." In re Vinson, 298 N.C. 640, 666, 260 S.E.2d 591, 607 (1979). Therefore, it is irrelevant what the court would have done were J.B. an adult and it was inappropriate for the court to take *392into consideration what it would have done if he were to be punished and treated as an adult.

Based on the record before the court containing the special individualized needs of this juvenile, and for the reasons stated above, I would find the court erred in requiring J.B. to visit the victim's grave site and to wear a necklace with the victim's picture affixed inside.

Accordingly, I must dissent from the majority's opinion.