In re Autry

Judge John

dissenting.

I believe Judge Tucker had authority both (1) to place legal and physical custody of Dylan Autry (Dylan) with the Willie M. Services Section, a Division of Mental Health, Developmental Disabilities and Substance Abuse Services within the North Carolina Department of Human Resources (the Section); and (2) to order the Section to arrange placement of Dylan in a living environment consistent with the criteria set forth in Judge Barefoot’s earlier 18 February 1993 order.

*269The record reflects Dylan was adjudicated a dependent juvenile and custody was granted to the New Hanover County Department of Social Services on 5 August 1986. He was subsequently certified a Willie M. class member on or about 4 March 1987. The necessity for placement of Dylan at the conclusion of his stay in Cherry Hospital, a psychiatric facility operated by the Department of Human Resources, was known upon his hospital admission in early January, 1992. In July and October of 1992, two separate placement plans for Dylan were submitted to the Section, but were rejected.

The matter came on for review before Judge Barefoot in February of 1993. Cherry Hospital officials indicated Dylan had received and attained the maximum benefit from hospitalization and his condition was deteriorating as his discharge continued to be delayed. Judge Barefoot’s order (entered 5 March 1993, nunc pro tunc to the hearing daté of 18 February 1993) directed the Section to provide the court with a placement plan, incorporating certain criteria, within thirty (30) days.

Judge Tucker, when the matter came on for review 18 March 1993 (six years after Dylan’s classification as a Willie M. juvenile, fourteen months after his placement at Cherry Hospital, and one full month after Judge Barefoot’s directive), was confronted with lame excuses and vague reassurances that there were “plans for placement as [Judge Barefoot had] ordered but that no firm plan or date for implementation of a plan can be given, although it is hoped that the plan will be implemented within the next several weeks.” In light of the foregoing history, Judge Tucker’s apparent frustration with bureaucratic foot-dragging was quite understandable.

The appeal herein only presents questions as to whether Judge Tucker had authority: (1) to set custody of Dylan in the Section, and (2) to direct the. custodian to effect treatment of Dylan consistent with Dylan’s best interests. The State points to two decisions—In re Swindell, 326 N.C. 473, 390 S.E.2d 134 (1990) and In the Matter of Baxley, 74 N.C. App. 527, 328 S.E.2d 831, disc. review denied, 314 N.C. 330, 333 S.E.2d 483 (1985) — and argues that any cure for Dylan’s predicament must be sought in federal court. I disagree and vote to affirm Judge Tucker’s order.

I.

In my opinion, our Juvenile Code, N.C.G.S. §§ 7A-516 to -749 (1989), authorizes Judge Tucker’s action.

*270First, under G.S. § 7A-523, the juvenile court has “exclusive, original jurisdiction” over a juvenile alleged to be dependent. Moreover, the Code provides this jurisdiction “shall continue until terminated by order of the court or until he reaches his eighteenth birthday.” G.S. § 7A-524 (emphasis added). See also In re Doe, 329 N.C. 743, 748, 407 S.E.2d 798, 801 (1991). Nowhere within the statutory scheme is the court divested of its responsibility should a dependent juvenile subsequently be certified a Willie M. class member. Accordingly, Judge Tucker had jurisdiction over Dylan’s case.

Second, the State’s assertion the court’s order was unauthorized because the Section was not a party is unavailing. Many alternative dispositions under the Juvenile Code involve implementation through third parties, usually state or local agencies, and the Section had full notice of Dylan’s situation and of the district court’s concern. No “fundamental fairness” or “due process” principles were violated by Judge Tucker’s order. See In re Jackson, 84 N.C. App. 167, 171-72, 352 S.E.2d 449, 452-53 (1987).

Third, the Code provides that the court may set custody of a dependent juvenile with “a parent, relative, private agency offering placement services, or some other suitable person.” G.S. § 7A-647(2)(b). Our Supreme Court has recently found that, as a matter of “common-sense,” the Division of Youth Services (like the Section, a division of the Department of Human Resources) is a “person” within the purview of a different sub-section of this same statute. In re Doe, 329 N.C. at 750, 407 S.E.2d at 802 (construing G.S. § 7A-647(3)). I find no distinction between the Section and the Division of Youth Services for purposes of consideration as a “person” under the statute. Furthermore, I would hold the Section, as consisting of individuals well versed in the special needs of Willie M. children, to be a “suitable” person in which to place custody of Dylan.

Fourth, G.S. § 7A-647(3) specifically authorizes the juvenile court, if a dependent juvenile is in need of “psychiatric, psychological or other treatment,” to “order the needed treatment.” See also Doe, 329 N.C. at 750, 407 S.E.2d at 802.

Lastly, G.S. § 7A-657 mandates periodic review by the juvenile court of custody and treatment arrangements for dependent juveniles and authorizes “different placement as is deemed to be in the best interest of the juvenile.” G.S. § 7A-657(d). This Code section permits the reviewing judge to order any treatment alternative authorized by G.S. § 7A-647. Within the limitations imposed by Swindell *271discussed below, I believe these sections enabled Judge Tucker to order treatment compatible with the criteria set forth in Judge Barefoot’s earlier order.

Despite the foregoing statutory provisions, the majority relies upon Baxley (and to a lesser extent, Swindell) to hold that because Dylan is a Willie M. child, Judge Tucker exceeded his authority. I disagree.

“The legislature is presumed to have intended a purpose for each sentence and word in a particular statute, and a statute is not to be construed in a way which makes any portion of it ineffective or redundant.” State v. White, 101 N.C. App. 593, 605, 401 S.E.2d 106, 113, disc. review denied and appeal dismissed, 329 N.C. 275, 407 S.E.2d 852 (1991). My analysis of the Juvenile Code, summarized above, indicates the juvenile court is responsible for both the proper custody and the proper treatment of dependent juveniles such as Dylan — regardless of whether they are subsequently determined to be Willie M. children. The Juvenile Code makes no mention of Willie M. children. In the absence of a legislative exclusion for Willie M. children, I would hold that once a child is found to be dependent, the juvenile court’s “exclusive, original jurisdiction” over custody and treatment matters continues until such time as jurisdiction is “terminated by order of the [juvenile] court” or such time as the child reaches age eighteen (18). In other words, I do not feel a dependent juvenile, who is subsequently determined to be a Willie M. child, should be allowed “to slip through the cracks” of our Juvenile Code.

II.

I would further hold that neither Baxley nor Swindell operate to bar the trial court’s action.

As previously noted, the Juvenile Code provides that the district court has “exclusive, original jurisdiction” over any case concerning a dependent child. G.S. § 7A-523. While the majority reads Baxley as imposing a limitation upon that jurisdiction, I find the holding therein inapposite. In Baxley, we were confronted with the question of whether the trial court denied a Willie M. juvenile his federally mandated right to treatment by revoking the juvenile’s conditional release from DYS custody. Baxley, 74 N.C. App. at 531, 328 S.E.2d at 833. Pursuant to the consent order in Willie M. v. James B. Hunt, No. CC79-0294 (W.D.N.C. 20 February 1981), Willie M. children have *272“certain special constitutional rights to appropriate treatment . . . .” Baxley, 74 N.C. App. at 531, 328 S.E.2d at 833.

Although Baxley indicates it is “inappropriate for this tribunal” to inquire into whether the State has denied a Willie M. child those rights guaranteed in the federal consent order, Baxley, 74 N.C. App. at 531, 328 S.E.2d at 833, the issue herein does not concern a Willie M. class member seeking redress for a violation of those rights secured under the federal court decree. On the contrary, this case involves the authority and responsibility of the district court to fulfill its continuing statutory obligation concerning “dependent” juveniles. See G.S. § 7A-657. It involves the juvenile court’s repeated attempts to find Dylan, who is a “dependent” child (and who also happens to be a Willie M. child), a suitable custodian and living environment — matters within the court’s jurisdiction which will repeatedly resurface until effectively resolved. Contrary to the majority’s implicit holding, therefore, I do not believe the district court’s “exclusive, original jurisdiction” suddenly evaporates when a dependent youth acquires a Willie M. classification.

Neither do I consider In Re Swindell, 326 N.C. 473, 390 S.E.2d 134 (1990) to have application. Under Swindell, the juvenile court has no authority “to order the state ... to develop and implement specific treatment programs and facilities for juveniles.” Swindell, 326 N.C. at 475, 390 S.E.2d at 136. However, the court may order an agency to provide specific treatment when such treatment is currently available. Doe, 329 N.C. at 752, 407 S.E.2d at 803. In summary, the courts simply cannot order the creation of treatment programs and facilities which do not exist. Such is not the situation in the case sub judice.

There exists a strong presumption favoring correctness of decisions of the trial court, with the burden on the appellant to show error. L. Harvey & Son Co. v. Jarman, 76 N.C. App. 191, 195-96, 333 S.E.2d 47, 50 (1985). Here the State, as appellant, has failed to file a transcript of the proceedings below. Consequently, our consideration of the State’s argument is limited to the printed record on appeal. See Loeb v. Loeb, 72 N.C. App. 205, 218, 324 S.E.2d 33, 42 (an appellate court’s decision must rest on the record on appeal), disc. review denied, 313 N.C. 508, 329 S.E.2d 393 (1985).

The limited appellate record prohibits any conclusion that the five placement criteria, as established by Judge Barefoot and directed by Judge Tucker, were non-existent on the date ordered. The *273court’s unchallenged, and therefore binding, findings, see Hagan v. Peden Steel Co., 57 N.C. App. 363, 365, 291 S.E.2d 308, 309 (1982), on the contrary indicate that plans for Dylan’s placement were indeed available, but would require several additional weeks for implementation. Hence the State (as appellant) has failed to show the placement and treatment ordered were unavailable, and therefore the trial court’s order is not barred by application of Swindell.

For the foregoing reasons, I respectfully dissent.