In re: E.A. ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-277
Filed: 17 September 2019
Wake County, No. 17 JB 488
IN THE MATTER OF: E.A.
Appeal by respondent-juvenile from order entered 12 October 2018 by Judge
Robert Rader in Wake County District Court. Heard in the Court of Appeals 5
September 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Janelle E.
Varley, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Hitchcock, for respondent-appellant juvenile.
ZACHARY, Judge.
Respondent-juvenile “Evan”1 appeals from a disposition and commitment
order adjudicating him to be a Level 2 delinquent juvenile. Evan argues on appeal
that, after being presented with evidence that he was mentally ill, the trial court
erred by failing to refer him to the area mental health services director. After careful
review, we vacate the disposition and commitment order and remand to the trial court
for a referral to the area mental health services director.
Background
1 We employ a pseudonym to protect the identity of Respondent, a minor.
IN RE: E.A.
Opinion of the Court
The relevant facts are few. Between 14 December 2017 and 5 January 2018, a
Wake County juvenile court counselor approved a petition alleging that Evan (1)
committed an assault with a deadly weapon with intent to kill; (2) possessed stolen
property; and (3) committed malicious conduct upon a government official by spitting
on him. Evan admitted to the charges of assault with a deadly weapon with intent
to kill and malicious conduct, and the State dismissed the charge of possession of
stolen property. The Honorable Craig Croom adjudicated Evan as delinquent,
entered a Level 2 disposition, and ordered twelve months’ probation. One month
later, a juvenile court counselor filed a motion for review, alleging that Evan violated
his probation. On 9 October 2018, the motion for review came on for hearing before
the Honorable Robert Rader in Wake County District Court. Judge Rader found Evan
in willful violation of his probation, revoked his probation, and ordered that Evan be
committed to a youth development center with the Division of Adult Correction and
Juvenile Justice for an indefinite period, to end no later than Evan’s eighteenth
birthday.
Grounds for Appellate Review
Preliminarily, we address our jurisdiction to consider the merits of Evan’s
appeal. Evan filed written notice of appeal on 10 October 2018. Typed into the trial
court’s order at the bottom of the page is the date “10/9/2018.” However, the order is
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IN RE: E.A.
Opinion of the Court
additionally—and quite noticeably—stamped with “2018 OCT 12 A 11:07,” indicating
that the order was filed after Evan filed his notice of appeal on 10 October.
Before a party may file notice of appeal, there must first be an entry of
judgment. See N.C. Gen. Stat. § 1A-1, Rule 58 (2017) (“[A] judgment is entered when
it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant
to Rule 5.”). “When a defendant has not properly given notice of appeal, this Court is
without jurisdiction to hear the appeal.” See State v. Webber, 190 N.C. App. 649, 651,
660 S.E.2d 621, 622 (2008) (quotation marks omitted). Consequently, Evan would
need to request—and we would need to issue—a writ of certiorari to have his case
reviewed. See N.C.R. App. P. 21(a). No petition for writ of certiorari was ever filed.
However, this Court has the discretionary authority, pursuant to Appellate Rule 21,
to “treat the purported appeal as a petition for writ of certiorari and grant it in our
discretion.” Luther v. Seawell, 191 N.C. App. 139, 142, 662 S.E.2d 1, 3 (2008).
For reasons more fully explained below, we find the facts of Evan’s case worthy
of treating his brief as a petition for writ of certiorari. We also note that the State
has not raised this jurisdictional issue in its brief, and we do not contemplate any
resulting prejudice to the State. Thus, in our discretion, we invoke this Court’s
authority pursuant to our caselaw and Appellate Rule 21, and proceed to the merits
of Evan’s appeal.
Discussion
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IN RE: E.A.
Opinion of the Court
Evan argues on appeal that the trial court erred by failing to refer him to the
area mental health services director, after being presented with evidence that Evan
was mentally ill. We agree.2
Prior to disposition in a juvenile delinquency action, “the court may order that
the juvenile be examined by a physician, psychiatrist, psychologist, or other qualified
expert as may be needed for the court to determine the needs of the juvenile.” N.C.
Gen. Stat. § 7B-2502(a) (2017). When presented with evidence that the juvenile is
mentally ill, the trial court is required to take further action:
If the court believes, or if there is evidence presented to the
effect that the juvenile is mentally ill or is developmentally
disabled, the court shall refer the juvenile to the area
mental health, developmental disabilities, and substance
abuse services director for appropriate action. A juvenile
shall not be committed directly to a State hospital or
mental retardation center; and orders purporting to
commit a juvenile directly to a State hospital or mental
retardation center except for an examination to determine
capacity to proceed shall be void and of no effect. The area
mental health, developmental disabilities, and substance
abuse director shall be responsible for arranging an
interdisciplinary evaluation of the juvenile and mobilizing
resources to meet the juvenile’s needs. If
institutionalization is determined to be the best service for
the juvenile, admission shall be with the voluntary consent
of the parent, guardian, or custodian. If the parent,
guardian, or custodian refuses to consent to a mental
hospital or retardation center admission after such
institutionalization is recommended by the area mental
health, developmental disabilities, and substance abuse
director, the signature and consent of the court may be
2 Because the trial court’s failure to refer Evan to the area mental health services director is
dispositive, we need not address his remaining arguments on appeal.
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IN RE: E.A.
Opinion of the Court
substituted for that purpose. In all cases in which a
regional mental hospital refuses admission to a juvenile
referred for admission by the court and an area mental
health, developmental disabilities, and substance abuse
director or discharges a juvenile previously admitted on
court referral prior to completion of the juvenile’s
treatment, the hospital shall submit to the court a written
report setting out the reasons for denial of admission or
discharge and setting out the juvenile’s diagnosis,
indications of mental illness, indications of need for
treatment, and a statement as to the location of any facility
known to have a treatment program for the juvenile in
question.
Id. § 7B-2502(c). Notwithstanding a party’s failure to object at trial, the trial court’s
violation of a statutory mandate is reversible error, reviewed de novo on appeal. In re
E.M., ___ N.C. App. ___, ___, 823 S.E.2d 674, 676, disc. review denied, ___ N.C. ___,
___ S.E.2d ___ (2019).
“Faced with any amount of evidence that a juvenile is mentally ill, a trial court
has a statutory duty to refer the juvenile to the area mental health services director
for appropriate action.” Id. at ___, 823 S.E.2d at 677 (quotation marks and ellipses
omitted). Section 7B-2502(c) “envisions the area mental health services director’s
involvement in the juvenile’s disposition and responsibility for arranging an
interdisciplinary evaluation of the juvenile and mobilizing resources to meet the
juvenile’s needs.” Id. at ___, 823 S.E.2d 677-78 (brackets and quotation marks
omitted).
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IN RE: E.A.
Opinion of the Court
In E.M., the trial court improperly committed the juvenile to a youth
development center despite “a plethora of evidence demonstrating that [the juvenile]
was mentally ill.” Id. at ___, 823 S.E.2d at 677. The record before the trial court
established that the juvenile had received—and still required—significant mental
health treatment. Id. at ___, 823 S.E.2d at 677. A disposition report presented to the
trial court revealed that the juvenile had been diagnosed with several mental
disorders. Id. at ___, 823 S.E.2d at 677. Accordingly, this Court vacated the order
and remanded to the trial court with instructions to include a referral to the area
mental health services director. Id. at ___, 823 S.E.2d at 678.
The State concedes that the instant case is indistinguishable from E.M., and
agrees that the trial court erred in failing to refer Evan to the area mental health
services director. The concession is well warranted. In its order, the trial court stated
that it received and considered a predisposition report, a risk assessment, and a needs
assessment. The predisposition report referred to a clinical assessment completed by
Haven House Services, which diagnosed Evan with conduct disorder, and
recommended intensive outpatient services. In addition, the Haven House
Assessment stated that (1) Evan’s conduct disorder “causes clinically significant
impairment in social, academic, or occupational functioning”; (2) Evan needs
substance abuse treatment; and (3) Evan’s behavior indicates a need for additional
mental health assessment and treatment.
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IN RE: E.A.
Opinion of the Court
Conclusion
It is patently clear that the evidence before the trial court presented Evan as
being mentally ill. Pursuant to N.C. Gen. Stat. § 7B-2502, the trial court’s failure to
refer Evan to the area mental health services director constitutes reversible error.
Accordingly, we vacate the order and remand to the trial court for referral to the area
mental health services director.3
VACATED AND REMANDED.
Judges ARROWOOD and HAMPSON concur.
3 We recognize that the position of “area mental health, developmental disabilities, and
substance abuse services director” no longer exists as referenced in N.C. Gen. Stat. § 7B-2502(c). See
Jacquelyn Greene, Mental Health Evaluations Required Prior to Delinquency Dispositions, On the
Civil Side, UNC School of Government (Jan. 22, 2019, 8:00 a.m.), [https://perma.cc/TN5N-HHQS]. In
1974, the General Assembly mandated referral to the “area mental health director” when the trial
court was presented with evidence that the juvenile suffered from a mental illness. 1973 N.C. Sess.
Laws 271, 271, ch. 1157. The area director referenced in § 7B-2502(c) is now identified as the “local
management entity/managed care organization” found in N.C. Gen. Stat. § 122C-3(20b). Greene,
supra. We strongly encourage the General Assembly to update the language of § 7B-2502(c) to reflect
the current understanding and need for mental health treatment for juveniles. See K. Edward Greene,
Mental Health Care for Children: Before and During State Custody, 13 CAMPBELL L. REV. 1, 54 (1990)
(“[The child’s] right to mental health care is derived, if at all, from statutes, and legislatures have been
reluctant to mandate the delivery of such care.”).
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