In re: A.L.B. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 20-44
Filed: 6 October 2020
Gaston County, No. 17-JB-218
IN THE MATTER OF: A.L.B.
Appeal by juvenile from order entered 20 May 2019 by Judge Michael K. Lands
in Gaston County District Court. Heard in the Court of Appeals 26 August 2020.
Attorney General Joshua H. Stein, by Assistant Deputy Attorney General
Melissa K. Walker, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
Andrews, for respondent-appellant juvenile.
INMAN, Judge.
Amber,1 a juvenile diagnosed with several mental disorders, appeals from an
order committing her to a Division of Adult Correction youth development center
after the district court found her responsible for six escapes from youth foster and
group homes, at least five vehicle thefts (including two wrecks), and the removal of
the ankle monitor that provided the only means for authorities to know her
whereabouts.
1 We refer to the juvenile by pseudonym to protect the identity of the minor.
IN RE A.L.B.
Opinion of the Court
She argues that the trial court erred in failing to refer her to the area mental
health services director for appropriate action, as required by statute. After careful
review, we agree, vacate the trial court’s order, and remand for further proceedings.
I. Facts and Procedural Background
The evidence of record tends to show the following:
Amber, born on 15 September 2003, was 15 years old at the time of the
proceeding below. She had lived for some time with her father, but they had “physical
conflicts,” and she reported that he engaged in domestic violence and abused alcohol.
Eventually Amber’s father kicked her out of his home.
Amber then moved in with her mother, who struggled with her own mental
health issues. She was unable to control Amber’s behavior, and, after Amber stole a
car, surrendered her to Gaston County Department of Social Services (“DSS”)
custody.
DSS initially placed Amber in a series of three Level Two therapeutic foster
care homes. Amber ran away from the first two homes, stealing a car on one occasion.
She was found responsible and placed on probation for running away and stealing
the vehicle. Amber was later transferred out of the third therapeutic foster care home
due to its location.
A mental health assessment of Amber in March 2018 noted several diagnoses
including post-traumatic stress disorder, depressive disorder, and unspecified
-2-
IN RE A.L.B.
Opinion of the Court
disruptive, impulse-control, and conduct disorder. The mental health counselor who
assessed Amber recommended that she be placed in a Level Three home, which would
provide around the clock residential services including rules, routine, structure,
therapeutic interventions, group activities, and additional therapy.
Amber’s therapeutic care and placement was coordinated by Partners
Behavioral Health Management (“Partners”), the Managed Care Organization
(“MCO”) for Gaston County.2 Partners does not directly provide care, evaluate
patients, or recommend appropriate treatments. Instead, licensed care providers
conduct any necessary medical evaluations and make treatment recommendations;
Partners then steps in, if needed, to identify facilities that provide the recommended
treatment and coordinate patient placement with those facilities.
Consistent with the assessment and recommendation in March 2018, Partners
authorized placement for Amber in a Level Three group home on 27 April 2018.
Partners authorized Amber’s placement so that she could receive care according to
her Patient Centered Plan (“PCP”), which, per Partners’ Care Coordination
Supervisor Kendall Higgins, is “a treatment plan that's developed by a clinician and
a family . . . that really outlines their treatment goals based on what's recommended
in the comprehensive clinical assessment.” The group home updated Amber’s
treatment plan in May, June, July, August, and October 2018.
2 It is unclear from the record what, precisely, prompted Partners to begin coordinating
Amber’s care.
-3-
IN RE A.L.B.
Opinion of the Court
Amber stole a van from the group home and fled on 13 August 2018, leading to
a juvenile petition for larceny of a motor vehicle. After a few days in detention, Amber
returned to the group home. She ran away again, leading to another juvenile petition
on 16 October 2018. On 5 November 2018, she admitted to delinquency in connection
with the larceny petition and was placed on probation for 9 months.
Partners authorized placement in a different Level Three group home, Turn
Around Group Home, on 13 November 2018. A different mental health entity, A New
Place, took over responsibility for updating Amber’s clinical assessment and
treatment plan.
Although Amber’s first few months at Turn Around seemed promising, she
eventually violated the terms of her probation on 3 March 2019 when she failed to
charge her ankle monitor, cut it off, and fled the home. She was located in Lincoln
County in possession of her grandmother’s car before being returned to Turn Around
on 1 April 2019. The following morning, Amber stole a van and absconded again. She
later crashed the van, stole a truck, and wrecked the truck before being apprehended
on 4 April 2019. Juvenile petitions for speeding to elude arrest and felony possession
of a stolen vehicle were filed on 4 April and 16 April 2019, respectively.
Amber admitted to possession of a stolen vehicle on 18 April 2019, leading the
State to dismiss the petition for speeding to elude arrest. She admitted to her
probation violations at a hearing on 6 May 2019. During that hearing, Amber
-4-
IN RE A.L.B.
Opinion of the Court
requested placement in a Level Five psychiatric residential treatment facility
(“PRTF”).3 Amber had not previously been placed in a psychiatric facility.
At a disposition hearing on 20 May 2019, Amber’s juvenile court counselor
recommended that she be committed to the Juvenile Section Division of the Division
of Adult Correction for placement in a youth development center (“YDC”), the most
restrictive possible disposition. The counselor noted that while in State custody,
Amber could receive the same individual and group therapy, medication
management, and education available in a residential psychiatric facility. Unlike
psychiatric facilities, YDCs are fenced.
Ms. Higgins also appeared at the disposition hearing to testify concerning
Amber’s mental health history and treatment. She testified that licensed clinical care
providers with A New Place had assessed Amber and recommended commitment to
a Level Five PRTF, and that Amber had outstanding referrals to several of those
facilities. Ms. Higgins testified that she did not have a recent clinical assessment
recommending that commitment, and that the most recent clinical assessment
available to Partners—from March 2018 —was out of date and “wouldn’t be relevant”
to determine Amber’s current treatment needs. She also testified that YDCs provide
psychiatric care “if the juvenile requests it.”
3
A Level Five PRTF, unlike lower-level PRTFs, is a locked mental health treatment facility.
It is the most restrictive form of therapeutic treatment short of inpatient care. Patients are monitored
24 hours a day and receive schooling, psychiatric therapy, and psychiatric medication management.
-5-
IN RE A.L.B.
Opinion of the Court
After the presentation of evidence, Amber’s counsel argued for placement in a
Level Five psychiatric residential treatment facility, while the State posited that
commitment to a Level Three youth detention center was more appropriate. Amber’s
counsel also contended that, based on evidence Amber suffered from mental illness,
N.C. Gen. Stat. § 7B-2502(c) required the trial court to refer her to the local mental
health services director—in this case Partners4—who would then be responsible for
conducting an interdisciplinary evaluation, mobilizing care, and meeting Amber’s
needs. The trial court rejected the argument without substantive discussion and
ordered a Level Three YDC disposition. Amber entered oral notice of appeal.
II. ANALYSIS
Amber contends, as she did before the trial court, that her evidence of mental
illness required halting disposition for a referral to Partners for “appropriate action,”
namely, “an interdisciplinary evaluation and [the] mobiliz[ation] of resources to meet
[her] needs.” N.C. Gen. Stat. § 7B-2502(c). The State acknowledges that the
statutorily mandated referral was not made but argues that Amber cannot show
prejudice because Ms. Higgins, as a representative of Partners, testified at the
4 The statute in question requires referral to the “area mental health, developmental
disabilities, and substance abuse services director,” N.C. Gen. Stat. § 7B-2502(c) (2019), a position that
no longer exists. In re E.A., ___ N.C. App. ___, ___ n.3, 833 S.E.2d 630, 633 n.3 (2019). A separate
statute, N.C. Gen. Stat. § 122C-3, makes the local MCO the “area mental health . . . services director”
for purposes of N.C. Gen. Stat. § 7B-2502(c). See N.C. Gen. Stat. §§ 122C-3(1) and (20b) (2019)
(defining “[a]rea authority” as “[t]he area mental health, developmental disabilities, and substance
abuse authority” and “[l]ocal management entity (LME)” as “[a]n area authority”); E.A., ___ N.C. App.
at ___ n.3, 833 S.E.2d at 633 n.3 (detailing the interplay of N.C. Gen. Stat. §§ 7B-2502 and 122C-3).
-6-
IN RE A.L.B.
Opinion of the Court
disposition hearing. In sum, the State contends remand is not warranted because
Ms. Higgins participated in the hearing, and “[r]emand would only accomplish having
the court receive and consider the same information it has already heard.”
We hold that Amber has demonstrated reversible error. Consistent with this
Court’s prior decisions, the trial court was required to refer Amber to Partners for an
interdisciplinary evaluation based on her numerous mental health diagnoses. Section
7B-2502(c) provides:
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. . . . 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.
N.C. Gen. Stat § 7B-2502(c) (emphasis added).
In applying the statute, this Court has held that “[t]he use of the word ‘shall’
indicates a statutory mandate that the trial court refer the juvenile to the area mental
health services director for appropriate action, and failure to do so is error.” In re
E.M., 263 N.C. App. 476, 478, 823 S.E.2d 674, 676 (2019) (citations omitted); see also
E.A., ___ N.C. App. at ___, 823 S.E.2d at 632-33 (2019) (vacating and remanding a
YDC commitment when the juvenile introduced evidence of mental illness but was
not referred to the area mental health services director).
-7-
IN RE A.L.B.
Opinion of the Court
The referral is required if the trial court is “faced with any amount of evidence
that a juvenile is mentally ill.” E.M., 263 N.C. App. at 480, 823 S.E.2d at 677. This
is so regardless of the juvenile’s past mental health treatment or the availability of
mental health services through commitment to a YDC. See id. (“It is possible that
the trial court was under the misapprehension that such a referral was unnecessary,
because Evan had already received significant mental health services prior to this
disposition and because the trial court recognized that it could order mental health
services for Evan during his commitment.”). Though a representative of Partners
testified at the disposition hearing, the statute “envisions the area mental health
services director’s involvement in the juvenile’s disposition and ‘responsib[ility] for
arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to
meet the juvenile’s needs.’ ” Id. (quoting N.C. Gen. Stat. § 7B-2502(c)) (emphasis
added). Consistent with E.M. and E.A., we hold that the trial court erred in failing
to abide by N.C. Gen. Stat. § 7B-2502(c)’s statutory mandate.
Turning to the State’s argument that Amber has suffered no prejudice, we are
unconvinced that remand would simply have the trial court “receive and consider the
same information it has already heard” based on a close examination of the record
below. We note that there was no testimony as to whether the “interdisciplinary
evaluation . . . and mobiliz[ation of] resources” required by the statute is the same as
or equivalent to the coordinated care assessment Amber had received through
-8-
IN RE A.L.B.
Opinion of the Court
Partners at the time of disposition, making any conclusion to that effect conjecture.
And, although the State contends the trial court received “Ms.
Higgins[’s] . . . recommendations for disposition and placement,” the transcript
reveals that Ms. Higgins could not offer a recommendation herself:
[MS. HIGGINS]: If I could clarify for the record, Your
Honor, our—we do not make the recommendations. These
clinical recommendations are made by a licensed provider.
We help link and facilitate movement from that client to
the recommended level of care. So I wouldn’t actually be
making the recommendations.
....
I wouldn’t determine what the best placement would be. I
didn’t write the recommendation for the best treatment.
Instead, all that Ms. Higgins relayed to the trial court was her understanding
that Amber’s licensed healthcare provider’s most recent recommendation was—for
the first time in Amber’s treatment history—placement in a Level Five PRTF. She
did not provide the clinician’s rationale behind the recommendation, and testified
that Partners had not received the latest clinical assessment on which the
recommendation was based:
[MS. HIGGINS]: I don’t have any recommendations for
placement.
....
[The latest clinical assessment is] not in this packet of
information that I have, that was part of our medical
-9-
IN RE A.L.B.
Opinion of the Court
records, that to my understanding, it was part of what was
subpoenaed.
....
We brought everything that was subpoenaed from our
medical records that was available to us. . . . It just so
happens that part of our medical record did not include this
most recent assessment.5
In fact, Ms. Higgins testified that Amber’s most recent clinical home, not Partners,
had made and was responsible for pursuing the several referrals to PRTFs that were
still outstanding. Ms. Higgins also confirmed that she had never spoken with the
clinicians who had conducted the most recent assessment, let alone Amber.
The State notes that the trial court had the benefit of a clinical assessment of
Amber dated to March of 2018. That assessment, however, was more than a year old
and, according to Ms. Higgins, insufficient to support a current placement
recommendation:
[MS. HIGGINS]: These recommendations from 2018 are
what recommended her for the level of care that she was
most recently at, the Level Three group home.
....
5 We note that when asked what additional documents besides the clinical assessment she
reviewed to prepare for the disposition hearing, Ms. Higgins stated she had “briefly reviewed the
addendum that we just got, that was provided to you by A New Place.” She later testified that the
only documents she reviewed concerning Amber’s recommended placement in a psychiatric facility
were the March 2018 clinical assessment and treatment plan, and that her testimony was based only
on those two documents. It is unclear from the record whether the addendum that Ms. Higgins “just
got” pertained to the clinical assessment, treatment plan, or some other healthcare-related document.
In any event, the trial court did not receive any information about the most recent clinical assessment
beyond Ms. Higgins’s understanding that it contained a recommendation for Level Five PRTF
placement.
- 10 -
IN RE A.L.B.
Opinion of the Court
We would consider [the clinical assessment from] March
2018 to not be active . . . .
....
It includes clinical information that we’d always want to
consider, but the recommendations would not be to date. It
wouldn’t be relevant.
[THE STATE]: Okay.
[MS. HIGGINS]: In terms of a higher level of care.
THE COURT: Let me make sure I understood that. So we
should be considering a March [2019] evaluation?
[MS. HIGGINS]: I think in terms of when we look at
authorizing care, we would need a recommendation within
the last 30 days.
In short, neither Ms. Higgins’s testimony nor the documents introduced provided the
trial court with evidence regarding why a Level Five PRTF placement, as opposed to
commitment to a YDC, was appropriate for Amber based on any clinical evaluations
of her mental health needs. The trial court lacked the opportunity to weigh any
mental health care clinicians’ reasoning against the State’s recommendation for
commitment to a YDC.
“Mental illness itself is not a unitary concept. It varies in degree. It can vary
over time. It interferes with an individual’s functioning at different times in different
ways.” Indiana v. Edwards, 554 U.S. 164, 175, 171 L. Ed. 2d 345, 356 (2008). It is
possible, then, that an updated assessment could show new diagnoses or rationales
- 11 -
IN RE A.L.B.
Opinion of the Court
for specific treatment that would alter the trial court’s ultimate disposition. A year
is not insignificant in the mental development of an adolescent.
N.C. Gen. Stat. § 7B-2502(c) “envisions the area mental health services
director’s involvement in the juvenile’s disposition and ‘responsib[ility] for arranging
an interdisciplinary evaluation of the juvenile and mobilizing resources to meet the
juvenile’s needs.’ ” E.M., 263 N.C. App. at 480, 823 S.E.2d at 677-78 (quoting N.C.
Gen. Stat. § 7B-2502(c)).6 While Amber had received some services from Partners—
the local mental health services director—and while Ms. Higgins testified about a
recent clinical recommendation, it is not evident that the “interdisciplinary
evaluation of the juvenile and mobiliz[ation of] resources” called for by the statute
had been completed. Given Ms. Higgins’s testimony regarding a clinical
recommendation that was different than the recommendation a year earlier, and that
supported Amber’s request to be placed in a psychiatric facility, we hold that Amber
has demonstrated a reasonable possibility that compliance with the statute and
6 While the State argues on appeal that the purpose of the statute was vindicated by Ms.
Higgins’s participation in the hearing, we note that the State actively sought at various points to limit
Ms. Higgins’s participation considerably. When Amber called Ms. Higgins as a witness, the State
protested on the grounds that Amber’s counsel had not listed Ms. Higgins on a witness list she
voluntarily provided to the State. The State objected to Ms. Higgins’s testimony concerning Amber’s
mental health diagnoses and objected to having her qualified as an expert witness in licensed
professional counseling. It later moved to strike all of Ms. Higgins’s testimony concerning the March
2018 clinical assessment on the grounds that her expert testimony disclosed the immateriality of the
assessment to the most recent Level Five PRTF placement recommendation. We further note that the
rules of evidence are relaxed in juvenile delinquency disposition hearings. See N.C. Gen. Stat. § 7B-
2501(a) (2019) (“The dispositional hearing may be informal, and the court may consider written reports
or other evidence concerning the needs of the juvenile. The court may consider any evidence, including
hearsay evidence as defined in [N.C. Gen. Stat. §] 8C-1, Rule 801, that the court finds to be relevant,
reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.”).
- 12 -
IN RE A.L.B.
Opinion of the Court
review of the required evaluation would have resulted in a different disposition. See
In re Bass, 77 N.C. App. 110, 334 S.E.2d 779, 782 (1985) (holding a juvenile failed to
show prejudice because he could not demonstrate “a reasonable possibility that a
different result would have been reached at his adjudicatory hearing”); see also N.C.
Gen. Stat. § 15A-1443(a) (2019) (“A defendant is prejudiced by errors relating to
rights arising other than under the Constitution of the United States when there is
a reasonable possibility that, had the error in question not been committed, a
different result would have been reached at the trial out of which the appeal arises.”).
We therefore vacate the disposition order and remand to the trial court for the
referral, interdisciplinary evaluation, and mobilization of resources called for by the
statute.
III. CONCLUSION
For the foregoing reasons, we vacate the disposition order committing Amber
to a YDC and remand for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
Judge COLLINS concurs.
Judger BERGER dissents by separate opinion.
- 13 -
No. COA20-44 In the Matter of: A.L.B.
BERGER, Judge, dissenting by separate opinion.
The majority correctly determined that the trial court erred when it entered a
Level III disposition without first referring the juvenile to area mental health services
pursuant to N.C. Gen. Stat. § 7B-2502(c). However, the juvenile has failed to show
that she was prejudiced by this error, and I respectfully dissent.
N.C. Gen. Stat. § 7B-2502(c) states in part, “[i]f the court believes, or if there
is evidence presented to the effect that the juvenile has a mental illness or a
developmental disability, the court shall refer the juvenile to the area mental health
. . . services director for appropriate action.” N.C. Gen. Stat. § 7B-2502(c) (2019). N.C.
Gen. Stat. § 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.’ ” In re E.M., 263 N.C. App. 476, 480, 823 S.E.2d 674, 678 (2019)
(quoting N.C. Gen. Stat. § 7B-2502(c)).
Ms. Kendall Higgins testified for the juvenile at the disposition hearing. Ms.
Higgins was the area mental health services director and the individual to whom the
juvenile should have been referred to under Section 7B-2502(c). Ms. Higgins testified
to the recommendations provided by licensed clinical care providers with “A New
Place,” the juvenile’s current healthcare provider. Additionally, Ms. Higgins testified
to the recommendations in the juvenile’s person centered plan (“PCP”), and a 2018
IN RE A.L.B.
Berger, J., dissenting
clinical assessment of the juvenile was presented to the trial court. According to Ms.
Higgins, a PCP is a treatment plan “developed by a clinician and a family. It’s
supposed to be a joint effort by the client, family [ ], and the provider that really
outlines their treatment goals based on what’s recommended in the comprehensive
clinical assessment.” Based on the juvenile’s assessments, Ms. Higgins recommended
to the trial court that the juvenile be placed in a Level V PRTV in-patient treatment
facility.
The juvenile’s court counselor testified that the juvenile was a flight risk and
that the Department of Juvenile Justice had exhausted all efforts and available
services. Based on the juvenile’s disposition level, the court counselor recommended
that she be placed in a secure Youth Development Center (“YDC”).
According to the juvenile’s court counselor, the juvenile would not be successful
in an in-patient treatment facility as recommended by the area mental health
services director. From the testimony of the court counselor, the juvenile’s five prior
documented incidents as a runaway, her three separate adjudications on new
charges, and her admitted drug use, among other factors, were not compatible with
the lax security at an in-patient treatment facility. Specifically, the court counselor
testified that less restrictive options would not meet the juvenile’s risks and needs
because the juvenile had stated that “she doesn’t care where we put her, she’s going
to take another car and run away.”
-2-
IN RE A.L.B.
Berger, J., dissenting
The court counselor also testified that the juvenile had violated juvenile
probation several times, and “[s]he could’ve gone to the YDC based on the violation I
filed prior to her picking up this newest charge, but we wanted to put her on an ankle
monitor and give her an opportunity to be successful.” The juvenile cut off the ankle
monitor.
The court counselor further testified that he did not recommend commitment
to YDCs often. With this juvenile, however, YDC was recommended because “our
biggest concern was the number of times she’s stolen a car and the danger [to] herself
and the community when she’s running away, and the choices that she makes when
she’s not being supervised.”
In addition, the court counselor testified that the juvenile would receive the
same or similar services at a YDC that were available at in-patient treatment
facilities. The primary difference between in-patient treatment and YDC, according
to the court counselor, was that a YDC afforded the juvenile and the public greater
protection because it was a gated facility. The juvenile’s court counselor testified that
at a YDC, the juvenile would have access to education, social skills classes, living
skills, medication management, and mental health services including individual
therapy, group therapy, and psychological evaluations.
-3-
IN RE A.L.B.
Berger, J., dissenting
After hearing these recommendations and weighing the difference between the
in-patient treatment facility and a secure YDC, the trial court placed the juvenile in
a secure YDC.
The trial court considered Ms. Higgins’ testimony and recommendations for
placement of the juvenile. Ms. Higgins, the area mental health services director, is
the individual to whom the juvenile should be referred to under Section 7B-2502. If
this matter were remanded to the trial court, the juvenile would be referred to the
area mental health services director for evaluation. Thus, the majority seeks to send
this case back to the trial court for referral to Ms. Higgins so the trial court can again
decide between a secure YDC facility and that of the lax security of an in-patient
treatment facility. Essentially, the majority seeks to have the trial court weigh the
same options.
Further, a trial court is not bound by the recommendations of the area mental
health services director. See N.C. Gen. Stat. § 7B-2501(c). While Section 7B-2502(c)
references institutionalization based on consent, or lack thereof, that Section in no
way removes or eliminates a trial court’s discretion for dispositional alternatives
under Section 7B-2501(c), or otherwise requires a trial court to delegate its authority
to the area mental health services director. See N.C. Gen. Stat. § 7B-2502(c) (“If the
parent, guardian, or custodian refuses to consent to institutionalization after it is
-4-
IN RE A.L.B.
Berger, J., dissenting
recommended by the area mental health [services] . . . director, the signature and
consent of the court may be substituted for that purpose.” (emphasis added)).
Pursuant to N.C. Gen. Stat. § 7B-2501(c), the court has the discretion to “select
a disposition that is designed to protect the public and to meet the needs and best
interests of the juvenile.” N.C. Gen. Stat. § 7B-2501(c). That is precisely what the
trial court did here based on the facts of the case, and the testimony provided by the
area mental health services director and the juvenile’s court counselor. YDC
commitment was necessary to address the seriousness of the juvenile’s persistent
delinquent behavior, hold the juvenile accountable, protect public safety, and allow
the juvenile to have rehabilitative treatment. After consideration of the factors in
Section 7B-2501(c), the court placed the juvenile in a secure YDC as “the appropriate
plan to meet the needs of the juvenile[.]”
Because the trial court was not required to delegate its authority to the area
mental health services director, and because the trial court considered the same
dispositional alternatives it will on remand, the juvenile has failed to demonstrate
that she was prejudiced by the trial court’s error.
-5-