Institute of Government
The University of North Carolina at Chapel Hill
In September, 1997, the Hunt administration appointed the Governor's Commission on Juvenile Crime and Justice to conduct a thorough and comprehensive review of North Carolina's juvenile justice system.
The commission, aided by four advisory committees, looked at issues relating to (1) prevention, (2)agency structure, (3) the Juvenile Code, and (4) sanctions for juvenile offenders. In March 1998 the commission issued its Final Report, containing sixty-one recommendations for changes in the state's juvenile justice system and laws. Nearly identical bills (H 1373 and S 1260) reflecting these recommendations occupied House and Senate Judiciary Committees for much of the General Assembly's 1998 session.
Enacted near the end of the session, the Juvenile Justice Reform Act, S.L. 1998-202 (S 1260) (the Act), represents the first complete review and revision of the state's juvenile laws since 1979. It enacts many of the commission's recommendations, including substantial changes in the procedures and sanctions that apply to delinquent and undisciplined juveniles.
Effective Dates and Applicability
The creation of the Department of Juvenile Justice and Delinquency Prevention and other provisions relating to agency structure became effective January 1, 1999.
The new Juvenile Code, G.S. Chapter 7B, becomes effective July 1, 1999, and it applies only to acts committed on or after that date. The effective date for existing provisions relating to the registration of certain juvenile sex offenders remains October 1, 1999.
Timing of Adjudicatory Hearing
S.L. 1998-229 (H 1720), the Adoption and Safe Families Act, amended G.S. 7A-629, effective January 1, 1999, to require that the adjudicatory hearing in all juvenile cases be held no later than sixty days from the filing of the petition, unless the court orders that it be held at a later time. From January 1, 1999, through June 30, 1999, this requirement applies to cases of undisciplined and delinquent juveniles as well as to abuse, neglect, and dependency cases. The new code that becomes effective July 1, 1999, however, includes this requirement only for abuse, neglect, and dependency cases. It requires that adjudicatory hearings in cases of undisciplined and delinquent juveniles be held within a reasonable time.
Some agency directives and study provisions became effective when the Juvenile Justice Reform Act became law on October 27, 1998.
Department of Juvenile Justice and Delinquency Prevention
Juvenile justice functions have long been carried out by two divisions in separate departments and
branches of state government. The Division of Youth Services of the Department of Health and Human Services (DHHS) has been responsible for juvenile detention facilities, youth development centers, and community-based alternatives. The Juvenile Services Division of the Administrative Office of the Courts (AOC) in the Judicial Department has provided screening, intake, probation, and aftercare (supervision following release from youth development center) services.
The General Assembly created in the Office of the Governor a new Department of Juvenile Justice and Delinquency Prevention (DJJDP) and transferred to that department the powers, duties, and
responsibilities (as well as related property, personnel, records, and funds) of the two divisions. The DJJDP is created by a new Article 3C in G.S. Chapter 147, which became effective January 1, 1999, but is amended effective July 1, 1999, to make its terminology and substantive provisions consistent with the new Juvenile Code that takes effect on that date.
Powers and Duties
The DJJDP, and the Governor as its head, have most of the powers and duties of the two consolidated divisions as well as additional ones. These include the power or duty to:
- adopt rules applicable to local human services agencies that provide juvenile court and delinquency prevention services, for purposes of program evaluation, fiscal audits, and third-party payment collections;
- establish procedures for substance abuse testing for juveniles adjudicated delinquent for substance abuse offenses;
- plan, develop, and coordinate statewide multidisciplinary services and programs for delinquency prevention, early intervention, and the rehabilitation of juveniles;
- assist local governments and private service agencies in developing juvenile court and delinquency prevention services;
- develop a match-based formula for funding juvenile court and delinquency prevention services, based on counties' relative abilities to fund community-based programs;
- assist the Criminal Justice Information Network Governing Board with the administration of a
comprehensive juvenile justice information system;
- develop a statewide plan for training and professional development for juvenile justice
personnel;where statistics indicate a disproportionate presence of minority youth in juvenile
facilities, develop and recommend strategies to ensure fair and equal treatment in the juvenile justice system;
- develop a comprehensive delinquency and substance abuse prevention plan, coordinate with county Juvenile Crime Prevention Councils (described below) for implementation of a continuum of community-level services and programs, and report the plan to the State Advisory Council on Juvenile Justice and Delinquency Prevention (described below);
- by April 1 each year, beginning in 2000, report to the General Assembly on the effectiveness and cost benefit of every program operated and contracted by the DJJDP.
The DJJDP also is required to develop a funding mechanism for local programs that meet state standards, to fund programs that it determines are effective in preventing delinquency and recidivism, and not to fund programs that have proven to be ineffective. It must develop a funding formula that ensures that even the smallest counties will be able to provide basic prevention and alternative services. The DJJDP is directed to allow and encourage local flexibility to determine how best to allocate prevention and alternatives funds and to allow and encourage counties to combine resources and services. It also must ensure that local Juvenile Crime Prevention Councils (described below) evaluate all state-funded programs and services on an ongoing basis.
Courthouse Space for Court Counselors
An amendment to G.S. 7A-302 requires counties to provide office space for juvenile court counselors and support staff as assigned by the DJJDP.
The Act describes the transfer of responsibilities to the DJJDP as temporary. It requires the Governor, by April 1, 2000, to develop and report to the General Assembly a proposed reorganization plan for transferring the authority, powers, duties, and functions of the DJJDP to a new or existing principal state department. The reorganization plan takes effect only if the General Assembly approves it. In developing the plan, the Governor must (1) review all agency divisions, councils, and programs that provide services to and treatment of juveniles to determine whether they would operate more effectively and efficiently if consolidated and (2) study methods by which federal and state funds are distributed locally to determine whether those functions should be consolidated, whether funding priority should be given to certain programs, and whether matching funds should be required from local governments. The plan must address:
- organizational structure, including total personnel and reporting relationships;
- a proposed budget for fiscal year 2000-2001;
- any proposed consolidation of any additional division, council, or program; and
- all reorganization options that were considered but not adopted, and why they were not adopted.
State Advisory Council on Juvenile Justice and Delinquency Prevention
- Creation and Membership
This new nineteen-member council in the DJJDP is charged with advising the DJJDP in the
development of a comprehensive interagency plan to reduce juvenile delinquency and substance abuse and to coordinate efforts among state agencies serving juveniles. The members include the following:
- five persons appointed by the Governor;
- four persons appointed by the Chief Justice of the state Supreme Court; and
- the following, or their designees, ex officio: the Governor, the Chief Justice of the Supreme Court, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Director of the Administrative Office of the Courts, the Superintendent of Public Instruction, the Secretary of the Department of Administration, the Secretary of the Department of Health and Human Services, the Secretary of the Department of Correction, and the Secretary of the Department of Crime Control and Public Safety.
Members, other than the ex officio members, serve staggered, renewable two-year terms. The Governor and Chief Justice will co-chair the council, which meets as needed.
The council's duties include (1) advising the DJJDP and all state agencies that serve juveniles; (2)
reviewing and commenting on federal juvenile justice grant applications; (3) reviewing the juvenile justice system's operation and prioritization of funding needs; (4) reviewing the progress and accomplishments of state and local juvenile justice projects; (5) developing recommendations about priorities and needed improvements and reporting them to the General Assembly on or before March 1 each year, beginning in 2000; and (6) reviewing and commenting on the proposed budget for the DJJDP.
County Juvenile Crime Prevention Councils
Creation and Membership
The Act requires the board of commissioners of each county, as a prerequisite for receiving funding for juvenile court services and delinquency prevention programs, to appoint a Juvenile Crime Prevention Council to act as a local juvenile justice planning body. Two or more counties may establish a multicounty council, with a membership that is representative of each participating county. A council may consist of no more than twenty-five members, must reflect the racial and socioeconomic diversity of the community, and should include, if possible, the following:
- the local school superintendent(s) (or designee),
- a chief of police,
- the local sheriff (or designee),
- the district attorney (or designee),
- the chief court counselor (or designee),
- the director of the area mental health, developmental disabilities, and substance abuse authority (or designee),
- the director of the county department of social services or consolidated human services agency (or designee),
- the county manager (or designee),
- a substance abuse professional, a member of the faith community,
- a county commissioner, a person under the age of twenty-one,
- a juvenile defense attorney,
- the chief district court judge (or a district court judge designated by that person),
- a member of the business community,
- the local health director (or designee),
- a representative from the United Way or other nonprofit agency,
- a representative of a local parks and recreation program,
- and up to seven members of the public.
Members serve staggered, renewable two-year terms. A council must meet at least once a month and elect a chair and vice-chair annually.
Each council must (1) annually review the needs of juveniles in the county who are at risk of delinquency, or who have been adjudicated undisciplined or delinquent, and the resources available to address the needs; (2) develop and advertise a request-for-proposal process and submit a written plan of action for the expenditure of juvenile justice funds to the board of county commissioners for its approval and submission to the OJJ; and (3) ensure that appropriate intermediate dispositional options are available and prioritize funding for intermediate and community-level dispositions. (Dispositional levels are described below.) Councils may consider joint program development between counties within the same judicial district.
The local councils are required, on an ongoing basis, to
- assess the needs of juveniles in the community, evaluate available resources, and develop or propose ways to address unmet needs;
- evaluate the performance of juvenile services and programs in the community;
- increase public awareness of the causes of delinquency and strategies to reduce the problem;
- develop strategies to respond to and treat the needs of juveniles at risk for delinquency;
- provide funds for treatment, counseling, or rehabilitation services for juveniles and their families, including court-ordered parenting responsibility classes; and
- plan for the establishment of a permanent funding stream for delinquency prevention services.
Authority of Juvenile Court Counselors
The authority of court counselors formerly set out in G.S. 110-23 is continued with several changes in new G.S. 147-33.51, effective January 1, 1999. Instead of the outdated language that gave court counselors the powers of peace officers, the new section specifically authorizes court counselors (1) to serve necessary court documents pertaining to delinquent and undisciplined juvenile matters, (2) to assume custody of juveniles under the court's jurisdiction when necessary to protect the public or the juvenile and to carry out their statutory responsibilities, and (3) to use reasonable force and restraint when necessary to secure custody of a juvenile. It also specifies that court counselors must assist in the development of aftercare (after July 1, 1999, post-release supervision) and the supervision of juveniles, presumably referring to juveniles who are released from youth development centers.
Former G.S. 7A-289.6 set out additional duties and powers of court counselors, and these are not carried over into the new code. For the most part, they are included effectively either in new G.S. 147-33.51, which says that court counselors shall have any other duties as the court may direct, or in Juvenile Code provisions, such as those relating to probation review and termination. Omitted from the new code, however, is the language in former G.S. 7A-289.6(1), which prohibited the preparation of a social study of a juvenile before adjudication without the written consent of the juvenile and the juvenile's parent, attorney, guardian, or custodian.
New Juvenile Code
Effective July 1, 1999, a new Juvenile Code, G.S. Chapter 7B, becomes effective and the existing code, Subchapter XI of G.S. Chapter 7A, is repealed. The new code separates provisions relating to abuse, neglect, and dependency from those relating to undisciplined and delinquent juveniles, which the former code often addressed together. It also incorporates various other laws (from G.S. Chapters 7A, 110, and 134A) that formerly were not part of the code. These include statutes relating to termination of parental rights, the Guardian Ad Litem program, prevention of child abuse and neglect, the North Carolina Child Fatality Prevention System, parental control of children, juvenile services, youth services, and interstate placements of juveniles. The new code does not retain the current law's provisions for a Juvenile Law Study Commission.
New G.S. Chapter 7B is divided into five subchapters, as follows:
I. Abuse, Neglect, Dependency
II. Undisciplined and Delinquent Juveniles
III. Juvenile Records
IV. Parental Authority; Emancipation
V. Placement of Juveniles
Many parts of the new code retain the substance of current law. In relation to delinquent and undisciplined juveniles, however, the new code reflects major substantive changes.
In relation to delinquent and undisciplined juveniles, the new Juvenile Code places a stronger emphasis on protection of the public, on deterring juvenile delinquency, on the timeliness of juvenile justice procedures, and on juveniles' and parents' accountability. At the same time, it continues to emphasize, in the dispositional phase of juvenile proceedings, the evaluation of juveniles' needs and the provision of appropriate treatment and rehabilitative services. It provides substantially more structure for the court in determining dispositions, including whether a delinquent juvenile will receive services in the community or in a training school. In relation to custody and placement decisions, it replaces the least restrictive standard with a most appropriate standard.
Subchapter II of G.S. Chapter 7B (the part of the new code that deals with undisciplined and delinquent juveniles) includes the following newly defined terms.
- House arrest means a requirement that the juvenile remain at the juvenile's residence unless the court or the juvenile court counselor authorizes the juvenile to leave for specific purposes.
- Post-release supervision, which replaces the term aftercare, means supervision of a juvenile who is returned to the community after having been committed to the DJJDP for placement in a youth development center.
- Teen court program means a community resource for the diversion of certain cases for a hearing by a jury of the juvenile's peers, who may require the juvenile to participate in counseling, make restitution, abide by a curfew, or participate in community service or other rehabilitative services.
- youth development center means a secure residential facility authorized to provide long-term treatment, education, and rehabilitative services for delinquent juveniles committed by the court to the DJJDP.
The new code does not use the term in loco parentis. Instead, the substance of the former definition appears in places where the term previously appeared. Changes in the definition of undisciplined juvenile are described in the following section.
Jurisdiction over Undisciplined Juveniles
The Act rewrites the definition of undisciplined juvenile and thereby extends the applicability of juvenile procedures and the court's jurisdiction to include sixteen- and seventeen-year-olds (except for the part of the definition that refers to unlawful absence from school). The maximum age of jurisdiction for dispositional purposes continues to be eighteen. Jurisdiction may terminate earlier by order of the court, and it terminates automatically if the juvenile is emancipated.
For all juveniles, the new definition of undisciplined juvenile includes runaways only if they run away from home for a period of more than twenty-four hours. The previous definition did not specify any period of time.
Jurisdiction over Delinquent Juveniles
The definition of delinquent juvenile continues to refer to juveniles who commit crimes or infractions while at least six years of age and not yet sixteen. As under former law, a juvenile who commits a criminal offense on or after the juvenile's sixteenth birthday is subject to prosecution as an adult.
The Act provides that if a juvenile has been transferred to and convicted in superior court, the juvenile is subject to prosecution as an adult for any offense the juvenile commits after the superior court conviction. This expands somewhat superior court jurisdiction over juveniles. Previously, a juvenile who was transferred to and convicted in superior court was subject to further prosecution as an adult only for offenses the juvenile committed (1) after the juvenile had been sentenced for a felony offense and (2) while the juvenile was under the active supervision of the superior court.
Ordinarily, the juvenile court's jurisdiction over a delinquent juvenile continues until it is terminated by court order or the juvenile reaches age eighteen, whichever occurs first. (The juvenile's emancipation does not affect the court's jurisdiction in relation to delinquent acts the juvenile committed before being emancipated.) In two circumstances, however, the new code provides for extended jurisdiction.
- When a juvenile is committed to the DJJDP for placement in a youth development center for an offense that would be first-degree murder, first-degree rape, or first-degree sexual offense if committed by an adult, jurisdiction continues until terminated by court order or until the juvenile reaches the age of twenty-one years, whichever occurs first.
- When a juvenile is committed to the DJJDP for placement in a youth development center for an offense that would be a Class B1, B2, C, D, or E felony (other than the offenses set forth in the preceding provision) if committed by an adult, jurisdiction continues until terminated by court order or until the juvenile reaches the age of nineteen years, whichever occurs first.
Although not a change from former law, the new code provides explicitly that the court has jurisdiction over delinquent juveniles who are in the custody of the DJJDP.
Jurisdiction over Parents
As under former law, the court has jurisdiction over a juvenile's parent, guardian, or custodian if that person has been served with a summons in the case of an undisciplined or delinquent juvenile. Under new G.S. 7B-1805, the summons must give the parent, guardian, or custodian notice of the kinds of orders the court may enter at disposition. It also must notify the parent, guardian, or custodian that proceedings for contempt may result from that person's failure, without reasonable cause, to
- attend scheduled hearings,
- bring the juvenile before the court at any hearing the juvenile is required to attend, or
- comply with any order of the court.
Screening, Intake, and Diversion
Many provisions relating to screening and intake remain the same as under former law. A new time limit requires the intake counselor, if he or she approves a petition for filing, to file the petition within fifteen days (with a possible fifteen-day extension) from the date the complaint is received (the same time period within which the intake counselor must decide whether to approve the petition for filing). Except as described below in relation to diversion plans, the intake counselor must destroy any complaint that is not approved for filing as a petition, after holding it for a temporary period to allow for review by the prosecutor if the complainant requests a review.
The new code changes dramatically the concept and use of diversion, potentially expanding greatly the involvement of court counselors with juveniles whose cases do not go to court. Specified offenses continue to be non-divertible. The intake counselor must approve a petition for filing if he or she finds reasonable grounds to believe that the juvenile committed murder, first- or second-degree rape, first- or second-degree sexual offense, arson, a felony drug offense under Article 5 of G.S. Chapter 90, first-degree burglary, crime against nature, a felony involving the willful infliction of serious bodily injury, or a felony committed by use of a deadly weapon. In any other case in which the intake counselor finds that the complaint is legally sufficient, the intake counselor may divert the juvenile pursuant to a diversion plan, which may include referral to:
- an appropriate public or private resource,
- community service,
- victim-offender mediation,
- regimented physical training, or
If the district has a teen court program, the intake counselor may refer the juvenile to it but only if the juvenile has not been referred previously to a teen court program and only if the offense involved would be an infraction or misdemeanor if committed by an adult. Referral to teen court is not allowed, however, if the offense involved is driving while impaired or any other motor vehicle violation, a Class A1 misdemeanor, an assault in which a weapon is used, or a controlled substance offense other than simple possession of a Schedule VI drug or alcohol.
As part of a diversion plan the intake counselor, the juvenile, and the juvenile's parent, guardian, or custodian may enter into a diversion contract that sets out
- conditions by which the juvenile agrees to abide and any actions the juvenile agrees to take;
- conditions by which the parent, guardian, or custodian agrees to abide and any actions that person agrees to take;
- the court counselor's role in relation to the juvenile and the parent, guardian, or custodian;
- the length of the contract, which may not exceed six months; and
- the parties' understanding that the juvenile's violation of the contract may result in the filing of a petition and that the juvenile's successful completion of the contract will preclude the filing of a petition.
The intake counselor must provide the parties with copies of the contract and notify any agency or resource from which any of them have agreed to seek services or treatment.
Within sixty days after diverting a case, the intake counselor must determine whether the juvenile and the parent, guardian, or custodian have complied with the terms of the diversion plan or contract. As part of doing that, the intake counselor must contact any referral resource to determine whether the parties have complied with any recommendations for treatment or services. If the intake counselor determines that the juvenile and the parent, guardian, or custodian have not complied with a diversion plan or contract, he or she may either authorize the filing of the complaint as a petition within ten days after the determination, or continue to monitor the case for up to six months from the date of the plan or contract. During those six months, the intake counselor may reconsider the decision to divert and may authorize the filing of a petition any time he or she determines that the parties have failed to comply with the plan or contract.
If no petition is filed within six months from the date of a diversion plan or contract, the intake counselor must close the file. The intake counselor must retain the diversion plan or contract, however, until the juvenile reaches age eighteen or is no longer under the jurisdiction of the court, whichever is longer. Intake counselors may use these records to determine whether a juvenile has had a complaint diverted previously; however, they are not public records, are not part of the clerk's juvenile record, and must be withheld from public inspection.
Magistrate's Role in the Filing of Petitions
New G.S. 7B-1804 authorizes a magistrate to draw and verify the petition and accept it for filing when
- the office of the clerk of court is closed, and
- an intake counselor requests a petition alleging that a juvenile is delinquent or undisciplined, and
- a petition is required in order to obtain a secure or nonsecure custody order.
In these circumstances, authorization by the chief district court judge is no longer required. The magistrate's acceptance of the petition constitutes filing and commences the action. The petition must be delivered to the clerk's office for processing as soon as that office is open for business.
The wording of the comparable provision relating to abuse, neglect, and dependency petitions, in G.S. 7B-404, was not changed. In those cases, the chief district court judge may authorize a magistrate to draw, verify, and issue petitions at the request of the director of the department of social services when the clerk's office is closed.
First Appearance in Felony Cases
When a delinquency petition alleges that a juvenile has committed a felony, the juvenile must be summoned for a first appearance within ten days after the filing of the petition-a procedure that did not exist under former law. If the juvenile is in secure or nonsecure custody, the first appearance takes place at the first hearing on the need for continued custody. If the juvenile is not in custody, the court may continue the first appearance to a time certain, for good cause. At the first appearance, the court must
- inform the juvenile of the allegations in the petition;
- appoint counsel for the juvenile if the juvenile is not represented by counsel;
- inform the juvenile of the date of the probable cause hearing if one is required;
- and inform the parent, guardian, or custodian that he or she is required to attend all hearings scheduled in the matter and may be held in contempt for failing to do so.
Secure and Nonsecure Custody
Much of the law regarding temporary, nonsecure, and secure custody is unchanged; however, some changes are significant.
Grounds for Secure Custody
Under the new code, one of the grounds for secure custody-that the juvenile is charged with a misdemeanor involving assault on a person-now also requires evidence that the juvenile is a danger to persons. Another provision clarifies that violation of conditions of probation or of post-release supervision is a ground for secure custody only if the juvenile is alleged to have committed acts that damage property or injure persons.
Hearings on Need for Continued Secure Custody
The law continues to require that when a juvenile is in secure custody, either a hearing on the merits or a hearing on the need for continued custody be held within five calendar days. This hearing may not be continued or waived. Further hearings on the need for continued secure custody, unless waived, must be held at intervals of no more than ten calendar days. Thus, after the initial five-day hearing, the new code extends from seven days to ten days the maximum length of time a juvenile may be in secure custody without the opportunity for a hearing.
Hearings on Need for Continued Nonsecure Custody
For juveniles who are alleged to be undisciplined or delinquent and are in nonsecure custody, the law continues to require that an initial hearing be held within seven calendar days and that subsequent hearings, unless waived, be held within seven business days of the initial hearing and, thereafter, at intervals of no more than thirty calendar days. While former law allowed the initial hearing to be continued for up to ten business days, the new code provides that the initial hearing may not be continued or waived. (In cases of juveniles who are alleged to be abused, neglected, or dependent and are in nonsecure custody, the new code still allows a continuance of the initial hearing for up to ten calendar days.)
Audio and Video Transmission
Any hearing on the need for continued custody may be conducted by audio and video transmission that allows the court and the juvenile to see and hear each other. If the juvenile has counsel, the juvenile and counsel must be able to communicate with each other fully and confidentially during the hearing. As a prerequisite to conducting hearings in this manner, the chief district court judge must submit the procedures and type of equipment to be used to the Administrative Office of the Courts and obtain that office's approval.
Conditions of Release
When a juvenile is released from secure custody, the court may impose appropriate restrictions on the juvenile's liberty. Former law required the court to impose the least restrictive interference.
Use of Jails
Jail Space as Detention Facility
New G.S. 147-33.45 authorizes the Department of Juvenile Justice and Delinquency Prevention to plan with any county to use existing space within its county jail system for a juvenile detention facility when needed. The space must meet state standards and the requirements of G.S. 153A-221. Juveniles detained in jails may not converse with, see, or be seen by the adult population, and must be supervised closely.
Secure Custody in Holdover Facility
In the new code, G.S. 7B-1905(c) provides that if a petition alleges that a juvenile committed a Class A, B1, B2, C, D, or E felony and grounds exist for secure custody, the juvenile may be placed in a holdover facility for up to seventy-two hours, but only if the court, based on information provided by the court counselor, determines that no acceptable alternative placement is available and the protection of the public requires that the juvenile be housed in a holdover facility. Like present law, the new code defines a holdover facility as a place in a jail which has been approved by the Department of Health and Human Services as meeting the State standards for detention as required in G.S. 153A-221 providing close supervision where the juvenile cannot converse with, see, or be seen by the adult population. When a chief district court judge, by administrative order, delegates to the chief court counselor or that person's staff authority to issue secure custody orders, the judge may not delegate authority to order that a juvenile be housed in a holdover facility.
Holdover Facility Pending Youth Development Center Placement If the court commits a juvenile to the Department of Juvenile Justice and Delinquency Prevention for youth development center placement after the juvenile is adjudicated delinquent for a Class A, B1, B2, C, D, or E felony, the court may order that the juvenile be housed in a holdover facility for up to seventy-two hours, but only if the court determines, from information provided by the court counselor, that no acceptable alternative placement is available and that protection of the public requires that the juvenile be housed in a holdover facility.
Law Enforcement Procedures in Delinquency Cases
Action after Taking Juvenile into Custody
The new code retains the former law's list of possible courses of action available to a law enforcement officer who takes a juvenile into temporary custody without a court order. It directs officers to take the action most appropriate to the situation, the needs of the juvenile, and the protection of the public safety, adding the reference to public safety and deleting reference to the least restrictive approach appropriate under the circumstances.
Fingerprints and Photographs without Nontestimonial Identification Order New G.S. 7B-2102 requires a law enforcement officer or agency to fingerprint and photograph a juvenile when all of the following circumstances exist:
- The juvenile was ten years of age or older when the juvenile allegedly committed a nondivertible offense (murder, first- or second-degree rape, first- or second-degree sexual offense, arson, a felony drug offense under Article 5 of G.S. Chapter 90, first-degree burglary, crime against nature, a felony involving the willful infliction of serious bodily injury, or a felony committed by use of a deadly weapon);
- A complaint has been prepared for filing as a petition;
- The juvenile is in the physical custody of law enforcement or of the Department of Juvenile Justice and Delinquency Prevention.
Unless fingerprints and a photograph were taken under that provision and have not been destroyed, a law enforcement officer or agency also must photograph and fingerprint a juvenile who has been adjudicated delinquent, if the juvenile was ten years of age or older when the juvenile committed an offense that would be a felony if committed by an adult. This provision existed in former law, but applied only in cases involving Class A through E felonies.
If a juvenile's fingerprints and photograph are taken before adjudication (under the first provision), they must be destroyed at the earliest of the following events.
- Neither the intake counselor nor the prosecutor files a petition against the juvenile within one year after the fingerprints and photograph were taken.
- The court does not find probable cause.
- The juvenile is not adjudicated delinquent of any offense that would be a felony or misdemeanor if committed by an adult.
The chief court counselor is responsible for notifying the local custodian of records when one of these events occurs.
Fingerprints and photographs taken under either provision must be in proper format for transfer to the State Bureau of Investigation (SBI) and the Federal Bureau of Investigation. If the juvenile is adjudicated delinquent for a felony, the fingerprints must be transferred to the SBI and placed in the Automated Fingerprint Identification System (AFIS). The fingerprints and photographs may be used for all investigative and comparison purposes. They are not public records, may not be included in the clerk's record, and must be maintained separately from any juvenile record and withheld from public inspection. They are not eligible for expunction.
Nontestimonial Identification Order for Blood Specimen
With the following exception, provisions for conducting nontestimonial identification procedures on juveniles are substantially unchanged. Under new G.S. 7B-2105, the sworn affidavit supporting a request to obtain a blood specimen from a juvenile must establish that there is:
1.probable cause to believe that an offense has been committed that would be a felony if committed by an adult;
2.probable cause to believe (not, as with requests to conduct other procedures, just reasonable grounds to suspect) that the juvenile named or described in the affidavit committed the offense; and
3.probable cause to believe that obtaining a blood specimen from the juvenile will be of material aid in determining whether the juvenile committed the offense.
Notice of Hearings
Under new G.S. 7B-1807, unless the party is notified in open court or the court orders otherwise, the clerk must give five days' written notice of the date and time of all scheduled hearings to all parties, including both of the juvenile's parents, the juvenile's guardian or custodian, and any person who has assumed the status and obligation of a parent without being awarded legal custody of the juvenile.
Like former law, the new code (1) requires that a hearing involving a delinquent or undisciplined juvenile be open to the public if the juvenile requests that it be open, and (2) does not give the juvenile a right to a closed hearing. The new code, in fact, makes open hearings the standard. The judge may exclude the public from a hearing or part of a hearing only for good cause and only if the juvenile has not requested an open hearing. In deciding whether to close a hearing or part of a hearing, the court must consider the circumstances of the case, including the following:
- the nature of the allegations,
- the juvenile's age and maturity, the benefit to the juvenile of confidentiality,
- the benefit to the public of an open hearing,
- and the extent to which the confidentiality of the juvenile's file will be compromised by an open hearing.
Even if the court, on motion of a party or its own motion, closes a hearing or part of a hearing, it may allow any victim, member of a victim's family, law enforcement officer, witness, or other person directly involved in the hearing to be present.
Probable Cause and Transfer Hearings
The new code retains many of the former law's provisions relating to probable cause hearings and the transfer of cases to superior court. It continues to require the court (1) to conduct a probable cause hearing in any case in which a juvenile is alleged to be delinquent for committing a felony offense while age thirteen, fourteen, or fifteen; (2) upon finding probable cause to believe that the juvenile committed first-degree murder, to transfer the case to superior court for trial as in the case of an adult; and (3) upon finding probable cause to believe that the juvenile committed any other felony, to determine on a case-by-case basis whether the juvenile should remain in juvenile court or be transferred to superior court for trial as an adult.
The new code also contains several substantial changes. It requires that the probable cause hearing be held within fifteen days after the juvenile's first appearance unless the court continues it for good cause. It clarifies that the court may transfer a case to superior court on the court's own motion as well as on the motion of the prosecutor or of the juvenile's counsel. It specifies that the probable cause hearing and the hearing on transfer to superior court are separate. They may occur on the same day, however, unless the juvenile has not received at least five days' notice of the intent to seek transfer and requests a continuance.
Former law required the court to determine whether the needs of the juvenile or the best interest of the State would be served by transferring the case to superior court. The new code requires the court to determine whether the protection of the public and the needs of the juvenile would be served by transfer. Unlike former law, which provided no further guidance regarding decisions to transfer, the new code requires the court to consider the following factors:
- the juvenile's age;
- the juvenile's maturity;
- the juvenile's intellectual functioning;
- the juvenile's prior record;
- prior attempts to rehabilitate the juvenile;
- facilities or programs available to the court during the time it would have jurisdiction over the juvenile and the likelihood that the juvenile would benefit from treatment or rehabilitative efforts;
- whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;and
- the seriousness of the offense and whether the protection of the public requires that the juvenile be prosecuted as an adult.
It does not require the court to make findings of fact regarding these factors but retains the requirement that any order of transfer specify the reasons for transfer.
Appeal of Transfer Order
A substantial change from former law allows the juvenile to appeal the juvenile court's transfer order to superior court for a hearing on the record. Notice of appeal must be given in open court or in writing within ten days after the transfer hearing. If notice of appeal is given and not withdrawn within the ten-day period, the superior court, within a reasonable time, must review the record of the transfer hearing for abuse of discretion in transferring the case to superior court. The superior court may not review the juvenile court's probable cause findings. After reviewing the record, the superior court must either remand the case to district court for adjudication or uphold the transfer order. If the superior court remands the case, the juvenile court determines whether the juvenile should be in secure or nonsecure custody pending adjudication.
If the juvenile does not appeal to superior court, the juvenile may not raise the issue of transfer before the court of appeals until after final disposition of the case in superior court. If the juvenile does appeal, the order of the superior court is interlocutory, and the juvenile may appeal the issue of transfer to the court of appeals only after the juvenile has been convicted in superior court.
These provisions nullify the effect of a state supreme court decision interpreting the former statute. In State v. T.D.R., 347 N.C. 489, 495 S.E.2d 700 (1998), the court held (1) that an order transferring a juvenile's case to superior court was a final order that the juvenile could appeal immediately to the court of appeals and (2) that the superior court did not have authority to conduct appellate review of the juvenile court's transfer order.
The new code requires that the adjudicatory hearing for a juvenile alleged to be undisciplined or delinquent be held "within a reasonable time."
As described above, however, the Adoption and Safe Families Act, S.L. 1998-229, amended G.S. 7A-629, effective January 1, 1999, to require that an adjudicatory hearing be held no later than sixty days from the filing of the petition, unless the court orders that it be held at a later time. That section applies to all juvenile cases. Thus, this requirement applies to adjudicatory hearings for juveniles alleged to be undisciplined or delinquent for acts committed between January 1, 1999, and July 1, 1999.
The new code continues former code provisions relating to the preparation and disclosure of predisposition reports. It adds a requirement that a risk and needs assessment be conducted and attached to the report. The assessment must contain information about the juvenile's social, medical, psychiatric, psychological, and educational history and factors indicating the probability that the juvenile will commit further delinquent acts. Another new provision allows the court to proceed with a dispositional hearing without a predisposition report if no report is available and the court makes a written finding that one is not needed.
As explained above (page 4, "Authority of Juvenile Court Counselors"), the provisions of former G.S. 7A-289.6, which required written consent before conducting a pre-adjudication social study of a juvenile alleged to be delinquent or undisciplined, are not included in the new law.
The Act directs the DJJDP to develop a risk and needs assessment instrument and to consider including the following information:
- the juvenile's living situation;
- drug or alcohol use by the juvenile or a member of the juvenile's household or immediate family;
- the juvenile's school attendance; and
- the juvenile's family, including any criminal history.
The DJJDP must present the recommended instrument to the Joint Legislative Commission on Governmental Operations by May 1, 1999.
Evaluation and Treatment of Undisciplined and Delinquent Juveniles
As under former law, after a juvenile is adjudicated undisciplined or delinquent, the court may order that the juvenile be examined by a physician, psychiatrist, psychologist, or other expert or, when there is evidence that the juvenile is mentally ill or developmentally disabled, refer the juvenile to the area mental health, developmental disabilities, and substance abuse services agency. This authority and related provisions about hearing requirements and payment are carried over from former G.S. 7A-647(3) into new G.S. 7B-2502.
In addition, after a juvenile is adjudicated delinquent, the court may require the juvenile to be tested for the use of controlled substances or alcohol. If the juvenile was adjudicated delinquent for an offense involving the possession, use, sale, or delivery of alcohol or a controlled substance, the court must order such testing within thirty days of the adjudication. Results of these initial tests may be used only for evaluation and treatment purposes.
Dispositions for Undisciplined Juveniles
The dispositional alternatives available to the court in the case of an undisciplined juvenile remain the same, with important exceptions relating to protective supervision and enforcement. As under the former code, the court may (1) require that the juvenile be supervised in the juvenile's own home; (2) place the juvenile in the custody of a parent, guardian, relative, private agency, or some other suitable person; (3) place the juvenile in the custody of the county department of social services; (4) excuse the juvenile from the compulsory school attendance law; and (5) place the juvenile under the protective supervision of a court counselor.
The court may place an undisciplined juvenile on protective supervision for a maximum of three months, with an extension of up to three months in the court's discretion. (The former maximum was one year.) The court may impose specific conditions of protective supervision. They must be related to the juvenile's needs and may include conditions that the juvenile
- remain on good behavior and not violate any laws;
- attend school regularly;
- maintain passing grades in up to four courses during each grading period and meet with the court counselor and a school representative to make a plan for maintaining passing grades;
- not associate with specified persons or be in specified places;
- abide by a prescribed curfew;
- report to a court counselor as often as required by a court counselor;
- be employed regularly if not attending school; and satisfy any other conditions that the court determines are appropriate.
On motion of the court counselor or the court's own motion, the court may order an undisciplined juvenile to appear and show cause why the juvenile should not be held in contempt for willfully failing to comply with an order of the court. The court must appoint counsel for a juvenile who is alleged to be in contempt unless counsel is retained for the juvenile. For a first finding of contempt, the court may order the juvenile confined in an approved detention facility for up to twenty-four hours; for a second finding, up to three days; and for a third or subsequent finding, up to five days. The court in its discretion determines the timing of any confinement. The new section, G.S. 7B-2505, prohibits confining a juvenile for contempt for more than fourteen days in one twelve-month period.
Dispositions for Delinquent Juveniles
The new code retains many dispositional alternatives that were available in delinquency cases under the former law and adds additional alternatives. As explained below, however, not all dispositions are available in every case. The code directs the court, in choosing among those that are available, to select the most appropriate disposition-not, as required previously, the least restrictive disposition that is appropriate. Within the statutory guidelines, the court must select a disposition designed to protect the public and to meet the needs and best interests of the juvenile, based on the following:
- the seriousness of the offense;
- the need to hold the juvenile accountable;
- the importance of protecting the public safety;
- the degree of culpability indicated by the circumstances of the case;
- the rehabilitative and treatment needs of the juvenile, as indicated by a risk and needs assessment; and
- except where commitment to youth development centers is required, appropriate community resources available to meet the juvenile's needs.
In addition to the evaluation and treatment options described above, the new code lists twenty-four dispositional alternatives and divides these into three "levels"-community, intermediate, and commitment. (One disposition, placement in a wilderness program, is assigned to two levels.) The level or levels from which the court may or must select in ordering a disposition in a given case depend on the seriousness of the offense and the juvenile's delinquency history level.
Fair Treatment for Victims and Witnesses
Article 45 of G.S. Chapter 15A lists thirteen things that employees of law enforcement agencies, the prosecutorial system, the judicial system, and the correctional system should make a reasonable effort to accomplish for victims and witnesses of crimes. The article defines "victim" as a person against whom there is probable cause to believe that a crime has been committed. It defines "crime" to include, among other things, any act committed by a juvenile that, if committed by a competent adult, would constitute a felony. Section 19.4 of S.L. 1998-212 (S 1366) rewrites that part of the definition to also include delinquent acts that would be serious misdemeanors.
S.L. 1998-212 also adds to G.S. Chapter 15A a new Article 45A, the Crime Victims' Rights Act, which creates substantive rights and obligations relating to crime victims and witnesses. The new article does not apply to delinquent acts committed by juveniles.
The new code retains the requirements for an annual computation and report of the recidivism rates of juveniles adjudicated delinquent for A through E felony offenses, but transfers these responsibilities from the Administrative Office of the Courts to the Department of Juvenile Justice and Delinquency Prevention and changes from December 1 to February 15 the date by which the report must be made.
Authority over Parent, Guardian, or Custodian
The new code requires the parent, guardian, or custodian of a juvenile under the juvenile court's jurisdiction to attend all hearings of which that person has notice, unless the court has excused the person's appearance at a particular hearing or all hearings. The willful failure to attend, unless excused, is a ground for contempt.
A new provision prohibits any employer from discharging, demoting, or denying a promotion or other benefit of employment to any employee because of that person's compliance with this or other obligations the code places on a juvenile's parent, guardian, or custodian. The code charges the Commissioner of Labor with enforcing the prohibition pursuant to Article 21 of G.S. Chapter 95. In that chapter, G.S. 95-241(a) is rewritten to prohibit any person from discriminating or taking retaliatory action against an employee because the employee in good faith complies or threatens to comply with those obligations under the Juvenile Code.
After adjudication that a juvenile is undisciplined or delinquent, the court may order the juvenile's parent, guardian, or custodian to
cooperate with and assist the juvenile in complying with the terms and conditions of probation or other court orders;
attend parental responsibility classes, if these are available in the judicial district in which that person resides;
provide transportation, to the extent the person is able to do so, for the juvenile to keep appointments with a court counselor or to comply with other orders of the court.
If the court finds that a parent is able to do so, the court may order the parent to
pay a reasonable sum for the support of the juvenile;
pay a fee for probation supervision or residential facility costs;
assign private insurance coverage to cover medical costs while the juvenile is in detention, youth development center, or other out-of-home placement;
pay court-appointed attorney fees.
In addition, the new code retains former provisions relating to the court's authority to order a parent to cooperate with, participate in, undergo, or pay for various types of evaluation and treatment in specified circumstances.
On motion of the court counselor or prosecutor or the court's own motion, the court may issue an order directing a parent, guardian, or custodian to appear and show cause why that person should not be found in civil or criminal contempt for willfully failing to comply with an order of the court.
Many provisions relating to the records of delinquent and undisciplined juveniles, including rules for the use of delinquency records in subsequent criminal proceedings, are unchanged. However, efforts to balance appropriate confidentiality and appropriate disclosure resulted in some significant changes. In several instances the new code clarifies a person's ability to obtain copies of records that the person has a right to inspect.
The Clerk's Record
The court may direct the clerk to "seal" any portion of a juvenile's record, so that it may be examined only by court order. Otherwise, the clerk's record may be examined, and copies of written parts of the record may be obtained, by
Electronic or mechanical recordings of hearings that are part of a record may be transcribed only when notice of appeal has been given, and they may be copied electronically or mechanically only by order of the court.
A prosecutor may share information from a juvenile's record with law enforcement officers sworn in this state but may not allow the officers to photocopy any part of the record. In making "pretrial release and plea negotiating decisions," law enforcement, the magistrate, and the prosecutor may use a juvenile's record of an adjudication of delinquency for an offense that would be a felony if committed by an adult.
Law Enforcement Records
The following persons may examine and obtain copies of law enforcement records and files concerning a juvenile without a court order:
the juvenile's parent, guardian, or custodian, or that person's authorized representative;
the district attorney or prosecutor;
law enforcement officers sworn in this state.
The following persons may examine and obtain copies of DJJDP records and files concerning a juvenile without a court order:
the juvenile's parent, guardian, or custodian, or that person's authorized representative;
professionals in the agency who are directly involved in the juvenile's case;
and court counselors.
The new code raises from sixteen to eighteen the age at which a person may apply for expunction of a record that the person (1) was adjudicated undisciplined or delinquent or (2) was alleged, but not adjudicated, to be undisciplined. To obtain expunction of a delinquency record, a person also must show that at least eighteen months have elapsed since the person was released from juvenile court jurisdiction. No records maintained by the court counselor or by a residential facility operated by the Department of Juvenile Justice and Delinquency Prevention may be destroyed until the juvenile reaches age eighteen or until eighteen months have elapsed since the person was released from juvenile court jurisdiction, whichever is later.
As soon as practicable after each term of court, the clerk of court must file with the AOC the names of persons granted an expunction of juvenile records. The AOC must maintain a confidential file of those names, which may be disclosed only to North Carolina judges for the purpose of ascertaining whether a person charged with an offense has been granted an expunction.
After a person's juvenile record is expunged, that person and his or her parent may not be found guilty of perjury or of giving a false statement for failing to acknowledge the record.
Disclosure of Information about Juveniles
Information Sharing among Agencies
New G.S. 7B-3100 directs the DJJDP, after consultation with the Conference of Chief District Court Judges, to adopt rules designating local agencies that are authorized to share information relevant to any case in which a petition has been filed alleging that a juvenile is undisciplined, delinquent, abused, neglected, or dependent. Former G.S. 7A-675(h), much of which is retained in the new section, applied only to abuse, neglect, and dependency cases, and directed the chief district court judge in each district to designate the agencies by administrative order. Information that agencies share pursuant to the section may be used only for the protection of the juvenile and others or to improve the educational opportunities of the juvenile.
Disclosure by or to Schools
Information that is shared by schools pursuant to G.S. 7B-3100, described above, must be released in accordance with the federal Family Educational Rights and Privacy Act. An amendment to G.S. 115C-404(b) prohibits a school's use of information gained pursuant to G.S. 7B-3100 as the sole basis for a decision to suspend or expel a student. The new code, in G.S. 7B-3101, continues the requirement that court counselors notify schools of certain occurrences in cases of juveniles alleged or found to be delinquent for felony offenses. Amendments to G.S. 115C-404(a) specify when a school must destroy information it obtains under either G.S. 7B-3100 or G.S. 7B-3101.
In addition to statutory duties described earlier, the Juvenile Justice Reform Act or the Appropriations Act (S.L. 1998-212) imposes a number of specific responsibilities on state agencies and departments. Only some of these are described below.
Minority Sensitivity Training
The DJJDP must ensure that all juvenile court counselors and other DJJDP personnel receive minority sensitivity training and must conduct the training annually. The Department of Justice must develop guidelines for minority sensitivity training for all law enforcement personnel and, except where local law enforcement already has training that satisfies the guidelines, conduct the training annually. In addition, the DJJDP and the Department of Justice must ensure that all personnel who work with minority juveniles in the juvenile justice system are taught to communicate effectively with minority juveniles and to recognize and address their needs. The Chief Justice of the state Supreme Court must consider ensuring that judges who hear juvenile cases receive minority sensitivity training.
Assessment of Treatment of Minority Juveniles
The DJJDP must study the overrepresentation of racial minorities in the juvenile justice system, compare the dispositions for minority juveniles adjudicated delinquent or undisciplined with the dispositions for nonminority juveniles, compare the services made available to minority and nonminority juveniles and their families, and make recommendations as to how any disparities should be addressed. The Department of Justice is required to assess annually whether minorities are receiving fair and equal treatment in the juvenile justice system.
Screening and Prevention Programs
The DJJDP must ensure that programs providing screenings that can identify delinquency risk factors continue to be used in a consistent, coordinated, and cost-effective way. In addition, the DJJDP must evaluate screening and prevention programs and identify any legal or policy bars to effective cooperation.
Plan for Community-Based Dispositions
The DJJDP must develop a cost-effective plan for statewide community-based dispositional alternatives for delinquent juveniles. The plan must include a funding strategy to encourage communities to provide local resources, services, and treatment options. In developing the plan, the DJJDP must consider specified community-based alternatives and recommend which judicial districts with high crime rates should have nonresidential day reporting centers to provide intensive supervision for juveniles.
Pilot On-Track Program
The DJJDP was directed to establish a phased-in, ten-county pilot On Track program as an additional probation option for certain delinquent juveniles who are subject to Level 2 dispositions. Each juvenile in the program will receive supervision and intense intervention from a special On Track court counselor and will be assigned a trained mentor. Other components of the program include risk and needs assessments, responsibility contracts, restitution requirements, parental accountability, counseling, and graduation upon a juvenile's completion of the program.
Pilot Guard Response Alternative Sentencing Programs
The DJJDP must establish three pilot Guard Response Alternative Sentencing Programs, through contract services, in three district court districts. These programs will provide an additional probation option for certain first-time juvenile offenders who are subject to Level 2 dispositions.
The DJJDP must study the use of detention facilities and make recommendations as to how they can be used more efficiently.
In cooperation with the Department of Public Instruction, the of Juvenile Justice must study more effective and efficient ways to coordinate case management, provide needed services to juveniles, and provide maximum protection to the public and to schools.
The State Board of Education is required to study the feasibility and advisability of delaying the start of the school day. If the board recommends a delay in the start of the school day, it must consider whether schools should provide early morning supervision for students whose parents work and do not have child care available.
Through the Department of Public Instruction, the State Board of Education must study ways to provide an alternative educational program for any student who is suspended or expelled from school. The act amended G.S. 115C-47 to encourage local boards of education to establish alternative learning programs and, where such programs exist, to require local boards to adopt guidelines for assigning students to them.
Criminal Justice Information Network
The act amended G.S. 143-661(a) to expand the purpose of the Criminal Justice Information Network to include the sharing of juvenile justice information among law enforcement, judicial, and corrections agencies. It requires the Criminal Justice Information Network Governing Board to
develop a juvenile justice information plan for creation of the juvenile justice information system, to ensure that the system will enable the state to evaluate the efficiency and effectiveness of the juvenile justice system as well as to monitor and evaluate the progress of individual juveniles;
develop a comprehensive juvenile justice information system pursuant to the plan, including a system to collect specified data and information about every juvenile alleged to be delinquent;
study the most appropriate methods and procedures for obtaining, retaining, and releasing fingerprints and photographs of juveniles alleged to be delinquent;
and consider issues relating to the expunction of juvenile records.