Social Services; Juvenile Code; Secure and Nonsecure Custody of Juveniles

Subject:

Social Services; Juvenile Code; Secure and Nonsecure Custody of Juveniles.

Requested By:

The Honorable Willis P. Whichard, Senator North Carolina General Assembly

Questions:

1. May a juvenile alleged to be undisciplined by virtue of being a runaway be held in secure custody for more than 24 hours?

2. May a juvenile alleged to be undisciplined by virtue of being truant or disobedient be held in secure custody?

3. May a juvenile who has been adjudicated delinquent and placed on probation later be placed in secure custody if that juvenile violates the terms of his probation without at the same time committing a new delinquent act?

Conclusions:

1. No, under G.S. 7A-574(b)(9) such a runaway may not be held more than 24 hours in secure custody.

2. No.

3. Yes, a delinquent juvenile who violates probation may be held in secure custody pending further disposition of his case according to G.S. 7A-574(c) & (d).

The three questions posed ask this Office to construe provisions of the new Juvenile Code, G.S. 7A-516, et seq. One of the new features of the Code is the secure custody order which is the legal mechanism by which certain delinquent and undisciplined juveniles may be held under lock and key pending hearing and disposition of their cases. The criteria for secure custody orders are set forth in G.S. 7A-574(b). Nine separate criteria for secure custody appear in G.S. 7A-574(b). Only one speaks expressly to the undisciplined juvenile. (Seven speak to delinquent juveniles, and one speaks to self-destructive juveniles.) The section concerning undisciplined juveniles is G.S. 7A-574(b)(9), and it says the following:

"(The) judge may order secure custody only where he finds there is a reasonable factual basis to believe that the juvenile actually committed the offense as alleged in the petition, and that the juvenile alleged to be undisciplined by virtue of being a runaway should be detained for a period of less than 24 hours to facilitate reunion with parents or to facilitate evaluation of the juvenile’s need for medical or psychiatric treatment."

These questions arise concerning this provision. First, it is suggested that G.S. 7A-572(a)(3)a implies that other undisciplined juveniles may also be the subject of secure custody orders. Whatever the implication of G.S. 7A-572, the express language of G.S. 7A-574(b) says "only" those undisciplined juveniles who are runaways may be detained under a secure custody order. Second, use of the word "should" in subdivision (9) leads to the suggestion that in some cases runaway juveniles may be detained for more than 24 hours. This is incorrect. The word "should" in subdivision (9) means that the judge must ask if secure custody is necessary for any particular runaway juvenile. Only in cases where secure custody is necessary may it be ordered. But in no case may it extend beyond 24 hours.

Third, it is suggested that subdivision (9) conflicts with the Interstate Compact on Juveniles, G.S. 7A-684, et seq. The Compact applies to, among others, runaways from states other than North Carolina which are parties to it. G.S. 7A-688. The Compact provides the following:

"Upon reasonable information that a person is a juvenile who has run away from another state party to the Compact without the consent of a parent, guardian, person or agency entitled to legal custody, such juvenile may be taken into custody without a requisition and brought forthwith before a judge of the appropriate court who may appoint counsel or guardian ad litem for such person and who shall determine after a hearing whether sufficient cause exists to hold the person, subject to the order of the court, for his own protection and welfare, for such time not exceeding 90 days as will enable his return to another state party to this Compact. . . ." G.S. 7A-688(a) (Emphasis added)

The Compact procedures and remedies are "in addition to and not in substitution for" other procedures, rights and remedies under State law. G.S. 7A-686. While the juvenile court is the proper court to hold Compact hearings, G.S. 7A-523(1), the procedures of G.S. 7A-588(a), described above, are markedly different from those in the typical juvenile court abuse, neglect, dependency, delinquency or undisciplined behavior case. The "requisition" is unknown in juvenile court other than under the Compact. Likewise, the hearing which must be held forthwith after the child is taken into custody, differs markedly from the Code hearings on continued secure custody. Among other differences, the Compact hearing need not be repeated every week. Compare G.S. 7A-688 with G.S. 7A-577(g).

The Compact rule defining the maximum age of a juvenile also differs from that set by the other parts of the Juvenile Code. Under the Compact, a juvenile is "any person who is a minor of the state of residence of the parent, guardian, person or agency entitled to legal custody." G.S. 7A-688(c). Compare G.S. 7A-517(2) and (28) which sets the age of juveniles at 18 for most Code purposes but at 16 for undisciplined children. This age difference is crucial. It shows beyond doubt that, for example, a 17 year old runaway Virginia may be subject to the jurisdiction of North Carolina courts through the Compact, whereas a 17 year old runaway North Carolinian is outside the jurisdiction of the State courts because of the Code. The former is a "runaway" under the Compact; the latter is not an "undisciplined juvenile" under the Code. The secure custody rules of G.S. 7A-574(b) only apply to undisciplined juveniles. The effect is that runaway North Carolinians alleged to be undisciplined can be held in custody no longer than 24 hours, while out-of-state runaways can be held here up to 90 days. G.S. 7A-574(b)(9) and G.S. 7A-688(a).

The next question asks whether the Juvenile Code permits a truant or disobedient juvenile, alleged to be undisciplined under G.S. 7A-517(28), to be held in secure custody. It does not. Except as unambiguously stated in G.S. 7A-574(b)(8) and (9), concerning, respectively, self-destructive and runaway juveniles, the Code limits secure custody to juveniles alleged to have committed an "offense". G.S. 7A-574(b). Under the Code juveniles who have committed offenses are by definition delinquent. G.S. 7A-517(12). Therefore, it appears that G.S. 7A-574(b), setting criteria for secure custody, is limited to allegedly delinquent juveniles except where the context unmistakably compels is different reading. Only subdivisions (8) and (9) are so compelling.

In saying what has been said, we are not unaware of subdivisions (3) and (5). The former says secure custody is available when the court finds;

"That the juvenile has willfully failed to appear on the pending delinquency charge or has a record of willful failures to appear at court proceedings."

Granted, the second clause of subdivision (3) can be read to stand alone. Read alone, it makes no reference to delinquency. However, it must be read in pari materia with the first clause which does confine itself to delinquency cases. More particularly, the first clause speaks of "the pending delinquency charge". Use of the definite article "the" can only mean that the "pending delinquency charge" relates back to the "offense" referred to in subsection (b). This is further textural proof that the word "offense" limits G.S. 7A-675(b) to delinquency cases.

Turning to G.S. 7A-574(b)(5), it says secure custody is available when the court finds;

"That exhaustive efforts to identify the juvenile have been futile or by reason of his being a nonresident of North Carolina there is reasonable cause to believe the juvenile will not appear in court on a pending delinquency case unless he is detained."

Here the first clause does not refer explicitly to delinquent juveniles while the second clause does. However, construing them in pari materia, and in light of the word "offense" appearing in the principal clause of subsection (b), and because each of subdivisions (1) through (4) before and (6) and (7) following after are limited to allegations of delinquency, we conclude only allegedly delinquent juveniles can be held in secure custody under either clause subdivision (5).

Finally, it is asked whether the Juvenile Code permits secure custody of a juvenile who has been adjudicated delinquent, placed on probation, violated the probation, but not committed a new delinquent act. The Juvenile Code speaks to probation violations. It says the following:

"If a juvenile violates the condition of his probation, he and his parents, after notice, may be required to appear before the court and the judge may make any disposition of the matter authorized by this act." G.S. 7A-658.

This section in effect requires a second disposition hearing for a probation violator. Pending this new disposition, the probation violator may be held in secure custody, because according to G.S.

7A-574(c),

"When a juvenile has been adjudicated delinquent, the judge may order secure custody pending the dispositional hearing. . . ."

This subsection authorizes secure custody for an adjudicated delinquent in the discretion of the judge. In exercising his discretion, the judge should consider among other things "the nature and circumstances of the offense" and the "juvenile’s family ties, character, mental condition, and school attendance record." G.S. 7A-574(d).

Rufus L. Edmisten Attorney General

Steven Mansfield Shaber Associate Attorney