Commitment to Division of Youth Services; Commission of Additional Offenses

Subject:

Requested By: Dr. Sarah T. Morrow Secretary Department of Human Resources

Questions: Can a juvenile committed to the Division of Youth Services who commits additional offenses and is placed in jail or detention be released to his parents after bail is provided for such offenses?

 

1.  
2. If not, does the Division of Youth Services have a legitimate claim to return the juvenile to training school?

    

Conclusions: 1. With regard to a juvenile who commits additional offenses subsequent to commitment to the Division of Youth Services:

a.

A juvenile who has not been released from a Division pursuant to G.S. 7A-655 is not entitled to bail.

b.

A juvenile who has been conditionally released from the Division as provided in G.S. 7A-655 may be placed in secure custody pending a hearing to determine if the offenses alleged constitute a violation of the terms of the release.

c.

A juvenile who has been finally discharged from the Division under G.S. 7A-655 may be entitled to pretrial release for offenses allegedly committed subsequent to discharge.

2. The Division of Youth Services may have a legitimate claim to return a juvenile to training school in two situations: (1) where no release has been executed pursuant to G.S. 7A-655 and (2) where the juvenile is released from the Division by conditional release, and an order for secure custody is issued pending a revocation hearing as provided in G.S. 7A-656. Final discharge of a juvenile from the Division bars a claims by the Division to return him to training school for offenses allegedly committed subsequent to discharge.

Analysis of pertinent provisions of the North Carolina Juvenile Code, G.S. 7A-516, et seq., is crucial to resolution of the questions presented. It is clear that after notice, hearing, and a finding of probable cause, a district court may transfer jurisdiction over a juvenile to superior court (1) if the juvenile was at least fourteen years old at the time he allegedly committed the offense and (2) the offense is a felony if committed by an adult. Where the judge finds probable cause to believe that the offense charged has been committed by the juvenile and the alleged felony constitutes a capital offense, jurisdiction must be transferred to the superior court for trial as in the case of adults. G.S. 7A-608. The following language embodied in G.S. 7A-611 sets forth when a juvenile is entitled to be considered for pretrial release:

"Once the order of transfer has been entered, the juvenile has the right to pretrial release as provided in G.S. 15A-533 and G.S. 15A-534. Pending release under this Article, the judge may order that the juvenile be detained in a juvenile detention home or a separate section of a local jail as provided by G.S. 7A-576." (Emphasis added).

The proposition that a juvenile is not entitled to bail, as a matter of right, where jurisdiction is not transferred to superior court is further buttressed by G.S. 7A-631, governing an adjudicatory hearing to determine the existence or nonexistence of allegations in the petition for juvenile delinquency. This statute mandates that the presiding judge protect several rights of the juvenile and his parents, including the right to written notice of the allegations in the petition, counsel, confrontation of witnesses, the privilege against self-incrimination, discovery and all rights afforded adult offenders. However, the rights to bail, self-representation, and trial by jury are clearly excluded from the aforementioned list of protected rights.

Once a juvenile is committed to the Division of Youth Services as provided in G.S. 7A-652, the questions presented may arise in three distinct situations: (1) commission of an offense before release from the Division as provided in G.S. 7A-655 which governs conditional release and final discharge; (2) commission of an offense while on conditional release; and (3) commission of an offense subsequent to final discharge.

When a juvenile commits an offense as described in the first situation, it would appear that he is not entitled to release pending trial of the offense charged inasmuch as there exists an outstanding order of commitment to the Division. Moreover, there are strong policy considerations which weigh against release. To allow pretrial release in this situation may lead to two unwarranted and undesired consequences: first, the disposition reached in the initial juvenile proceeding would be thoroughly defeated, and second, allowing pretrial release may have the effect of encouraging committed delinquent juveniles to commit offenses solely to procure their release. Indeed a position denying pretrial release in this situation is not only the better approach, but it is consistent with G.S. 7A-631, which excludes, inter alia, a juvenile’s right to bail from "protected rights" afforded to adult offenders. For these reasons, the considerations of pretrial release referred to in G.S. 7A-611 do not apply to this situation.

Turning to the second situation, a juvenile placed on conditional release, by its very nature, presumably is at liberty at the time of the alleged offense, but he remains subject to the court’s "continuing jurisdiction" under G.S. 7A-652(g). A violation of the terms of conditional release may result in a revocation hearing as provided in G.S. 7A-656. Additionally, the Division may request an order for secure custody as set forth in G.S. 7A-574(b). If the request is granted, the juvenile will not remain free pending the hearing as is apparent from the following language of

G.S. 7A-574(d):

"In determining whether secure custody should be ordered, the judge should consider the nature and circumstances of the offense; the weight of the evidence against the juvenile; the juvenile’s family ties, character, mental condition, and school attendance record; and whether the juvenile is on conditional release. If the criteria for secure custody as set out in subsections (b) and (c) (of

G.S. 7A-574) are met, the judge may enter an order directing an officer or other authorized person to assume custody of the juvenile and to take the juvenile to the place as is designated in the order." (Emphasis added).

If a juvenile meets the criteria set forth in G.S. 7A-574(b), he may be temporarily detained in an approved county detention home or a regional detention facility which must be separate from any jail, lockup, prison, or other adult penal institutions. G.S. 7A-576(b). By statutory definition, the Director of the Division of Youth Services is responsible for the supervision of detention services, such as those provided through a detention home or regional detention facility. G.S. 7A517(4), G.S. 7A-517(15) and G.S. 7A-517(26). Thus, in light of the aforementioned statutory provisions, a juvenile on conditional release may remain free pending the revocation hearing unless an order for secure custody has been issued. It should be noted that the Office of the Attorney General recently issued an opinion interpreting the application of the statutory provisions of secure custody to a juvenile who violates probation. See 49 N.C.A.G. 183 (1980).

Finally, discussion of the third situation is reached. Clearly, final discharge under G.S. 7A-655 effectively terminates the court’s right to "continuing jurisdiction" over the juvenile and his parent or guardian relative to the initial delinquency proceeding. Further, the Division’s physical custody of the juvenile is likewise terminated, meaning that complaints or allegations of delinquency arising subsequent to final discharge would require filing of a new petition under

G.S. 7A-560. If a new petition is filed alleging delinquency, the juvenile’s entitlement to pretrial release is governed, in part, by factors set forth in G.S. 7A-608 and G.S. 7A-611, such as the juvenile’s age, the classification of the offense as a felony, and transfer of jurisdiction to the superior court.

Rufus L. Edmisten Attorney General

Reginald L. Watkins Associate Attorney