July 14, 1980
Subject:
Social Services; Juveniles; Delinquents; Secure Custody.
Requested By:
Sarah F. Patterson Courts Specialist Governor’s Crime Commission
Question:
Does G.S. 7A-574(d) prohibit issuance of a secure custody order for a delinquent juvenile prior to adjudication?
Conclusion:
No.
The Juvenile Code, G.S. 7A-516, et seq., provides for the secure and nonsecure custody of juveniles in certain circumstances. Use of secure custody is strictly limited by G.S. 7A-574. There is it said as follows:
"(b) When a request is made for secure custody, 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 (one of nine alternative criteria is satisfied)."
"(c) When a juvenile has been adjudicated delinquent, the judge may order secure custody pending the dispositional hearing or pending placement of a juvenile delinquent pursuant to G.S. 7A-649."
"(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) are met, the judge may enter an order directing an officer or other authorized person to assume custody of the juvenile and take the juvenile to the place as designated in the order." (Emphasis added)
It is suggested in the question that the use of the italicized "and" in G.S. 7A-574(d) means that secure custody is only available after a juvenile has been adjudged delinquent. This cannot be so. Other language in G.S. 7A-574 — and elsewhere — precludes it.
According to G.S. 7A-574(b) secure custody is available where the judge "finds there is a reasonable factual basis to believe that the juvenile actually committed the offense as alleged in the petition." By the time the juvenile is adjudged delinquent, the offense will have been proven by evidence beyond a reasonable doubt. G.S. 7A-635. Therefore, that secure custody is available on a mere showing or probably cause, i.e., "a reasonable factual basis to believe," means secure custody must be available at a time prior to adjudication. In addition, six of the nine alternative findings prerequisite to secure custody, which appear in G.S. 7A-574(b), clearly would precede adjudication hearings. See, G.S. 7A-574(b)(1), (2), (3), (4), (5), and (7). Finally, according to
G.S. 7A-574(d), the need for secure custody depends in part on the "weight of the evidence against the juvenile." This unmistakably means the weight of the apparent evidence against the juvenile prior to the actual adjudication hearing, because after adjudication the weight of evidence against the adjudged delinquent will no longer be of varied weight. It will be firmly established beyond a reasonable doubt.
Turning to other parts of the Code we find that a juvenile may go directly from temporary custody into secure custody. G.S. 7A-572. Now, a juvenile may be taken into temporary custody if "grounds exist for the arrest of an adult in identical circumstances." G.S. 7A-571(1). And temporary custody can last no longer than 12 hours. G.S. 7A-572(a)(4). Since an adjudication hearing cannot be held in a mere 12 hours, the Code clearly contemplates that a juvenile may go from temporary custody to secure custody without an intervening adjudication of delinquency.
In saying that the criteria of subsections (b) and (c) of G.S. 7A-574 need not all be met, we do not blink the ordinary meaning of the little word "and". The word has meaning. But here it simply means that in determining the appropriateness of secure custody, the judge should look to subsections (b) and (c) to see if the appropriate criteria are met. It does not mean the judge must find appropriate criteria in each subsection, but only that he should look to both to find all the alternative criteria.
Rufus L. Edmisten Attorney General
Steven Mansfield Shaber Associate Attorney