In Re Walker

191 S.E.2d 702 (1972)

282 N.C. 28

In the Matter of Valerie Lenise WALKER.

No. 26.

Supreme Court of North Carolina.

October 11, 1972.

*707 Wallace C. Harrelson, Public Defender, and J. Dale Shepherd, Asst. Public Defender, for respondent appellant.

Robert Morgan, Atty. Gen., and R. S. Weathers, Asst. Atty. Gen., for State of North Carolina, appellee.

Norman B. Smith, of Smith, Patterson, Follin & Curtis, Greensboro, for respondent appellant's amicus curiae, North Carolina Civil Liberties Union Legal Foundation, Inc.

HUSKINS, Justice:

Appellant Valerie Walker contends that she had a constitutional right to counsel at the hearing on the initial petition alleging her to be an undisciplined child. We first consider whether the Constitution affords her such right.

In In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), the United States Supreme Court held, inter alia, that "the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child." A similar statutory right to counsel for indigent juveniles at a hearing which could result in commitment to an institution is afforded by G.S. § 7A-451(a) (8).

The initial petition alleging that Valerie was an undisciplined child was heard on August 17, 1971. At that time the 1969 version of Article 23, Chapter 7A of the North Carolina General Statutes (Jurisdiction and Procedure Applicable to Children) was in effect. It was not until September 1, 1971, that the present version of that article became effective. See 1971 Session Laws, ch. 1180. Therefore, we must consult the 1969 version to determine whether the hearing of the "undisciplined child" petition was a proceeding "which may result in commitment to an institution in which the juvenile's freedom is curtailed."

The 1969 version of Article 23 of Chapter 7A of the General Statutes, in relevant part, contains the following definitions in G.S. § 7A-278:

"(1) `Child' is any person who has not reached his sixteenth birthday. *708 "(2) `Delinquent child' includes any child who has committed any criminal offense under State law or under an ordinance of local government, including violations of the motor vehicle laws or a child who has violated the conditions of his probation under this article. . . . . . . "(5) `Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home."

G.S. § 7A-286 (1969), after requiring the judge to select the disposition which provides for the protection, treatment, rehabilitation or correction of the child, as may be appropriate in each case, makes the following alternatives available to any judge exercising juvenile jurisdiction: "(4) In the case of any child who is delinquent or undisciplined, the court may: a. Place the child on probation . . .; or b. Continue the case . . .; or, if the child is delinquent, the court may c. Commit the child to the care of the North Carolina Board of Juvenile Correction. . . ." (Emphasis added.)

Despite the somewhat awkward structure of G.S. § 7A-286 (1969), it is clear that under its terms no judge exercising juvenile jurisdiction had any authority upon finding the child to be undisciplined to commit such child to the Board of Juvenile Correction for assignment to a State facility in which the juvenile's freedom is curtailed. The statute permitted incarceration of delinquent children only. A contrary holding by the Court of Appeals in In re Martin, 9 N.C.App. 576, 176 S.E.2d 849 (1970), is apparently based on a misconstruction of the statute and is not authoritative. We emphasize that there was no authority under G.S. § 7A-286 (1969) for the commitment of an undisciplined child to the North Carolina Board of Juvenile Correction where the child may be assigned to a State facility in which the juvenile's freedom is curtailed.

Therefore, we hold that neither Gault, supra, nor G.S. § 7A-451(a)(8) afforded Valerie Walker the right to counsel at the hearing on the initial petition alleging her to be an undisciplined child, for under the wording of G.S. § 7A-286(4) (1969) that hearing could not result in her commitment to an institution in which her freedom would be curtailed. Nor would there be such a right under the statute as presently written. See G.S. § 7A-286(5) (1971).

Appellant would have this Court go further than Gault requires. She argues for the right to counsel at the hearing of an undisciplined child petition on the theory that such a hearing is a critical stage in the juvenile process since it subjects the child to the risk of probation and since a violation of probation means that the child is delinquent and subject to commitment. In such fashion appellant seeks to engraft upon the juvenile process the "critical stage" test used by the United States Supreme Court in determining the scope of the Sixth Amendment right to counsel in criminal prosecutions. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). We find no authority for such engraftment. Whatever may be the proper classification for a juvenile proceeding in which the child is alleged to be undisciplined, it certainly is not a criminal prosecution within the meaning of the Sixth Amendment which guarantees the assistance of counsel "in all criminal prosecutions." In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd. 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).

The right to counsel delineated in Gault has not been extended to other procedural steps in juvenile proceedings. Neither *709 this Court nor the United States Supreme Court has ever applied the "critical stage" test to the juvenile process. Accordingly, we hold that counsel is not constitutionally required at the hearing on an undisciplined child petition. See In re Gault, supra (n. 48) in which it is stated: "[W]hat we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process."

The fact that a child initially has been found to be undisciplined and placed on probation is merely incidental to a later petition and motion alleging delinquency based on violation of the terms of probation. The initial finding can never legally result in commitment to an institution in which the juvenile's freedom is curtailed. It is only the latter petition and motion, and the finding that the child is a delinquent child by reason of its conduct since the initial hearing, that may result in the child's commitment. See G.S. § 7A-286(4) (b) and (c) (1969). Compare State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970).

Appellant's second contention is that G. S. § 7A-286 violates the Equal Protection Clause of the Fourteenth Amendment in that it subjects an undisciplined child to probation and the concomitant risk of incarceration when the child has committed no criminal offense, while adults are subjected to probation and incarceration only for actual criminal offenses. See G.S. § 15-197.

The Equal Protection Clause "avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369 (1911). Thus, if a classification is "based on differences that are reasonably related to the purposes of the Act in which it is found", then it does not offend the Equal Protection Clause, Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957); State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972), unless the classification affects "fundamental" interests or is "inherently suspect," e.g., Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), in which event it "must be closely scrutinized and carefully confined", and the State must advance a "`compelling interest' which justifies imposing such heavy burdens" in order for the classification to be constitutional. Harper v. Virginia State Board of Elections, supra; Williams v. Rhodes, supra. A showing of mere rationality is insufficient.

The purpose of the Juvenile Court Act "is not for the punishment of offenders but for the salvation of children". Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (1905). The Act treats "delinquent children not as criminals, but as wards, and undertakes . . . to give them the control and environment that may lead to their reformation, and enable them to become law-abiding and useful citizens, a support and not a hindrance to the commonwealth." State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920). The State must exercise its power as "parens patriae to protect and provide for the comfort and well-being of such of its citizens as by reason of infancy . . . are unable to take care of themselves." County of McLean v. Humphreys, 104 Ill. 378 (1882). Thus, juveniles are in need of supervision and control due to their inability to protect themselves. In contrast, adults are regarded as self sufficient.

Therefore, the classification here challenged is based on differences between adults and children; and there are so many valid distinctions that the basis for *710 challenge seems shallow. These differences are "reasonably related to the purposes of the Act"that is, to provide children the needed supervision and control. Consequently, the classification does not offend the Equal Protection Clause under the test laid down in Morey v. Doud, supra; and even if it be said that the classification here challenged affects "fundamental interests" or is "inherently suspect," it is our view that the desire of the State to exercise its authority as parens patriae and provide for the care and protection of its children supplies a "compellingly rational" justification for the classification.

The conclusion we reachthat G.S. § 7A-278 and related statutes do not violate the Equal Protection Clause by classifying and treating children differently from adultshas also been reached in numerous cases upholding juvenile Acts in other states. "These juvenile statutes have been construed, applied and upheld in many decisions of this Court including State v. Burnett, supra (179 N.C. 735, 102 S.E. 711); State v. Coble, 181 N.C. 554, 107 S.E. 132; In re Hamilton, 182 N.C. 44, 108 S.E. 385; In re Coston, 187 N.C. 509, 122 S.E. 183; Winner v. Brice, 212 N.C. 294, 193 S.E. 400. Furthermore, statutes similar to our own have been held constitutional in over forty states against a variety of attacks. In re Gault, supra [387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527]. See Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, 1966 Supreme Court Review 167, 174." In re Burrus, supra, 275 N.C. 517, 169 S.E.2d 879.

Appellant makes the further contention that North Carolina's statutory scheme, G.S. §§ 7A-278(5), 7A-285 and 7A-286(2) and (4), allowing a child to be adjudged undisciplined and placed on probation without benefit of counsel, while at the same time requiring counsel before a child may be adjudged delinquent, denies equal protection of the laws to the undisciplined child.

This argument has no merit and cannot be sustained. The Equal Protection Clause is offended only if the classifications of "undisciplined" and "delinquent" rest on grounds wholly irrelevant to the achievement of the State's objective. "State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). In seeking solutions which provide in each case for the protection, treatment, rehabilitation and correction of the child, it is impellingly relevant to the achievement of the State's objective that distinctions be made between undisciplined children on the one hand and delinquent children on the other. The one may need protection while the other needs correction. In our opinion, the statutes under attack embody no violation of the Equal Protection Clause. In a procedural context, as here, the Equal Protection Clause requires no more than the Due Process Clause requires.

Finally, appellant urges that the trial judge's failure to state in his order that he found "beyond a reasonable doubt" that appellant had violated the conditions of her probation was constitutional error under In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

In Winship, the juvenile was accused of stealing $112 from a woman's pocketbook and was brought into juvenile court on a petition alleging him to be delinquent. The juvenile was adjudged delinquent and placed in a training school, subject to confinement for as long as six years. The juvenile judge acknowledged that pursuant to a New York statute his determination of the delinquency issue was based on a preponderance of the evidence. The juvenile, contending that due process required proof beyond a reasonable doubt, carried the case *711 by successive appeals to the Supreme Court of the United States. The Court held that the Due Process Clause requires proof beyond a reasonable doubt in delinquency proceedings wherein the child is charged with an act that would constitute a crime if committed by an adult. Here, Valerie Walker was charged with delinquency by reason of probation violations, none of which violations amounted to a crime. See G.S. § 7A-278(2). Therefore, Winship does not apply to these findings, and is not authority for the argument that the findings here must be made upon proof beyond a reasonable doubt.

Even in cases where Winship applies, we think the failure of the trial judge to state that he finds the facts "beyond a reasonable doubt" is not fatal if the evidence is sufficient to support his findings by that quantum of proof. Of course, the better practice dictates that the judge's order recite affirmatively that the findings are made beyond a reasonable doubt. Even so, since there is no statutorily established quantum of proof in juvenile proceedings in North Carolina, in the absence of record evidence that the trial judge followed some other standard, there is a permissible inference that he followed the applicable law and found the facts beyond a reasonable doubt as required by Winship. Compare Chappell v. Winslow, 258 N.C. 617, 129 S.E.2d 101 (1963) (rebuttable presumption that when court sits without a jury it ignores incompetent evidence and acts only on competent evidence); State ex rel. Jones v. Griggs, 223 N.C. 279, 25 S.E.2d 862 (1943) (in absence of findings, presumption that trial judge found such facts as would support his rulings); State v. Hines, 266 N.C. 1, 145 S.E.2d 363 (1965) (jury charge not in record, presumption that charge is correct).

This record reveals that the basic requirements of due process and equal protection with respect to the adjudication of delinquency were fully met. No error of law by the courts below has been made to appear. For the reasons stated, the result reached by the Court of Appeals upholding the order entered by Judge Gentry is

Affirmed.

BOBBITT, Chief Justice (dissenting).

Valerie Lenise Walker, who was born April 14, 1957, appeals from an order entered October 27, 1971, which, based on a finding that Valerie was a delinquent child, committed her to the North Carolina Board of Juvenile Correction, to be and remain in the custody and under the control and supervision of the officials thereof until discharged in accordance with law. The basis for the finding that Valerie was a "delinquent child" was that she had violated the conditions of probation set forth in an order of August 19, 1971, which adjudged that Valerie was an "undisciplined child."

The order of August 19, 1971, had been entered by Judge Gentry after a hearing on August 17, 1971, on a petition filed by Mrs. Katherine Walker, Valerie's mother, which asserted, in the phraseology of G.S. § 7A-278(5), that Valerie was an "undisciplined child." This order recites that Valerie, Mrs. Walker, and Mrs. Jones, Court Counselor, were present for the hearing. The record before us does not show what evidence was then heard. Valerie was not represented by counsel at this hearing on August 17th.

On September 21, 1971, a petition filed by Mrs. Jones, Court Counselor, asserted that Valerie "ha[d] violated Conditions No. 1, 2, and 3 of the probation order dated August 19, 1971." Judge Gentry found that Valerie was an indigent person and appointed the Public Defender to represent her.

In Valerie's behalf, the Public Defender moved that the order dated August 19, 1971, be vacated; that Valerie be given a plenary hearing on the allegations contained in the petition filed August 2, 1971; and that she be provided counsel to represent her at such hearing. Exception was taken to the court's denial of this motion.

*712 Thereafter, the court heard testimony relating to Valerie's conduct subsequent to August 19th. An assistant solicitor offered the testimony of Mrs. Walker, Valerie's mother, of Mr. Howard King, Assistant Superintendent of the Junior High School which Valerie attended, and of "the Probation Officer." Valerie alone testified in her own behalf.

For present purposes, I accept as valid the conditions of probation and the sufficiency of the evidence to support Judge Gentry's findings that Valerie's conduct subsequent to August 19th was in violation of the conditions of her probation.

The applicable statutory provisions quoted below appear in G.S. Volume 1B, Replacement 1969.

G.S. § 7A-278(5) provides: "`Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home."

G.S. § 7A-278(2) provides: "`Delinquent child' includes any child who has committed any criminal offense under State law or under an ordinance of local government, including violations of the motor vehicle laws or a child who has violated the conditions of his probation under this article." (Our italics.)

G.S. § 7A-285 includes the following: "The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278(2) through (5) which have been alleged to exist, and to make an appropriate disposition to achieve the purposes of this article. In the adjudication part of the hearing, the judge shall find the facts and shall protect the rights of the child and his parents in order to assure due process of law, including the right to written notice of the facts alleged in the petition, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-in-crimination. In cases where the petition alleges that a child is delinquent or undisciplined and where the child may be committed to a State institution, the child shall have a right to assigned counsel as provided by law in cases of indigency." (Our italics.)

Valerie was found delinquent and committed solely on the ground she had violated certain of the probation conditions imposed when she was adjudicated an "undisciplined child" on August 19th. The adjudication that she was an "undisciplined child" was absolutely essential to a valid commitment for violation of probation conditions. The Court holds that she was entitled to assigned counsel only at the final hearing to determine whether the probation conditions had been violated. In my opinion, she was equally entitled to assigned counsel at the earlier hearing to determine whether she should be adjudged an "undisciplined child."

Here a fourteen-year-old girl was brought before the juvenile court upon the complaint of her mother. Absent counsel, she stood alone before the court. In addition to the statutory requirement, it is my opinion that due process required that counsel be assigned to represent her at any hearing which might result in an adjudication prejudicial to her.

For the reasons indicated, I would reverse the decision of the Court of Appeals, vacate Judge Gentry's order of October 27, 1971, and remand the cause with direction that a plenary hearing be conducted when Valerie is represented by counsel for de novo consideration and determination of the charge in the original petition that she is an "undisciplined child."

SHARP, J., joins in this dissenting opinion.