In Re Brownlee

Annotate this Case

272 S.E.2d 861 (1981)

In re Scott Webster BROWNLEE.

No. 159.

Supreme Court of North Carolina.

January 6, 1981.

*869 John C. Cooke, Asst. County Atty., Raleigh, for petitioner-appellant, Wake County.

Johnson & Johnson by Sandra L. Johnson, Raleigh, for respondent-appellee, Scott Webster Brownlee.

BRITT, Justice.

The present case brings before this court two principal questions for our consideration: (1) whether Wake County is entitled to appeal from the orders entered by Judge Bason; and (2) whether the district court was empowered to direct the county to provide care for respondent at the Brown Schools in Austin, Texas. These issues are separate and distinct. Accordingly, it is appropriate for us to examine each one independently of the other.

WAKE COUNTY'S RIGHT TO APPEAL

G.S. § 1-271 codifies the common law rule that "[a]ny party aggrieved may appeal in the cases prescribed in this chapter." (Emphasis added.) See Duke Power Co. v. Salisbury Zoning Board of Adjustment, 20 N.C.App. 730, 202 S.E.2d 607, cert. denied, 285 N.C. 235, 204 S.E.2d 22 (1974). One who is not a party to an action or who is not privy to the record is not entitled to appeal from the judgment of a lower court. Siler v. Blake, 20 N.C. 90 (1838).

It is clear that Wake County was not a party to the present action when it came on for hearing before the district court. In his order of 22 August 1980, Judge Bason gave notice to Wake County that the court would turn to the county to bear the cost of providing care for Scott in the event that the North Carolina Department of Human Resources, the Wake County Area Mental Health Program, or the Wake County Board of Education were unable to develop and fund an appropriate program of treatment for the child. In that order, Judge Bason specifically requested the participation of the county in the dispositional hearing which he scheduled for 12 September 1980. In particular, the county was directed to provide the court with "any information and assistance it may wish ... or be able to offer regarding placement of Scott in an appropriate treatment facility which is less expensive than the Brown School." Notwithstanding this notice of the intention of the district court, the county elected not to participate in the dispositional hearing. There is no dispute, upon the present record, that the county had notice of the pendency of the action and was given the opportunity to be heard, both at the dispositional hearing as well as at the earlier hearing.

At the hearing of 18 August 1980, the county argued that it ought not to be a party to the proceeding because "it has never filed a motion or petition and because *870 there is no legal relationship between it and the child." While the factual basis of the county's argument is correct, to so argue, however, is to miss the point. The county had no responsibility to file a motion in the cause. Nor was the county privy to a legal relationship between itself and the child. The pertinent legal relationship was that between respondent and the Division of Youth Services to whom Scott's custody had been committed for the unauthorized use of a motor vehicle. The extent of the county's actual interest in the present case arises from its potential liability for the expenditure of its tax revenues. As such, it had no legitimate interest in the commencement of the action. Instead, its interest is confined to the effect a final disposition of the cause will have upon its financial resources.

Even if the county had been a party, it would not have had the right to appeal from the orders in question. G.S. 7A-667 provides as follows:

An appeal may be taken by the juvenile; the juvenile's parent, guardian, or custodian; the State or county agency. The State's appeal is limited to the following: (1) Any final order in cases other than delinquency or undisciplined cases; (2) The following orders in delinquency or undisciplined cases: a. An order finding a State statute to be unconstitutional; b. Any order which terminates the prosecution of a petition by upholding the defense of double jeopardy, by holding that a cause of action is not stated under a statute, or by granting a motion to suppress.

It is manifest that the statute which is set out above does not empower a county to take an appeal in a juvenile proceeding. While it is true that the Wake County Department of Social Services was given custody of Scott and directed to make all of the necessary arrangements for his transfer to the Brown Schools, that portion of Judge Bason's order cannot be employed as a basis upon which to found a right of appeal under the applicable statute. It is clear that the terminology "county agency" could not have been intended to include the very entity which would create the agency in the first place.

We hold that Wake County did not have the right to appeal from the challenged orders. Nevertheless, this court is authorized to issue "any remedial writs necessary to give it general supervision and control over the proceedings of the other courts" of the state. N.C. Constitution, Article IV, Section 12(1). Under exceptional circumstances this court will exercise power under this section of the constitution in order to consider questions which are not presented according to our rules of procedure; State v. Stanley, 288 N.C. 19, 215 S.E.2d 589 (1975); and this court will not hesitate to exercise its general supervisory authority when necessary to promote the expeditious administration of justice. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C 74, 105 S.E.2d 439 (1958); Park Terrace, Inc. v. Phoenix Indemnity Co., 243 N.C. 595, 91 S.E.2d 584 (1956).

We consider the present case to be of such importance that the expeditious administration of justice requires us to invoke our supervisory authority. The novelty of the issues presented, coupled with the potential liability of the counties of North Carolina, serves to emphasize the proper role of the judiciary in securing a prompt resolution of this matter. While it is true that Wake County was not a formal party to the proceeding before Judge Bason, it does have a significant interest in the outcome of the matter in that its funds have already been expended pursuant to a court order and that its funds are potentially subject to further expenditures pursuant to the directive of the district court. In other words, the county has a cognizable interest in the determination of whether the action of the lower court was authorized by law. Therefore, we elect to treat the papers *871 which have been filed in this court as a motion calling upon the court to exercise its supervisory powers to enable it to review the orders entered by Judge Bason. The motion is allowed, and we will now proceed to examine the cause on its merits.

THE VALIDITY OF THE ORDERS

A careful study of the pertinent statutes leads us to conclude that Judge Bason did not have the authority to require Wake County to pay for Scott's treatment at the Brown Schools in Austin, Texas.

Judge Bason's order of 16 September 1980 states that he was sending Scott to "the Brown Schools for residential treatment pursuant to G.S. 7A-649(6)." G.S. 7A-649 lists ten "dispositional alternatives" that a district court judge has available to him in dealing with delinquent juveniles. G.S. 7A-649(6) provides that a judge may "[o]rder the juvenile to a community-based program of academic or vocational education or to a professional residential or non-residential treatment program. Participation in the programs shall not exceed 12 months". Obviously Judge Bason concluded that the Brown Schools provide "a professional residential ... treatment program".

G.S. 7A-647 provides district court judges with certain dispositional alternatives in dealing with delinquent, undisciplined, abused, neglected, or dependent juveniles. G.S. 7A-647(3) provides as follows:

In any case, the judge may order that the juvenile be examined by a physician, psychiatrist, psychologist or other qualified expert as may be needed for the judge to determine the needs of the juvenile. If the judge finds the juvenile to be in need of medical, surgical, psychiatric, psychological or other treatment, he shall allow the parent or other responsible persons to arrange for care. If the parent declines or is unable to make necessary arrangements, the judge may order the needed treatment, surgery or care, and the judge may order the parent to pay the cost of such care pursuant to G.S. 7A-650. If the judge finds the parent is unable to pay the cost of care, the judge may charge the cost to the county .... (Emphasis added.)

Since our present Juvenile Code, G.S. 7A, Articles 41-54, was enacted by the 1979 General Assembly and became effective on 1 January 1980 (1979 N.C. Sess. Laws c. 815) the courts have had little opportunity to construe its provisions. It is fundamental that legislative intent controls the interpretation of statutes. Housing Authority of the City of Greensboro v. Farabee, 284 N.C. 242, 200 S.E.2d 12 (1973); Person v. Garrett, 280 N.C. 163, 184 S.E.2d 873 (1971). In seeking to ascertain and give effect to the legislative intent, an act must be considered as a whole. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). Statutes which deal with the same subject matter must be construed in pari materia, e. g., Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 256 (1967), and harmonized, if possible, to give effect to each. E. g., Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 166 S.E.2d 78 (1969).

The first section of our Juvenile Code, G.S. 7A-516, provides:

This Article shall be interpreted and construed so as to implement the following purposes and policies: (1) To divert juvenile offenders from the juvenile system through the intake services authorized herein so that juveniles may remain in their own homes and may be treated through community-based services when this approach is consistent with the protection of the public safety; (2) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents; and (3) To develop a disposition in each juvenile case that reflects consideration of *872 the facts, the needs and limitations of the child, the strengths and weaknesses of the family, and the protection of the public safety. (Emphasis added.)

While it is manifest that the express words of the statute which is set out above speak in terms of "this article", it would be inappropriate for us to be oblivious to the public policy objectives which prompted the adoption of the new Juvenile Code by the 1979 General Assembly and which the legislature attempted to articulate in the introductory provisions of the legislation. Prior to the adoption of the Juvenile Code, judges of the district courts who were sitting in juvenile matters had little flexibility in making suitable provision for youthful offenders. Other than committing a juvenile to a county or regional detention home when such was needed for the protection of the community or in the best interest of the child, see G.S. § 110-24 (1978), the judges of the state were empowered only to place juveniles on probation, the conditions and duration of which were to be set out in the appropriate order entered in the cause. See G.S. § 110-22 (1978).

In seeking to introduce greater flexibility in the juvenile justice system of the state, the General Assembly, we think, was echoing the sentiments of the Penal System Study Commission of the North Carolina Bar Association. In its report, As the Twig Is Bent, the Commission observed

Certainly there are young people within our society for whom confinement and rigid discipline may be necessary for both their protection and society's protection. The State must provide a system of dealing with youngsters who become delinquent for whatever reason. It must afford young people maximum opportunities to overcome their problems and to become adults well equipped to take their places in society. Our present system does not achieve this goal. * * * * * * We must establish a continuity of care that begins when the child is arrested and continues through and beyond his incarceration until all reasonable steps have been taken to assure his rehabilitation.

North Carolina Bar Association Penal System Study Commission, As the Twig Is Bent 23 (1972); compare National Advisory Committee on Criminal Justice Standards and Goals, Juvenile Justice and Delinquency Prevention 611-12 (1976).

While the term "community-based program" is a term of art, see G.S. § 7A-517(8) (Cum.Supp.1979), we feel that its usage by the General Assembly reflects its concern that responses to the problems of the juveniles coming before the courts be fashioned in a flexible manner so as to address the best interests of the child in ways other than probation and commitment to training schools. The same subsidiary concept at work in the introductory provisions of the Juvenile Code permeates all of its subsequent provisions: The relationship of family and friends is an important component in the rehabilitative program for a youthful offender, and institutionalization of a child ought not to be ordered except in an extraordinary situation. Otherwise, the stabilizing and motivational attributes of familiar surroundings is lost to the process.

Indeed, the General Assembly has provided in concrete terms an expression of its concern in this regard by stating in G.S. § 7A-646 that

The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction. If possible, the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in care, supervision, and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level services to be provided to the juvenile and his family in order to strengthen the home situation. In choosing among statutorily permissible dispositions for a delinquent juvenile, *873 the judge shall select the least restrictive disposition both in terms of kind and duration, that is appropriate to the seriousness of the offense, the degree of culpability indicated by the circumstances of the particular case and the age and prior record of the juvenile. A juvenile should not be committed to training school or to any other institution if he can be helped through community-level resources. (Emphasis added.)

As we observed earlier, G.S. § 7A-649 provides ten specific alternatives from which the court is empowered to select what it feels to be the most appropriate disposition for a delinquent child. The wide variety and scope of the alternatives which are embodied in the statute's formulation of dispositional alternatives leads us to conclude that it was the legislature's intention that the district courts exercise sound discretion in fashioning an appropriate response to each particular instance of delinquency. The tenth alternative which is provided by the statute is clearly the most severe: commitment of the juvenile to the Division of Youth Services in accordance with the provisions of G.S. § 7A-652. This alternative is the most severe in that it makes no change in the former practice of committing juveniles to state training schools when it was concluded that conditional probation was inappropriate on the facts of the case. Clearly, that alternative ought to be employed only when there is no reasonable alternative open to the court in its disposition of the matter.

A close examination of the other nine alternatives provided by G.S. § 7A-649 indicates that all of them are subsumed within the concept of community-level services. It will be recalled that we earlier observed that community-based program is a term of art defined in the statute itself as being a residential or non-residential treatment program which serves a juvenile in the community in which he lives. Only G.S. § 7A-649(6) is in any way defined in terms of this term of art. Even then, its scope is limited to a program of academic or vocational education. Every other alternative provided by the statute, including the provision of G.S. § 7A-649(6) which authorizes commitment of a child to a professional residential or non-residential treatment program, can be employed in such a manner upon an appropriate court order that the concern of the Juvenile Code that the needs of an individual child be addressed in terms of programs which provide meaningful, community-level efforts which would serve to keep the child in familiar surroundings. It is apparent that such programs would be aided by the fact that a child's rehabilitation in such a program would be aided to a considerable degree by keeping the child among his family and friends, or at the very least, having them within reasonably close proximity to the location where the care is being provided to the child in question.

G.S. § 7A-646 sets forth in clear terms the mandate of the General Assembly in providing for various dispositional alternatives for delinquent juveniles. The statute provides that

... the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in the care, supervision and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level resources to be provided to the juvenile and his family in order to strengthen the home situation. * * * * * * A juvenile should not be committed to training school or any other institution if he can be helped through community-level resources.

While it is true that one of the clear objectives of the juvenile justice system is to fashion a response to the problems of a child within its purview which addresses the particular needs of the child and is in the child's best interests as determined by the court, see In re Vinson, 298 N.C. 640, 260 *874 S.E.2d 591 (1979); compare State v. Burnett, 179 N.C. 735, 102 S.E. 711 (1920), that determination cannot be made in a vacuum. Indeed, in making its decision concerning the disposition of a juvenile, a court exercising its juvenile jurisdiction must also weigh the best interests of the state. See In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd. sub. nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971). What is or is not in the best interest of the child must be determined in tandem with the perception of the legislature as to what is in the best interest of the state as enunciated by the terms of the Juvenile Code and by its general theme as deduced from the impetus behind its enactment.

While G.S. § 7A-649 provides numerous alternatives to be employed in fashioning a suitable disposition for a juvenile delinquent, some of its provisions are not self-executing. It is conceivable that an appropriate disposition of a juvenile's case would require that resources other than those provided by governmental units be employed by the court. No doubt exists in our minds that the General Assembly envisioned such a situation emerging. This conclusion is made clear upon examination of the provisions of G.S. § 7A-647. In that statute, the legislature directed that

In any case, the judge may order that the juvenile be examined by a physician, psychiatrist, psychologist or other qualified expert as may be needed for the judge to determine the needs of the juvenile. If the judge finds the juvenile to be in need of medical, surgical, psychiatric, psychological, or other treatment, he shall allow the parent or other responsible persons to arrange for care. If the parent declines or is unable to make necessary arrangements, the judge may order the the needed treatment, surgery, or care, and the judge may order the parent to pay the cost of such care .... If the judge finds that the parent is unable to pay the cost of care, the judge may charge the cost to the county.

It would seem, therefore, that the dispositional alternatives enumerated by G.S. § 7A-649 are to be read in tandem with this provision. If it were not for this grant of authority, it is possible that the alternatives provided to the courts would, in some instances, be empty and unworkable. However, in invoking the authority to charge the cost of care to the county, the courts must be sensitive not only to the proper placement of the child. The courts must also consider what is in the best interest of the state in the utilization of its resources and those of its inferior components.

Throughout the Juvenile Code, there is a consistent emphasis upon treating a child at the community level. We do not understand this emphasis to be taken in a literal fashion. To do so would be to foster an absurd result. It is manifest that not all areas in our state are privy to the same wealth and the resources which that wealth would make available within the confines of the geographic community. While we hasten to add that the best interests of the child will often be served by keeping the individual in his own home, subject to guidance and outpatient services of one kind or another, it need not necessarily be so.

Our decision today ought not to be taken to mean that judges may not remove a child from his neighborhood and hometown or county. That would not be a reasonable interpretation of the statute and the legislative intent. Instead, we feel that the term community ought to be interpreted in a broad manner, connoting an interrelationship among persons who live in the same general area, but who also share the same laws, rights, and interests. See Sacred Heart Academy of Galveston v. Karsch, 173 Tenn. 618, 122 S.W.2d 416 (1938). In this regard, we find Judge Bason's order to be fatally defective. By making the detailed provisions of the Juvenile Code, with their repeated emphasis upon community-level services, we find it inconceivable that the General Assembly intended to vest the court with the authority to order a child *875 committed to an out-of-state facility and charge the cost of the care so provided to the county.

We commend Judge Bason for his longstanding concern for the welfare of juveniles who come before him. The record in the present case reveals the patience that His Honor exercised in dealing with Scott over a period of many months and his tireless efforts to secure effective help for a delinquent and disturbed youth. Such patience and expenditure of effort is a salutary example to the judiciary of this state. However, we are unable to conclude that the General Assembly intended to vest him with the authority which he sought to exercise in this case. Hopefully, this case and others like it, will prompt our state to develop an effective means of dealing with children of Scott's nature and disposition.

For the reasons stated, the judgment of the District Court is

Reversed.

CARLTON, Justice, dissenting.

I respectfully dissent from the majority opinion. In interpreting the statutes enacted by our Legislature, it places form above substance, erroneously construes the dispositional provisions of our juvenile code, and produces a result which seriously curtails the ability of court officials to deal with emotionally disturbed children.

I disagree with the majority's repeated emphasis on and interpretation of the provisions of G.S. 7A-649 for two reasons.

First, it is obvious from the record that Judge Bason intended to commit the child under the authority of G.S. 7A-647(3), not G.S. 7A-649(6) as assumed by the majority. As developed more fully below, the former clearly authorizes Judge Bason's action. While the final order did recite that Scott was being sent to the Brown School pursuant to G.S. 7A-649(6), it also expressly stated that Wake County's responsibility to provide for the care was pursuant to G.S. 7A-647(3). Moreover, various findings and conclusions by the trial judge compel the conclusion that he was proceeding under the authority of G.S. 7A-647(3). For example, conclusion of law E. in the final order provided, "This court has the authority to order the treatment Scott needs and to charge that cost to Wake County pursuant to G.S. 7A-647(3) " (emphasis added). For the majority to ignore all of this and simply conclude that the judge was proceeding solely under G.S. 7A-649(6) is, in my opinion, placing form above substance.

Secondly, assuming arguendo that Judge Bason was proceeding under the authority of G.S. 7A-646(6), I strongly disagree that this statute is presently limited to programs within the State of North Carolina. The statute provides that a judge may "[o]rder the juvenile to a community-based program of academic or vocational education or to a professional residential or non-residential treatment program." G.S. 7A-649(6) (Cum. Supp.1979) (emphasis added). The "community-based" limitation is clearly intended to apply only to the academic or vocational education programs-programs normally available in many communities. The remainder of the sentence referring to professional programs is pointedly separated by the words "or to" and there is not even a hint that such programs must be located within the child's home community or the state. Indeed, such programs are available in relatively few communities in North Carolina and no community in the state has available the program prescribed for Scott. This was the finding of the trial court and is binding on this Court on appeal.

G.S. 7A-647(3), quoted in the majority opinion, clearly allows the trial judge to order psychiatric, psychological or other appropriate care for a child when he finds the child needs such care and to charge the costs to the county. This is what the statute provides, plainly and simply. There is absolutely nothing in the statute limiting the trial court to in-state placement for treatment of a disturbed child.

The majority has strained mightily to find some language in our juvenile code to *876 support its result. In my opinion, it has failed to do so. After quoting, disjointedly, various sections of the code emphasizing the laudable goal of serving troubled children in surroundings most similar to their own communities when appropriate programs are available, the majority then concludes that, "we find it inconceivable that the General Assembly intended to vest the court with the authority to order a child committed to an out-of-state facility and charge the cost ... to the county." The majority cites no authority for such a conclusion, for there is none.

I find the reasoning of the majority both strained and inconsistent. For example:

(1) It speaks of the lack of flexibility provided by the former juvenile code in dispositional alternatives and interprets the present code to provide a more "flexible manner" for courts to fashion responses to the problems of juveniles, yet it denies that very flexibility in the matter before us.

(2) It acknowledges the clear intent of the code that juveniles be committed to training school only when no other "reasonable alternative" is available, yet it denies Scott Brownlee the only "reasonable alternative" the trial court could find for him after weeks of pleading with local and state agencies for help they were unable to provide.

(3) In holding that one of the clear purposes of the juvenile justice system is to serve the child's best interests, the majority holds that a dispositional "determination cannot be made in a vacuum." The majority states, "a court exercising its juvenile jurisdiction must also weigh the best interests of the state," yet the majority fails to point to any step in these proceedings at which the trial court was acting in a "vacuum" or at which the judge failed to consider the "best interests of the state." Indeed, the majority could make such statements only in the abstract because the record before us discloses that the trial court gave Wake County every conceivable opportunity to present an alternative solution and invited the county to fully participate in the proceedings. The assistant county attorney, at one stage of the proceedings, walked out of the courtroom. If any "vacuum" resulted, it was the fault of Wake County, not that of the trial court or of the child.

(4) The majority states that "[i]t is conceivable that an appropriate disposition ... would require that resources other than those provided by governmental units be employed by the court. No doubt exists in our minds that the General Assembly envisioned such a situation emerging." The majority here denies such a resource to Scott Brownlee.

(5) The majority holds that G.S. 7A-649 must be read "in tandem" with G.S. 7A-647, yet it fails to apply the clear language of G.S. 7A-647(3) to the matter before us.

(6) The majority holds that when a juvenile judge invokes the authority to charge the cost of care to a county, the judge must be sensitive both to the proper placement for the child and consider the best interests of the state "in the utilization of its resources and those of its inferior components," yet it fails to note any failure of the trial court to consider the utilization of Wake County's resources. If the implication is that the approximate annual cost in excess of $40,000 for treatment at the Brown School is excessive, how does the majority rationalize such a conclusion with the finding quoted in the opinion that the average annual cost of treatment for an adolescent at Dorothea Dix Hospital in Raleigh is $65,000?

(7) The majority states that, "Our decision today ought not to be taken to mean that judges may not remove a child from his neighborhood and hometown or county. That would not be a reasonable interpretation of the statute and the legislative intent," yet it denies such removal of this child. Its only explanation for such a result is that the majority finds "inconceivable" a legislative intent to vest the trial court with authority for out-of-state placement at county expense.

*877 The majority, in effect, has held that the juvenile code permits treatment of a child only in "community-based" facilities and that "community" is intended by the Legislature to encompass the entire state. That this could not have been the legislative intent is clear from the code itself. Throughout the code are references to treatment of the child within his own community, and full utilization of "community-level resources" is required before a juvenile can be committed to a state training school. Additionally, a "community-based program" is defined as "[a] program providing nonresidential or residential treatment to a juvenile in the community where his family lives." G.S. § 7A-517(8) (Cum.Supp.1979) (emphasis added). "Community" was obviously intended by our Legislature to mean a much smaller geographic area than the entire state. And it is also obvious that the Legislature, although it intended that resources within the child's community be utilized first, did not intend district court judges to be limited to resources available within the child's community when fashioning the appropriate disposition for each child. Likewise, there is nowhere manifested in the juvenile code an intent that the available dispositional alternatives be limited to facilities within the state.

This Court announces today that juvenile judges must exercise "sound discretion" in determining appropriate dispositions for juvenile delinquents, yet it cites no instance in which Judge Bason abused his discretion. Is it because the costs of this program are too excessive or the distance to Texas too far? Is it because the majority feels the program of treatment inappropriate for this child? Trial courts are given no guidelines for exercising their discretion. One can only conclude from the opinion that the majority feels that Judge Bason abused his discretion by placing Scott in a program beyond the borders of North Carolina. However, would the majority result have been any different had the same program at the same cost been available within our state but several hundred miles from Scott's home county? I realize, of course, that an appellate court cannot always answer questions which are not asked and must deal with the record before it. However, I fear that the majority opinion today will be confusing to our trial judges as they attempt to decide whether their dispositions for juveniles are based on "sound discretion."

I wish to make it clear that I do not advocate that juvenile judges be given the authority to send children all over the country for treatment wherever and whenever they wish. Obviously, there is a limit to the amount of public funds which can be expended for such purposes. Equally obvious, as the majority acknowledges, is that North Carolina must develop effective programs for such children. The Legislature must address this serious problem. In the meantime, however, Scott Brownlee should not be denied a program which is in his best interests and which the present juvenile code plainly allows, G.S. § 7A-647(3) (Cum. Supp.1979). I do not think this Court should engage in judicial legislating.

The result of the decision of this Court today is to take Scott Brownlee from a program found to be in his best interest and to bring him back to Wake County to face an uncertain future. Perhaps that will not matter. Like the majority, I have no idea whether Scott has made any progress whatsoever. It may be that this young man's mind is so disturbed that no program anywhere in the world could prevent his graduation from juvenile delinquent to hardened criminal. It seems to me, however, that we ought not to give up on him in the middle of treatment and return him to a situation which offers little hope. The odds that he will soon be an adult criminal will surely be greater if he is returned. Such a result, I might add, will be far more expensive to the public than the costs of his present program. With so much at stake, I simply cannot understand why a majority of this Court chooses to read words into our juvenile code which are not there.

*878 During oral argument, one member of this Court stated that he could not conceive that our Legislature intended to give juvenile judges the authority to send children, at county expense, to such far away places as Texas, Hawaii or England. I agree that not even the first member of our Legislature consciously considered that our emotionally disturbed children would be sent so far away. Such a conclusion on our part, however, should not result in the decision reached by the majority today. Rigid adherence to such a view has led a majority of this Court to usurp the legislative process. Moreover, our juvenile judges will find it far more difficult in the future to utilize novel and innovative programs for delinquent children.

Assuming the Legislature never contemplated the situation presented by the record before us, what should this Court do about it? The answer is, of course, that we should construe the statute according to its plain meaning and not attempt to divine what the Legislature would have intended had it considered this situation. We should affirm the action of the trial court because it was proper under the present code. The Legislature convenes in this city in less than three weeks and can, if it wishes, amend the statutes to more clearly reflect the legislative intent, whatever that may be. The public money spent during the interim would surely not be an unwise investment when compared to the harm this decision may cause to Scott Brownlee and to thousands of other young people in the future.

I vote to affirm.

EXUM, J., joins in this dissent.