In re: K.M.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-3

No. COA20-482

Filed: 2 February 2021

Cumberland County, No. 18 JB 141

IN THE MATTER OF: K.M.

Appeal by juvenile from order entered 19 February 2020 by Judge Cheri Siler-

Mack in Cumberland County District Court. Heard in the Court of Appeals

12 January 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Melissa K.

Walker, for the State.

Appellate Defendant Glenn Gerding, by Assistant Appellate Defender Amanda

S. Hitchcock, for juvenile-appellant.

ARROWOOD, Judge.

¶1 K.M. appeals from a dispositional order entered committing him to a youth

development center (“YDC”). K.M. contends that the trial court erred by entering a

new dispositional order without first referring him to the area mental health services

director pursuant to N.C. Gen. Stat. § 7B-2502(c). K.M. further argues that the trial

court violated his due process rights by recommitting him to YDC without proper

notice, and that K.M. received ineffective assistance of counsel due to the alleged lack

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of notice. We hold that the trial court erred in failing to refer K.M. to the area mental

health services director, vacate the dispositional order, and remand for a new hearing

and referral to the mental health services director.

I. Background

¶2 On 16 April 2018, a Cumberland County juvenile court counselor approved the

filing of petitions against K.M. alleging that he committed two counts of first-degree

statutory sex offense and two counts of second-degree forcible sex offense. The trial

court adjudicated K.M. delinquent of all four offenses on 17 October 2018. On

3 December 2018, the trial court entered a “Juvenile Order for Mental Health

Services,” which included a finding of fact stating “[t]his case involves mental health

issues and/or the need for mental health services,” and ordered a “Sexual Offender

Specific Evaluation” with a report to be provided to the court. On 28 March 2019, the

trial court entered a Level III disposition and committed K.M. to a YDC and further

ordered that if a Level III group home could be identified for K.M., he was to be

brought back before the court for a hearing to consider adjusting his placement. A

Cumberland County juvenile court counselor filed a motion for review on

29 April 2019 indicating a Level III placement had been identified for K.M. On

30 May 2019, the trial court approved a community commitment for K.M. at Level III

group home Falcon Crest Residential Group Home (“Falcon Crest”).

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¶3 On 20 December 2019, a Cumberland County juvenile court counselor filed

another motion for review “to review community commitment status.” At a hearing

on 27 January 2020, a representative from the Department of Juvenile Justice

(“DJJ”) testified that K.M. “started to have some issues” in early December 2019.

These issues included an in school suspension “for being disrespectful, getting out of

the classroom and walking out, because he didn’t like something the teacher said[,]”

and for being caught with an MP3 player on which K.M. had downloaded

inappropriate sexual content; the DJJ representative expressed concern that K.M.

had asked the group home manager “not to tell anyone” about the incident with the

MP3 player. Additionally, staff members at the group home found a “vape” and

“vaping liquid” in K.M.’s possession, and noted that K.M. was not present at a

specified meeting spot after school on at least two occasions. Based on these

incidents, the DJJ report recommended that K.M. be removed from his community

commitment placement and returned to the YDC.

¶4 The trial court reviewed a Risk and Needs Assessment (“Assessment”)

completed by the court counselor on 5 December 2019. The Assessment noted that

K.M. was rejected by pro-social peers, had received one short-term suspension from

school, “[m]ay use sexual expression/behavior to attain power and control over

others,” had mental health needs that were being addressed, and experienced

domestic discord resulting in emotional or physical conflict. The Assessment

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assigned K.M. with a Risk Score of 12, which placed K.M. in the upper range of Risk

Level 4 (out of five possible risk levels), and a Needs Score of 17, placing K.M. in the

“Medium Needs” level.

¶5 The trial court also reviewed a report from Falcon Crest performed on

22 January 2020. The Falcon Crest report noted that K.M. had been participating in

group therapy and weekly outpatient therapy for the purpose of assisting K.M. “with

adjustment to daily routine and scheduled to decrease stress, anger, and promote

independence, competence, and security.” While the report described K.M. as

showing “some progress with his impulsive behavior,” K.M. “puts himself and others

at risk by making poor choices.” The report described K.M. as “quick to blame others

or make excuses[,]” and as continuing to “be impulsive and does not think before

acting.” With regards to the long term goals for K.M.’s therapy, the report noted that

K.M. “is still attempting to understand the relationship between positive behaviors,

getting along with his peers, following staff/school official directives, [and] respecting

authority figures,” and occasionally “struggles with . . . processing that his past

behaviors, manipulating, and compl[ying] with probation is still [a] very important

part of his current situation.” A therapist’s addendum to the report stated that K.M.

“continues to need supervision, structure, education, and role modeling to assist him

with managing negative impulses and behaviors.”

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¶6 The trial court then reviewed a Rehabilitated Support Services report from an

assessment performed on 21 January 2020. Falcon Crest had requested that

Rehabilitative Support Services conduct the assessment shortly after the Motion for

Review was filed. The report, which referred to K.M. by an incorrect first name,

stated that K.M. was at very low risk for re-offending and still required intensive

treatment individualized to address his specialized needs, and recommended that

K.M. remain in the Level III group home. The trial court disregarded the report due

to the incorrect name.

¶7 K.M.’s trial counsel argued that K.M. had not received adequate notice because

the motion simply directed the trial court “to review Community Commitment

status[,]” and because there was no violation report filed. The State’s trial counsel

asked that “whatever the Court’s decision . . . [K.M.]’s current acts clearly show

that . . . he can benefit there with further treatment whether that’s back in YDC, if

he’s going to get that, or another program. But . . . really that he gets the best

treatment to take care of these situations[.]”

¶8 The trial court heard additional testimony from Lakkiyah Sellers (“Ms.

Sellers”), K.M.’s social worker, George Adam (“Mr. Adams”), a Falcon Crest staff

member, and K.M.’s mother. Ms. Sellers expressed concern that K.M. was not

adequately engaging in his monthly treatment team meetings, and that “he’s always

reporting that everything is going well, when it is not.” Mr. Adam testified that K.M.

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was “a likeable young man[,]” but that at times “his maturity level is not

understanding how the severity of what his charges are[,] [a]nd the decisions that he

makes is not, you know, reality based, because . . . his mind is not set to understand

it, these serious charges.” K.M.’s mother testified that K.M. did not have many

incidents before December 2019, and that “the things that are being said in the

courtroom, are not being said in the meetings. And they’re not addressing [K.M.]

about any of that. This is the first that I’ve [heard] something, and we go to every

meeting.”

¶9 At the close of testimony and argument, the trial court revoked K.M.’s

community commitment and ordered him to return to YDC over the objection of

K.M.’s trial counsel. The trial court noted that “initially there was [a] smooth

transition with [K.M.’s] placement” at Falcon Crest, but that in the past month K.M.

had “spiral[ed]” out. The trial court also expressed concern with K.M.’s “increase of

impulsivity[,]” and that K.M. was “not engaging seriously in his treatment.” The trial

court noted K.M.’s trial counsel’s objection and K.M. orally appealed.

II. Analysis

¶ 10 K.M. contends that the trial court erred by entering a new dispositional order

without first referring K.M. to the area mental health services director. We agree.

¶ 11 When a juvenile argues to this Court that the trial court failed to follow a

statutory mandate, the error is preserved and is a question of law reviewed de novo.

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In re G.C., 230 N.C. App. 511, 515-16, 750 S.E.2d 548, 551 (2013). Under the de novo

standard, the Court considers the matter anew and freely substitutes its own

judgment for that of the lower court. In re A.M., 220 N.C. App. 136, 137, 724 S.E.2d

651, 653 (2012).

¶ 12 “Disposition of cases involving juveniles should ‘[p]rovide the appropriate

consequences, treatment, training, and rehabilitation to assist the juvenile toward

becoming a nonoffending, responsible, and productive member of the community.’ ”

In re E.M., 263 N.C. App. 476, 478, 823 S.E.2d 674, 676 (2019) (quoting N.C. Gen.

Stat. § 7B-2500(3)). When a juvenile comes before a trial court, “the court may order

that the juvenile be examined by a physician, psychiatrist, psychologist, or other

qualified expert as may be needed for the court to determine the needs of the juvenile.”

N.C. Gen. Stat. § 7B-2502(a) (2019) (emphasis added). When evidence of mental

health issues is presented to the trial court, the authority to order the evaluation of

a juvenile by certain medical professionals is no longer discretionary, but is required:

If the court believes, or if there is evidence presented to the

effect that the juvenile is mentally ill or is developmentally

disabled, the court shall refer the juvenile to the area

mental health, developmental disabilities, and substance

abuse services director for appropriate action. . . . The area

mental health, developmental disabilities, and substance

abuse director shall be responsible for arranging an

interdisciplinary evaluation of the juvenile and mobilizing

resources to meet the juvenile’s needs.

N.C. Gen. Stat. § 7B-2502(c) (emphasis added).

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¶ 13 The use of the word “shall” indicates a statutory mandate that when the trial

court is faced with any amount of evidence that a juvenile is mentally ill, the trial

court must refer the juvenile to the area mental health services director for

appropriate action, and failure to do so is error. In re E.M., 263 N.C. App. at 478, 823

S.E.2d at 676 (citation omitted). This mandate requires the trial court to refer the

juvenile to the area mental health services director regardless of whether the juvenile

has already received mental health services prior to the disposition. Id. at 480, 823

S.E.2d at 677. This Court recently noted that the position of “area mental health

services director” no longer exists as referenced in N.C. Gen. Stat. § 7B-2502(c) and

is now identified as the “local management entity/managed care organization” found

in N.C. Gen. Stat. § 122C-3(20b). In re E.A., 267 N.C. App. 396, 400, n.3, 833 S.E.2d

630, 633, n.3 (2019). Because the General Assembly has not yet updated the language

of N.C. Gen. Stat. § 7B-2502(c) to reflect this change, we will continue to refer to the

position as the area mental health services director.

¶ 14 In this case, evidence was presented to the trial court establishing K.M.’s

mental health issues. The trial court reviewed multiple reports that described K.M.’s

continued need for mental health treatment, including the Risk and Needs

Assessment that placed K.M. at Risk Level 4 and the “Medium Needs” level. The DJJ

representative testified that K.M. had exhibited increasingly significant issues with

impulse control and truthfulness in the months preceding the hearing, in addition to

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K.M.’s social worker expressing concern that K.M. was not seriously engaging in his

mental health treatment. This evidence required the trial court to refer K.M. to the

area mental health services director, rather than revoke K.M.’s community status

and order his return to YDC.

¶ 15 The State contends that this case is distinguishable from In re E.M. because

prior to the hearing on the Motion for Review, K.M. was referred by Falcon Crest to

Rehabilitated Support Services for evaluation. Rehabilitated Support Services is a

provider for Alliance Health, the local management entity/managed care organization

contemplated by the statute. The State argues that because the trial court considered

the evaluation during the hearing, it was not required to refer K.M. to the area mental

health services director. Additionally, the State argues that “[w]hile the statute

envisions the area mental health services director’s involvement in assisting the court

with crafting a disposition . . ., nothing in [N.C. Gen. Stat. §] 7B-2502(c) allows the

agency to usurp the court’s discretionary authority in ultimately determining the

appropriate disposition alternatives.”

¶ 16 The State’s argument incorrectly describes the trial court’s statutory duty in

this case. The text of N.C. Gen. Stat. § 7B-2502(c) plainly states that when there is

evidence presented to the effect that the juvenile is mentally ill or is developmentally

disabled, the trial court “shall” refer the juvenile to the area mental health services

director for appropriate action. The trial court does not have the discretionary

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authority to disregard this statute in favor of “appropriate disposition alternatives.”

The trial court’s failure to make the statutorily mandated referral was error, and

accordingly the trial court’s order must be vacated.

¶ 17 Because we vacate the trial court’s order for statutory error, we do not reach

K.M.’s arguments regarding notice and due process.

III. Conclusion

¶ 18 For the foregoing reasons, we hold that the trial court erred in failing to refer

K.M. to the area mental health services director, vacate the dispositional order, and

remand for a new hearing and referral to the area mental health services director.

VACATED AND REMANDED.

Judges DILLON and INMAN concur.