                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA18-685

                                     Filed: 15 January 2019

Mecklenburg County, No. 17 JB 396

IN THE MATTER OF: E.M.

      Appeal by juvenile from order entered 30 January 2018 by Judge Louis A.

Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 13

November 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Marie H.
      Evitt, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H.
      Love, for juvenile.


      ZACHARY, Judge.


      Evan Miller1 appeals from an order committing him to placement in a youth

development center and transferring his legal custody to the Mecklenburg County

Department of Social Services, Youth and Family Services Division. The trial court

was presented with evidence that Evan was mentally ill and failed to refer him to the

area mental health services director for appropriate action as prescribed by statute.

As a result, we vacate the trial court’s order and remand for further action.

                                           Background




      1   We use a pseudonym to protect the identity of the minor involved in this case.
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                                  Opinion of the Court



      On 20 July 2017, the State filed petitions against Evan Miller for common-law

robbery and being an undisciplined juvenile. The State filed two more petitions

against Evan on 6 September 2017 alleging common-law robbery and conspiracy to

commit common-law robbery. Evan admitted to the offense of conspiracy to commit

common-law robbery in exchange for dismissal of all other charges at a delinquency

hearing on 23 October 2017 in Mecklenburg County District Court before the

Honorable David H. Strickland. Judge Strickland entered a Level 2 disposition and

placed Evan on probation for 12 months. The conditions of Evan’s probation were to:

(1) “Remain on good behavior and not violate any . . . law”; (2) “Not violate any

reasonable and lawful rules of the juvenile’s parent, guardian, or custodian”; and (3)

“Attend school each and every day, all classes, not have any unexcused tardies, and

not be suspended or excluded from school.”

      A motion for hearing was filed on 14 November 2017 alleging that Evan

violated his probation by being suspended from school, together with leaving his

home without permission and being away for up to three days. The motion for review

was continued until January 2018. The Honorable Louis A. Trosch heard the motion

for review on 26 January 2018.       At the hearing, Evan admitted the probation

violations. That same day, Judge Trosch entered a Level 3 disposition and committed

Evan to a Youth Development Center for a minimum period of six months, and

continuing until his eighteenth birthday at the maximum. Judge Trosch also ordered



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that the Mecklenburg County Department of Social Services, Youth and Family

Services Division assume custody of Evan. Evan filed timely notice of appeal on 2

February 2018.

                                      Discussion

       Evan argues on appeal that the trial court erred by: (1) entering a disposition

against Evan without referring him to the area mental health services director for

appropriate action after being presented with evidence that Evan was mentally ill;

(2) making a finding that Evan had been involved in criminal activity while on

probation when no competent evidence supported that finding; and (3) transferring

Evan’s legal custody to the Department of Social Services. After review, we conclude

that the trial court failed to refer Evan to the area mental health services director, as

prescribed by statute, after being presented with evidence that Evan was mentally

ill.

       The Juvenile Code governs management of cases involving undisciplined and

delinquent juveniles. See N.C. Gen. Stat. §§ 7B-1500 to 7B-2706 (2017). The purpose

of these procedures is to, inter alia, “deter delinquency and crime, including patterns

of repeat offending . . . [b]y providing appropriate rehabilitative services to juveniles.”

Id. § 7B-1500(2)(b). 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



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community.” Id. § 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.” Id. § 7B-2502(a) (emphasis added). However, when evidence of mental

health issues arise, 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.

Id. § 7B-2502(c) (emphasis added).

      The use of the word “shall” indicates a statutory mandate that the trial court

refer the juvenile to the area mental health services director for appropriate action,

and failure to do so is error. See In re J.R.V., 212 N.C. App. 205, 208, 710 S.E.2d 411,

413 (2011) (“The use of the word ‘shall’ by our Legislature [is] . . . a mandate, and

failure to comply with this mandate constitutes reversible error.”), disc. review

improvidently allowed, 365 N.C. 416, 720 S.E.2d 387 (2012). 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. In re G.C., 230 N.C. App. 511,



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                                   Opinion of the Court



515-16, 750 S.E.2d 548, 551 (2013). “Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of the lower tribunal.”

Id. at 516, 750 S.E.2d at 551.

      In In re Mosser, 99 N.C. App. 523, 393 S.E.2d 308 (1990), a juvenile was

committed to confinement despite evidence presented to the trial court that he was

mentally ill. At the juvenile’s dispositional hearing, the trial court heard evidence

that “the juvenile had been diagnosed as manic-depressive and was being treated

with the drug lithium,” id. at 524, 393 S.E.2d at 309, and the trial court included that

evidence in its findings of fact. Id. at 525, 393 S.E.2d at 310. The only basis for this

evidence was “a statement made to the trial court by the mother of the juvenile.” Id.

at 528, 393 S.E.2d at 311. While this Court in Mosser was applying the former

juvenile code, the statute in that case and the one in this case are substantially

similar. Compare N.C. Gen. Stat. § 7A-647(3) (1989) (“If the judge believes, or if there

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

retarded the judge shall refer him to the area mental health, mental retardation, and

substance abuse director for appropriate action.”) with N.C. Gen. Stat. § 7B-2502(c)

(2017) (“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 only difference between the two



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statutes is the elimination of the gender-specific term “him” and more appropriate

language referring to those with mental disabilities. Thus, Mosser’s analysis and

reasoning are applicable to this case. This Court held that “the record does not reflect

a genuine inquiry into the nature of the needs of the juvenile,” Mosser, 99 N.C. App.

at 528, 393 S.E.2d at 311, and that the “evidence of mental illness compels further

inquiry by the trial court prior to entry of any final disposition.” Id. (emphasis added).

The trial court’s failure to “gain the advice of a medical specialist . . . precludes

commitment to the Division of Youth Services.” Id. at 528, 393 S.E.2d at 311-12. As

a result, this Court vacated the juvenile’s commitment and remanded for another

dispositional order. Id. at 529, 393 S.E.2d at 312.

      Here, the record before the trial court revealed the following mental health

issues with regard to Evan: 1) a Risk and Needs Assessment filed 19 October 2017

indicated that a facility holding Evan entertained the idea of having him

involuntarily committed but decided against it and that Evan had received “a

plethora of treatment services”; 2) a Risk and Needs Assessment filed 5 December

2017 stated that “[Evan] has been exposed to a number of services to address his

mental health needs, development of appropriate social skills, [and] pro-social

activities”; 3) a Risk and Needs Assessment filed 25 January 2018 advised that Evan’s

behavior indicated “a need for additional mental health . . . treatment”; and 4) a

Clinical Disposition Report prepared by a specialist hired by Evan’s counsel asserted



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that Evan was “having major behavioral issues” and had been diagnosed with

Conduct Disorder, Attention Deficit Disorder, Unspecified Depressive Disorder, and

Cannabis Use Disorder.

      At the hearing on the motion for review, substantial evidence was presented to

the trial court establishing Evan’s mental health issues. Evan’s adoptive father

testified that Evan had been “discharged from intensive therapy,” and has “been in

five different clinical homes.    He’s had therapists, outpatient, inpatient, [and]

intensive in-home” services.     Evan’s attorney noted that “behavioral health and

mental health services” were offered to Evan and that “his trauma [had] not [been]

adequately treated.” Evan’s counsel also stated, “he has had a lot of treatment

options at this point, but they just haven’t worked.”          Even the trial court

acknowledged that Evan had been to “twelve different mental facilities,” and

contemplated ordering the Youth Development Center to provide mental health

services to Evan.

      The trial court was presented with a plethora of evidence demonstrating that

Evan was mentally ill—much more evidence than was presented in Mosser. Faced

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

statutory duty to “refer the juvenile to the area mental health . . . services director

for appropriate action.” N.C. Gen. Stat. § 7B-2502(c). It is possible that the trial

court was under the misapprehension that such a referral was unnecessary, because



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                                  Opinion of the Court



Evan had already received significant mental health services prior to this disposition

and because the trial court recognized that it could order mental health services for

Evan during his commitment. However, the statute envisions the area mental health

services director’s involvement in the juvenile’s disposition and “responsib[ility] for

arranging an interdisciplinary evaluation of the juvenile and mobilizing resources to

meet the juvenile’s needs.” Id. That did not happen in this case, and the area director

was unable to participate in crafting an appropriate disposition for Evan. Therefore,

we vacate Evan’s disposition and remand for a new dispositional hearing, and do not

address his second and third assignments of error.

                                    Conclusion

      The trial court failed to refer Evan to the area mental health services director

after being presented with evidence that Evan was mentally ill, as required by

statute. Accordingly, we vacate Evan’s disposition and remand for a new hearing

that includes a referral to the area mental health services director. Evan’s custody

shall remain with the Department of Social Services.

      VACATED AND REMANDED.

      Judges BRYANT and DILLON concur.




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