An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accorda nce with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA 13

- 828 NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014

IN THE MATTER OF:
M.C. Vance County No. 08 J 95

Appeal by Juvenile from order s entered 11 January 2013 and 16 January 2013 by Judge J. Henry Banks in District Court, Vance County. Heard in the Court of Appeals 21 January 2014
.
Attorney General Roy Cooper, by Assistant Attorney General Daphne D. Edwards, for the State. Appellate Defender Staples Hug hes, by Assistant Appellate Defender Hannah Hall, for Juvenile

- Appellant
.

McGEE , Judge.

Juvenile admitted to felonious breaking and entering on 7 September 2012. Judge J. Henry Banks adjudicated J uvenile delinquent on 21 September 2012. He ordered a Level 2 disposition , directing that Juvenile be placed on probation under the supervi sion of a court counselor for twelve months , under certain conditions. Judge Banks also ordered that- 2

-

Juvenile could be confined on an intermittent basis for up to
fourtee n 24

- hour periods, “specifically for obtaining new charges, violating curfew, and/or testing positive to marijuana.”

T he court counselor alleged in a document titled “Motion
for Review on Probation Violation” filed on 9 November 2012 that
Juvenile violated several conditions of his probation. Judge
Banks held a hearing on 30 November 2012 , found Juvenile had “violated the court’s previous order” and continued the matter
to 7 December 2012. Judge S. Quon Bridges presided over Juvenile’s pro bation
violation hearing on 7 December 2 012 and entered a written
order , finding that Juvenile had violated the conditions of his probation , continu ing Juvenile on probation , and order ing Juvenile “be placed in secure custody for 6 (six) 24 hour periods of confinement.”

A hearing was held on 14 December 2012 before Judge Bridges. H owever, Juvenile’s attorney was “no t available for

court [ , ] ” and Judge Bridges continued the matter to 11 January
2013. He further provided the following conditions : (1) “that the juvenile shall follow the rules and regulations of his- 3

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father’s home;” and (2) “that the juvenile shall remain at his father’s residence at all times except to attend school.”

A nother hearing was held before Judge Banks on 11 January
2013. H e entered a Level 3 disposition and commitment order on 11 January 2013 and an amended Level 3 disposition and
commitment order on 16 January 2013. Juvenile appeals from the
orders enter ed 11 January 2013 and 16 January 2013
. J uvenile first argues Judge Banks erred by enterin g a Level 3 disposition and commitment order because , following Judge Bridges’ 7 December 2012 order , t here was no motion for review
filed , citing N.C. Gen. Stat. § 7B

- 2600 (2013). That statute
reads as follows:

Upon motion in the cause o r petition , and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the juvenile, and the court may modify or vacate the order in light of changes in circumstances or the needs of the juvenile.
N.C.G.S. § 7B

- 2600(a) (emphasis added)

. Following Juvenile’s probation violation hearing on 7

De cember 2012, Judge Bridges f ound that Juvenile violated
several conditions of his p robatio n and entered the following
order: 1. He missed 46 days from school.- 4

- 2. He missed a meeting with the child and family team at school. 3. He violated his curfew by coming home after 5:00 pm on several occasions. 4. He missed a meeting with Triumph and only attended 3 meeting[s] per week instead of 4 on occasion. 5. He tested positive for marijuana the first week of his probation on one occasion. However, the Court finds that he should be continued on probation and given an opportunity to comply with the terms and conditions . He be placed in secure cust ody for 6 (six) 24 hour periods of confinement.
N.C. Gen. Stat. § 7B

- 2510 (e) (2013) permits the trial

court , upon finding that a juvenile violated conditions of probation, to enter one of several dispositions, as set forth
below: If the court, af ter notice and a hearing,

finds

. . . that the juvenile has violated the conditions of probation set by the court, the court may continue the original conditions of probation, modify the conditions of probation, or, except as provided in subsection (f) of this section, order a new disposition at the next higher level [.]
N.C.G.S. § 7B

- 2510 (e)
. The written order that Judge Bridges
entered on 7 December 2012 finds Juvenile violated conditions of probation , and Judge Bridges ordered a continuation of the- 5

-

o riginal conditions of probation, one of the disposition s permitted by N.C.G.S. § 7B

- 2510 , supra . 1
N.C.G.S. § 7B

- 2600 (a) requires that a motion in the cause or a petition be filed in order for a review hearing to be
conducted and a determination to be made as to whether to modify

or vacate a prior disposition al order. No motion in the cause or petition was filed, as required, that would permit Judge Banks to enter the 11 January 2013 order or the 16 January 2013
order , both of which modified the 7 Decem ber 2012 o rder of Judge Bridges . Juvenile has demonstrated that Judge Banks erred in entering an order on Juvenile’s disposition in the absence of a
motion in the cause or a petition, pursuant to N.C.G.S. § 7B

2600(a). The 11 January 2013 and 16 January 2013 order s of Judge Banks must be vacated. In light of our holding on this issue, we need not reach Juvenile’s remaining arguments.
Vacated
. Judges HUNTER, Robert C. and ELMORE concur . Report per Rule 30(e).

1 T he court reporter indicated in the transcript that there were substantial problems with a microphone on both 7 December 2012 and 11 January 2013. However, neither Juvenile nor the State argues that any statements relevant to this issue were omitted, and w e are limited in our review to the record before us. See N.C.R. App. P. 9(a)(1)(e)
.