In re Autry

JOHNSON, Judge. Dylan Autry, bom 25 September 1977, was adjudicated a dependent juvenile by the New Hanover District Court and legal custody of Dylan was granted to the New Hanover County Department of Social Services on 5 August 1986. Dylan suffers from serious behavioral and emotional problems and from developmental disabilities. Because of these problems, Dylan requires specialized services; Dylan was certified a Willie M. class member on or about 4 March 1987. The Willie M. Services Section of the Division of Mental Health, Developmental Disabilities and Substance Abuse Services is within' the North Carolina Department of Human Resources. The Division is responsible for creating, overseeing and funding all services for Willie M. class members, except educational services provided through the North Carolina Department of Public Instruction. Judge Napoleon B. Barefoot, Jr. reviewed Dylan Autry’s case during the 18 February 1993 session of New Hanover County District Court upon the motion of the guardian ad litem. The guardian ad litem was seeking an order from the court directing the North Carolina Department of Human Resources, through the Division, to develop a treatment/placement plan for Dylan and a specific time frame for implementing the plan. Those present at the hearing included Dylan’s social worker, counsel for the New Hanover County Department of Social Services, the guardian ad litem represented by counsel, and Dylan’s Willie M. case manager, Tommy Puckett. (Mr. Puckett is not an employee of the Division; he is employed by Southeastern Mental Health Center. The Center is operated by the Southeastern Area Mental Health, Developmental Disabilities and Substance Abuse Services Area Program. This Program is responsible for providing for the mental health, developmental disabilities [265] and substance abuse services needs of clients in its area. Dylan is one of its clients.) The evidence at the hearing revealed that Dylan was a patient at the Children’s Unit of Cherry Hospital in Goldsboro, North Carolina, and had been a patient there since January 1992. Cherry Hospital is a psychiatric facility operated by the North Carolina Department of Human Resources. Dylan was admitted to the hospital for assessment of his need for medication to address his behavioral problems. During his stay at Cherry Hospital, Dylan was provided treatment for behavioral problems caused by his developmental and emotional deficits. At the time of the hearing, Dylan was no longer in need of acute care and was ready for discharge to an appropriate long-term placement. The social worker for the Cherry Hospital Children’s Unit testified that she had been working closely with Mr. Puckett, who was trying to find an appropriate placement for Dylan so that he could be discharged from the hospital. Mr. Puckett testified that he was working with all of the agencies involved in Dylan’s case to create a plan and submit it to the Division for consideration by the Division’s Willie M. Services Section from whom the funding for the plan was being sought. However, because of Dylan’s special needs, the plans he had submitted had riot been accepted by the Division. One reason for the rejections was that the type of services proposed in the plans did not exist and would have to be developed. Mr. Puckett testified that two other plans that would have suited Dylan’s needs called for individual residential treatment. These involved providing Dylan with a small house or an apartment with a 24-hour staff to supervise him. The cost associated with each of these plans was about $140,000 per year. Those plans were rejected by the Division but Mr. Puckett did not testify as to the reason for the rejection. Because the Division wanted to ensure that Dylan did not continue to languish in the hospital, Mr. Puckett was instructed to develop a plan and coordinate the activities necessary to place Dylan in a “professional parenting home” as an interim placement. This would involve locating and training a couple with whom Dylan would live. The couple would be provided certain supports to ensure that Dylan’s needs were met. At the conclusion of the evidence, the trial court found that officials recommended that a plan be established for Dylan including the following criteria: [266] (1) That he be placed in an individual therapeutic residential center outside Cherry Hospital. (2) That he needs to be taught in this facility life skills. (3) That he needs an individualized education plan. (4) That he needs speech therapy for his speech impediment which is stuttering when he is under stress. (5) That he needs continued monitoring of the drugs he is being administered for his behavior. Judge Barefoot then ordered the Willie M. program to provide to the court within thirty days a plan for placement that would meet Dylan’s needs and ordered that an appropriate placement be implemented within sixty days. The matter was to come before the court for review within thirty days. Subsequently, on 5 March 1993, a written order was entered nunc pro tunc for 18 February 1993. On 18 March 1993, Judge Elton G. Tucker presided over the review, finding “[t]hat Tommy Puckett, Willie M case manager, testified before this Court that there are plans for placement as ordered but that no firm plan or date for implementation of a plan can be given, although it is hoped that the plan will be implemented within the next several weeks.” Judge Tucker concluded “[t]hat no firm plan has been presented to the Court with an implementation date as previously ordered” and “[t]hat it is in the present best interest of the juvenile that his legal and physical custody be granted to the Willie M. Program, a Division of the North Carolina Department of Human Resources.” The order required two employees of the Division, Marci White, Director of the Section, and Pat Ray, Regional Service Manager, to appear before the court on 22 April 1993, and to show the court that Dylan had been placed in accordance with Judge Barefoot’s findings of fact regarding Dylan’s needs, or to show cause why they should not be held in contempt for failure to abide by the court’s order. On 31 March 1993, the Division asked that Judge Tucker modify or vacate his order or, in the alternative, stay his order pending appeal. Judge Tucker denied these requests. On 13 April 1993, the Division petitioned our Court to issue writs of prohibition and super-sedeas and moved for a temporary stay of the order. These writs (the petition for a writ of prohibition was treated as a petition for writ of [267] certiorari) were granted by our Court on 4 May 1993. We turn now to the merits of this appeal. The State first argues the district court lacked jurisdiction to order the Division to implement a specific treatment program for Dylan Autry. Specifically, the State argues that because the Division was not a party to this juvenile proceeding, the district court was without authority to direct the Division to take any particular action with respect to the juvenile. The State cites In the Matter of Baxley, 74 N.C. App. 527, 328 S.E.2d 831, disc. review denied, 314 N.C. 330, 333 S.E.2d 483 (1985), where our Court stated: We agree that, as a certified Willie M. child, respondent has certain special constitutional rights to appropriate treatment by the State of North Carolina. These were established in the consent order in Willie M. v. James B. Hunt, No. CC79-0294 slip op. (W.D.N.C. 20 February 1981). Yet, the stipulations by the parties in that case, as adopted by the federal district court in its order, indicate that a Review Panel was established by the court and “shall be responsible to the Court and is created for the purpose of reviewing defendants’ compliance with the decree entered in this action.” This Review Panel has the duty of reviewing the services actually being provided for each Willie M. child and of determining whether they assure the child the rights he is accorded under the court’s decree. Given the federal district court’s continuing jurisdiction over the question of appropriate treatment of Willie M. children, and the role of the Review Panel in evaluating the compliance of the State of North Carolina with the consent order, which was agreed to by the parties, we believe it would be inappropriate for this tribunal to inquire into whether the respondent in the present case was denied his Willie M. rights when the juvenile judge revoked his conditional release. In the Matter of Baxley, 74 N.C. App. at 531, 328 S.E.2d at 833. Further, the State cites In re Swindell, 326 N.C. 473, 390 S.E.2d 134 (1990), where our Supreme Court held that the trial court “exceeded the scope of its authority in ordering the State of North Carolina to develop and implement a specified adolescent sex offender treatment program.” The Court stated that “[t]he North Carolina Juvenile Code, N.C.G.S. § 7A-516 to § 7A-744, does not grant the [268] district courts the authority to order the state, through the Division of Youth Services, to develop and implement specific treatment programs and facilities for juveniles.” Swindell, 326 N.C. at 475, 390 S.E.2d at 136. We also note that there is no authorization in our statutes to grant legal and physical custody of a juvenile to the Willie M. Services Section of the Division, although the guardian ad litem argues that the Division of Youth Services, also a Division of the Department of Human Resources, is a “person” within the purview of North Carolina General Statutes § 7A-647 (Cum. Supp. 1993), as held in In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991). Doe distinguishes Swindell at 329 N.C. 750-51, 390 S.E.2d 802-03. Based on the aforementioned holdings and reasoning, we agree with the State in the case sub judice. Like the Court in Baxley, because the federal district court has continuing jurisdiction over the question of appropriate treatment of Willie M. children, and because of the role of the Review Panel in evaluating the compliance of the State of North Carolina with the consent order which was agreed to by the parties, we believe that the district court judge exceeded his scope of authority in vesting legal and physical custody of Dylan with the Division, and by directing the Division to take any particular action with respect to Dylan, who had been certified a Willie M. class member. Therefore, we reverse the decision of the trial court. Reversed. Judge WELLS concurs. Judge JOHN dissents.