• Improper Delegation of Authority and Intermittent Confinement

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     Last month, I wrote a blog post about the recently enacted Juvenile Code Reform legislation (S.L. 2015-58, HB 879), which creates several new laws affecting delinquent juveniles. The last section of the bill amends G.S. 7B-2506(12) and (20), which authorize intermittent confinement in a juvenile detention facility as a Level 1 or Level 2 dispositional alternative. Currently, the trial court must determine the timing of the intermittent confinement, but beginning December 1, 2015, it must also determine the imposition of the confinement. Although this change appears to be minor, it addresses a major issue related to juvenile dispositions – the improper delegation of the trial court’s authority, typically, to court counselors. Most of the calls I get about improper delegation of authority in juvenile court concern intermittent confinement, and particularly, how it is imposed. This post will examine how the new legislation was designed to address these concerns by changing the way district court judges impose intermittent confinement.

    What is an Improper Delegation of Authority?

    District court judges have wide discretion under G.S. 7B-2506 to determine appropriate dispositional alternatives for delinquent juveniles, including imposing up to five days of intermittent confinement for a Level 1 disposition, G.S. 7B-2506(12), or up to 14 days as a Level 2 disposition, G.S. 7B-2506(20). This discretion may not be delegated to others.

    The rule was first established by a 2003 case in which the disposition order required a juvenile to “cooperate with placement in a residential treatment facility if deemed necessary by MAJORS counselor or Juvenile Court Counselor.” In re Hartsock, 158 N.C. App. 287, 291 (2003). The appellate court reversed the disposition, concluding that “[t]he statute does not contemplate the court vesting its discretion in another person or entity, therefore, the court, and the court alone, must determine which dispositional alternatives to utilize with each delinquent juvenile.” Id. at 292. The court also reversed the requirement that the juvenile comply with intermittent confinement because the trial court failed to specify the timing of the confinement, and “any delegation of authority [to determine the timing] would have been contrary to the express language of [the] statute.” Id.

    Note that not every delegation of authority by the court is improper. The Juvenile Code specifically authorizes district court judges to delegate certain functions to court counselors, such as issuing secure and nonsecure custody orders under G.S. 7B-1902, and imposing certain conditions of probation under G.S. 7B-2510(b). However, unless statutorily authorized, any delegation of the trial court’s discretional authority is probably improper.

    How Does this Relate to the Imposition of Intermittent Confinement?

    In NC, it has become common practice for judges to order intermittent confinement as a dispositional alternative, but suspend the imposition of those days, upon the juvenile’s compliance with the other terms of the disposition. See, e.g., In re D.L.H., 198 N.C. App. 286, 288 (2009) (trial court imposed 14 days of intermittent confinement, which were stayed upon the juvenile’s compliance with special and general conditions of probation), rev’d in part, 364 N.C. 214 (2010).

    Is this conditional disposition proper? Arguably, yes. In Hartsock, the Court of Appeals said that under G.S. 7B-2506, “a judge could order [that] certain dispositional alternatives apply upon the happening of a condition, since the court, and not another person or entity, would be exercising its discretion.” Hartsock, 158 N.C. App. at 292.

    The issue with conditional orders is that when the juvenile violates a condition that triggers the intermittent confinement, it’s unclear whether a court counselor may immediately place the juvenile in detention or first be required to obtain a court order authorizing the detention. For example, consider the following disposition:

    “The juvenile shall comply with intermittent confinement in an approved detention facility for up to 5 days, to be completed upon the juvenile’s violation of electronic monitoring.”

    In the example above (which is from an actual order), many juvenile advocates would argue that authorizing a court counselor to unilaterally impose the intermittent confinement based on the juvenile’s noncompliance is an improper delegation. (See this blog post on Preventing and Handling Illegal Confinement from the NC Office of the Juvenile Defender). Instead, they argue the court counselor must file a motion for review requesting a hearing, with notice to the juvenile, to allow the court to impose the confinement and to protect the juvenile’s due process rights. An opposing view would be that the court imposed the intermittent confinement at the time it entered the disposition, when the juvenile had an opportunity to be heard and was represented by counsel. The noncompliance simply triggers a consequence already imposed by the court.

    Of course, one problem with the latter position is that the juvenile’s noncompliance is akin to a probation violation, which normally requires that juveniles receive notice, an opportunity to be heard, and be represented by an attorney before the court may impose consequences, including confinement. See generally G.S. 7B-2000 and G.S. 7B-2510(e). The legislature may not have intended for courts to avoid these due process requirements by imposing dispositional alternatives in this manner.

    Does the New Legislation Resolve this Conflict?

    The amendments to G.S. 7B-2506 are designed to prevent judges from improperly delegating their authority to court counselors to impose intermittent confinement. As rewritten by Section 3.2 of S.L. 2015-58, G.S. 7B-2506 requires the court to determine both the timing and imposition of intermittent confinement.

    It’s now clear that only the court may impose the confinement, but what exactly does this mean? The statute doesn’t specifically address whether a motion for review or hearing is required when intermittent confinement days are stayed, although I believe that was the intended result. Considering that courts throughout the state vary widely in the way that intermittent confinement is currently being imposed, I’m interested to see how these changes will be implemented.

    I anticipate receiving lots of questions once the new statutes become effective in December. So, please share any thoughts about this legislation and how you think it will impact the practice in your district.


    LaToya Powell joined the School of Government in 2013. Previously, she spent more than six years with the Appellate Section of the North Carolina Department of Justice handling juvenile delinquency appeals in both state appellate courts and the U. S. Supreme Court. She began her career as a juvenile prosecutor in Johnston County, North Carolina, and has also served as an adjunct professor at Campbell University School of Law. She is a member of the North Carolina State Bar and U.S. Supreme Court Bar. Powell earned a BA, cum laude, from North Carolina State University and a JD from UNC-Chapel Hill School of Law.

    2 thoughts on “Improper Delegation of Authority and Intermittent Confinement”

    • Drew Kukorowski says:

      Two quick points: In the couple of years I’ve been practicing in juvenile court in Charlotte, I’ve never had a court counselor impose suspended/stayed detention days without coming back to court, either for an MFR-Probation Violation or just a general review hearing. As a defense attorney, I’d be irate if that happened – and that’s because I’ve had situations where, initially, it appeared that a youth violated some condition that the judge imposed, but upon some investigation, it turned out that the violation wasn’t willful or there was more to the picture.To my lights, the liberty interest at stake is so great (we’re talking about incarceration, after all) that it would be unreasonable to permit court counselors to impose suspended detention time without some type of hearing.

      Second, I often have judges impose suspended detention days as part of disposition. It tends to happen most when a youth is statutorily required to be subject to a Level 2 disposition and yet has made progress and turned things around by the time the case is heard in court such that locking the youth up would be inappropriate. But the code requires that certain dispo alternatives be imposed for Level 2. So, an easy thing for a judge to do is impose more than 5 detention days and then suspend those days, thereby complying with what the code requires for Level 2 dispo but also crafting a dispo that the judge thinks is appropriate. Just something I’ve noticed.

      • LaToya Powell says:

        Drew, I want to clarify that this post is not about probation violations or imposing consequences for a probation violation. There’s no question that only the court can impose consequences for a probation violation after notice and a hearing, as set forth in 7B-2510(e).

        This post is about judges ordering intermittent confinement as a separate dispositional alternative under 7B-2506 (not as a condition of probation), suspending the days, and ordering that they be immediately imposed upon the juvenile’s noncompliance with other terms of the disposition. I agree that the practice seems unreasonable on due process grounds, which I tried to point out in the post. The problem is that the Juvenile Code doesn’t specifically address this situation (i.e., activation of stayed detention days). Because there is no explicit prohibition, many judges throughout the State often do suspend the IC days and order that the juvenile “is to be placed in secure custody immediately if he/she does ‘xyz.'” I think the statutory amendment will help juvenile defenders argue that the practice violates the Juvenile Code, but I’m not sure that just adding the words “and imposition” is enough to stop this practice. It may require additional legislative changes or appellate litigation to clarify what it means that the judge must determine the “imposition” of the IC days.

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