505.1Complaint & Petition Process

Last Updated: 01/28/20

Key Concepts

  • Upon receipt of a complaint, the juvenile court counselor must first review it for legal sufficiency, and then: (i) authorize filing a petition; (ii) refer the case for diversion; or (iii) resolve the matter without further action.
  • If the court counselor decides not to authorize a petition, the prosecutor may review that decision and direct the court counselor to issue the petition, if appropriate.
  • The pleading in juvenile court is the petition, and the process is the summons. The summons issues immediately upon the filing of a petition with the clerk of court.

Overview

Juvenile court cases begin when a complaint is presented to a court counselor, usually by a law enforcement or another affected party, such as the victim. The court counselor reviews the complaint for legal sufficiency, and if it is found to be sufficient, the court counselor must decide whether the matter should be charged in a petition or “diverted” (i.e., referred for services without filing). If a petition is diverted, the prosecutor may review that decision and direct that the petition be filed, if appropriate. If a petition is filed, then the juvenile and his or her parent or guardian are served with the petition and a summons to appear in court.

Complaint and Intake

In the juvenile justice system, court counselors have a unique role which in some ways incorporates duties performed by several different officials in the adult system (including the magistrate, probation officer, and treatment coordinator). The court counselor’s involvement in a juvenile case usually begins by conducting a “preliminary inquiry” after a law enforcement officer, school official, victim, or other party comes to the counselor’s office and presents a complaint against the juvenile. If the court counselor determines that: (i) the facts presented do not state a case within the jurisdiction of the court; (ii) legal sufficiency for a criminal offense is not met; or (iii) the matter is frivolous, then the court counselor will refuse to file the complaint as a petition. See G.S. 7B-1701.

At the request of a juvenile court counselor, the prosecutor will assist the counselor in “determining the sufficiency of evidence affecting the quantum of proof and the elements of offenses.” Id. In other words, if requested, the prosecutor must help the court counselor decide whether a complaint sufficiently alleges a delinquent act that falls within the jurisdiction of the court, and whether there appears to be sufficient evidence to establish all the necessary elements and prove the case in court.

If the complaint is found to be legally sufficient, then the court counselor’s next step depends upon whether the alleged offense is “divertible” or “nondivertible.” 

Nondivertible Offenses

If the juvenile court counselor finds reasonable grounds to believe that the juvenile has committed any of the following nondivertible offenses, the counselor must immediately authorize the complaint for filing as a petition:

  1. First-degree or second-degree murder, G.S. 7B-1701(1);
  2. First-degree or second-degree rape, G.S. 7B-1701(2);
  3. First-degree or second-degree sexual offense, G.S. 7B-1701(3);
  4. Arson, G.S. 7B-1701(4);
  5. Any violation of Article 5 (Controlled Substances Act), Chapter 90 of the General Statutes that would constitute a felony if committed by an adult, G.S. 7B-1701(5);
  6. First-degree burglary, G.S. 7B-1701(6);
  7. Crime against nature, G.S. 7B-1701(7);
  8. Any felony that involves the willful infliction of serious bodily injury on another, or that was committed by use of a deadly weapon, S. 7B-1701(8). 

Divertible Offenses

If the court counselor finds reasonable grounds to believe that the juvenile has committed any other offense besides the nondivertible offenses listed above, the offense is potentially “divertible.” This means the counselor must conduct an evaluation pursuant to G.S. 7B-1702 and exercise his or her discretion in deciding whether the complaint should be: (i) filed as a petition; (ii) addressed through “diversion” under G.S. 7B-1706 (e.g., through a Teen Court program); or (iii) “resolved” without taking any further action at all (e.g., let the parents or school discipline the juvenile). The intake and evaluation process to make this decision should include, if possible, in-person interviews with the complainant, victim, juvenile, the juvenile’s parent or guardian, and any other person known to have relevant information about the juvenile. See G.S. 7B-1702(1), (2), (3).

If the court counselor elects to send the case to diversion, he or she will prepare a diversion plan which may include referring the juvenile for appropriate counseling, mediation, restitution, community service, and other community resources. See G.S. 7B-1706(a). After no more than 60 days, the court counselor shall determine whether the juvenile and the parent, guardian, or custodian are complying with the plan. See G.S. 7B-1706(e). The juvenile may be required to sign a “diversion contract” agreeing to cooperate with the plan, and acknowledging that failure to do so will result in the petition being filed. See G.S. 7B-1706(b). The juvenile’s compliance with the diversion plan must be monitored, and the court counselor must reconsider filing a petition if the juvenile does not comply. See G.S. 7B-1706(e). 

If the juvenile fails to successfully complete the diversion plan, or if the court counselor conducts an evaluation and decides from the outset that the alleged offense warrants filing a petition, then the court counselor must file a petition as explained in Section D below. 

Gang Assessment

Effective December 1, 2019, the evaluation and intake process now also includes a “gang assessment” by the court counselor to determine: (i) if the juvenile satisfies sufficient criteria (including self-admission, tattoos, use of code words or hand signals, and social media posts) to be identified as a criminal gang member; or (ii) if the offense was committed to benefit, promote, or further the interests of a criminal gang. See G.S. 7B-1702; 7B-2508.1. The results of this assessment must be included in the court counselor’s record. See G.S. 7B-3001(a). If the offense was committed as a part of gang activity, the juvenile’s disposition level will be increased one level higher. See G.S. 7B-2508(g1). 

Prosecutor’s Review of Decision 

If the court counselor decides not to approve the filing of a petition, he or she must provide written notification of that decision to both the complainant and the victim (if the victim is not also the complainant). See G.S. 7B-1703(c). The complainant and the victim then have five calendar days after receiving the notice of the court counselor’s decision to request a review of that decision by the prosecutor. See G.S. 7B-1704

If either the complainant or the victim requests a review, the court counselor must immediately notify the prosecutor of the request and give the prosecutor a copy of the complaint. G.S. 7B-1704. No later than 20 days after the complainant and victim are notified, the prosecutor must review the juvenile court counselor’s determination that a juvenile petition should not be filed. G.S. 7B-1705. The prosecutor’s review must also include a conference with the complainant, victim, and court counselor. At the conclusion of the review, the prosecutor must: (i) affirm the juvenile court counselor’s decision not to file; or (ii) direct the court counselor to file the petition; and (iii) notify the complainant and the victim as to which course of action the prosecutor has chosen. See G.S. 7B-1705.

Issuance of Petition

The court counselor must make the decision to file a petition within 15 days after the complaint was initially received (or within 10 days of determining that the juvenile has failed to comply with a diversion plan). See G.S. 1703(b); 1706(e). One extension for an additional period of 15 days may be granted at the discretion of the chief court counselor. See G.S. 1703(b). These time periods are statutory directives which should be followed, but the North Carolina Supreme Court has held that failure to file a petition within this time period does not divest the trial court of jurisdiction or require dismissal of the charge. See In re D.S., 364 N.C. 184 (2010); In re J.A.G., 206 N.C. App. 318 (2010). 

If the juvenile court counselor determines that the petition should be filed, he or she must assist the complainant with drafting the petition, if needed, after which it is signed by the complainant and verified under oath. See AOC-J-310 (Juvenile Petition). If necessary (such as when a court counselor is only reachable by phone), the clerk may assist with drawing up the petition for signing and filing. See G.S. 7B-1803; 1703(b). The petition must be dated, marked as “approved for filing,” signed by the court counselor, and transmitted to the clerk. See G.S. 7B-1703(b). This constitutes the formal commencement of the juvenile proceeding. See G.S. 7B-1804(a). In emergency situations, such as when a secure custody order is needed along with the petition but the clerk’s office is closed, a magistrate may accept the petition. See G.S. 7B-1804(b).

The petition must contain the juvenile’s name, date of birth, and address, and must allege facts sufficient to invoke the court’s jurisdiction and provide a plain and concise statement of facts supporting every element of the alleged delinquent offense. See G.S. 7B-1802. The standards for evaluating the sufficiency of a petition are essentially the same as those for the sufficiency of an indictment. See, e.g., In re D.B., 214 N.C. App. 489 (2011) (evaluating a jurisdictionally defective juvenile petition for larceny under same standards as a larceny indictment). 

Practice Pointer

Can the prosecutor be the complainant? 
Yes. The complainant is usually either a law enforcement officer or an alleged victim, but a prosecutor can also sign a petition as the complainant as long as: (i) the juvenile court counselor follows the statutory procedures before the petition is signed; and (ii) the prosecutor does not encroach on the role of the juvenile court counselor. See In re Stowe, 118 N.C. App. 662 (1995). This is an important time-saving tool that the prosecutor can use for superseding fatally defective petitions, which are addressed in the next entry, Petitions – Defects & Amendments

The generic juvenile petition form (AOC-J-310) can be used to charge any delinquent offense, and a similar form (AOC-J-230) can be used to allege that a juvenile is undisciplined. However, there are more than two dozen specific AOC forms available that can be used to charge some of the most common juvenile offenses. Complainants and court counselors are encouraged to use these forms whenever possible to avoid inadvertent drafting errors or omissions.

Trespassing

AOC-J-311

Misdemeanor Assault

AOC-J-312

Felony B&E/Larceny

AOC-J-313

Communicate Threats

AOC-J-314

Conceal Merchandise

AOC-J-315

Weapon on Campus

AOC-J-316

Indecent Liberties

AOC-J-317

Forgery/Uttering

AOC-J-318

Larceny/Possession

AOC-J-319

Unauthorized Use M.V.

AOC-J-320

Drive w/o a License

AOC-J-321

Injury - Real Property

AOC-J-322

Injury – Pers. Property

AOC-J-323

Resist/Delay/Obstruct

AOC-J-324

CCW

AOC-J-325

Disorderly Conduct

AOC-J-326

Sell/Deliver C.S.

AOC-J-327

PWISD

AOC-J-328

Poss. Schedule I

AOC-J-329

Poss. Schedule II-IV

AOC-J-330

Poss. Schedule VI

AOC-J-331

Poss. Paraphernalia

AOC-J-332

Simple Affray

AOC-J-333

Poss. Stolen Property

AOC-J-334

1st Deg Sex Offense (under 13)

AOC-J-335

2nd Deg. Sex Offense (forcible)

AOC-J-336

1st Deg. Sex Offense (forcible)

AOC-J-337

 

Summons to Appear

Immediately after a petition is filed, the clerk shall issue a summons to both the juvenile and his or her parent, guardian or custodian, directing both of them to appear for a hearing. See G.S. 7B-1805(a); AOC-J-340 (Juvenile Summons and Notice of Hearing). The summons shall include notice of the nature and purpose of the proceedings, the right to counsel, and the court’s ability to order a disposition and subsequent orders if the juvenile is adjudicated delinquent. See G.S. 7B-1805(b). The summons must also inform the parent, guardian, or custodian that the court has jurisdiction over him or her based upon gaining jurisdiction over the juvenile. See G.S. 7B-1805(c). Service should be made personally at least 5 days before the hearing, but may be accomplished by other means such as mail or publication if the person cannot be found after a diligent attempt. See G.S. 7B-1806. For purposes of service of a summons in a delinquency case, G.S. 7B-1806 incorporates G.S. 15A-301(a), (c), (d), and (e). Provisions relating to criminal process in G.S. 15A-301(a), (c), (d), and (e) apply to process in delinquency cases, except that the time for return of an unserved summons is 30 days.

But because delinquency proceedings are civil proceedings, the Rules of Civil Procedure apply, so the juvenile and the juvenile’s parent or guardian waive any defect in service or process by appearing and participating in the proceeding without objecting. In re D.S.B., 179 N.C. App. 577 (2006).

Portions of this entry were excerpted from the 2017 North Carolina Juvenile Defender Manual, Chapters 5 and 6, by David W. Andrews and John Rubin.