511.1Secure Custody Hearing

Last Updated: 08/16/21

Key Concepts

  • When a juvenile is being held in secure or nonsecure custody, periodic hearings are required to evaluate whether continued detention is still necessary.
  • The state has the burden of demonstrating the need for continued custody by clear and convincing evidence that shows the restraints on the juvenile’s liberty are necessary, and that no less intrusive alternative will suffice.
  • The rules of evidence do not apply at a custody hearing.

Custody Overview

A juvenile may be taken into temporary custody if there would be grounds to arrest an adult under the same circumstances. See G.S. 7B-1900. The juvenile will either be released to a parent, guardian or other responsible adult (with or without conditions), or the petitioner may obtain a court order to have the juvenile placed in secure or nonsecure custody pending adjudication, disposition, and/or placement. See G.S. 7B-1906; AOC-J-440 (Order for Secure Custody); AOC-J-441 (Order for Nonsecure Custody). For more general information on secure and nonsecure custody, see the related Juvenile entry on Custody & Questioning.

Whenever a juvenile is being held in secure or nonsecure custody, the court is required to conduct periodic hearings to determine whether it is necessary to continue that custody, as described below.

When a Hearing is Required

No juvenile may be held for more than 5 days on a secure custody order (or 7 days on a nonsecure custody order) without having an “initial hearing” on the merits of the custody order. See G.S. 7B-1906(a). Alternatively, the court may proceed directly to an adjudication hearing on the merits of the underlying petition within those same time limits, if practicable. See G.S. 7B-1906(a). If the custody order was entered by the chief court counselor (rather than a judge) under the delegated authority provision of G.S. 7B-1902, then the first hearing on the secure custody order must happen on the day of the next regularly scheduled session of district court for the city or county where the order was entered – if that session precedes the other time limits otherwise set forth by statute (i.e., 5 or 7 days). If the session does not precede those time limits, then then the hearing may be conducted at another regularly scheduled session of district court within the district where the order was entered. See G.S. 7B-1906(a).

As long as the juvenile remains in secure custody, subsequent hearings must be held at intervals of no more than 10 days. See G.S. 7B-1906(b). If the juvenile remains in nonsecure custody, subsequent hearings must be held at intervals of no more than 30 days. See G.S. 7B-1906(b). The juvenile may not waive the first hearing on the need for continued custody, but he or she may waive subsequent hearings. See G.S. 7B-1906(a), (b). For juveniles age 16 or over who are charged with a Class A-G felony, secure custody hearings only need to be held every 30 days, unless the court (upon request of the juvenile, and based upon a determination of good cause) determines that the standard 10 day interval should be used instead. See G.S. 7B-1906(b1).

Conducting the Hearing

The rules of evidence do not apply at secure and nonsecure custody hearings, so the state should be permitted to offer hearsay evidence such as witness statements through a single, knowledgeable witness – for example, through the investigating officer, petitioner, or court counselor. See G.S. 7B-1906(d). The court is directed to receive testimony on the issue, and to allow the juvenile (and his parent, guardian, or custodian) to testify, introduce evidence, or examine witnesses, if they choose. Hearings can be held remotely through audio and video transmission, as long as the videoconferencing application used has been approved by the Administrative Office of the Courts and the juvenile has means to communicate confidentially with his or her attorney when needed. See G.S. 7A-49.6; see also S.L. 2021-47 (repealing G.S. 7B-1906(h), the prior statute governing remote secure custody hearings). There is no statutory requirement that secure custody hearings be recorded.

At each hearing on the need for continued custody, the state has the burden of proving by clear and convincing evidence that the restraints on the juvenile’s liberty are necessary, and that no less intrusive alternative will suffice. See G.S. 7B-1906(d). The same criteria used for issuing the custody order apply at each subsequent hearing on the need for continued custody. See G.S. 7B-1903. This means the state must demonstrate that there is a reasonable factual basis to believe: (i) that the juvenile committed the offense, and (ii) at least one of the following conditions under G.S. 7B-1903(b) exists:

  1. Juvenile is charged with a felony, and has demonstrated he or she is a danger to persons or property;
  1. Juvenile is charged with a misdemeanor in which either assault on a person or the possession, use, display, or threatened use of a firearm or deadly weapon is an element, and has demonstrated he or she is a danger to persons or property;
  1. Juvenile is charged with a violation of G.S. 20-138.1 or 20-138.3, and has demonstrated he or she is a danger to persons; 
  1. Juvenile has willfully failed to appear (after being notified) on a pending delinquency charge, probation violation, or post-release supervision violation;
  1. Juvenile has a pending delinquency charge, and there is reasonable cause to believe the juvenile will not appear;
  1. Juvenile is an absconder from a juvenile detention or residential facility;
  1. There is reasonable cause to believe juvenile should be detained for his or her own protection due to risk of self-harm [see additional requirements and conditions, G.S. 7B-1903(b)(6)]; 
  1. Juvenile is alleged to be undisciplined for running away, and is appropriate for nonsecure custody placement but refuses to go – if so, court may order secure custody for up to 24 hours to evaluate juvenile’s needs and facilitate reunion with parents;
  1. Juvenile is alleged to be undisciplined and has willfully failed to appear in court after receiving proper notice – if so, juvenile may be taken into custody for up to 24 hours for purposes of bringing to court as soon as possible. 

Results of Hearing

  1. Continued Detention

The judge must make findings of facts and enter a written order indicating that there is a reasonable basis to believe the juvenile committed the alleged offense, and stating the grounds on which custody is being ordered. See G.S. 7B-1906(g); AOC-J-440 (Order for Secure Custody). To order a continuation in nonsecure custody, the court must make a finding that the juvenile qualifies for secure custody under one or more of the grounds listed in G.S. 7B-1903(b), but the court has determined that nonsecure custody is in the best interests of the juvenile. See G.S. 7B-1905; AOC-J-441 (Order for Nonsecure Custody). The court must also schedule the next custody review hearing, in accordance with the schedule set forth in G.S. 7B-1906(a), unless the juvenile elects to waive the hearing as described above.

The discussion above generally assumes that the juvenile is being held in secure custody pending an adjudication hearing (analogous to an adult defendant being held in pretrial detention). If the juvenile has already been adjudicated and is now being held in custody pending disposition, or if disposition has been completed and the juvenile is in custody awaiting placement at a facility, the requirements for the custody hearing are less strict. The court is still required to conduct a hearing, unless it is waived. See G.S. 7B-1906(b); In re D.L.H., 198 N.C. App. 286 (2009)overruled on other grounds, 364 N.C. 214 (2010). However, the court is not required to make any specific factual findings or state the evidentiary basis to support its decision to continue secured custody, because the statutes explicitly authorize detaining a juvenile after adjudication without setting any further requirements. See G.S. 7B-1906(c); In re Z.T.W., 238 N.C. App. 365 (2014)In re R.D.R., 175 N.C. App. 397 (2006).

  1. Release (With or Without Conditions)

After the hearing, the court may decide to release the juvenile from custody. If so, the court may impose restrictions on the juvenile’s liberty pending the adjudication hearing pursuant to G.S. 7B-1906(f), including:

  1. Written promise of the juvenile’s parent, guardian, or custodian to produce the juvenile in court for subsequent hearings.
  2. Release into the care of a responsible person or organization.
  3. Release conditioned on restrictions on the juvenile’s activities, associations, residence, or travel, if the restrictions are reasonably related to securing the juvenile’s presence in court.
Portions of this entry were excerpted from the 2017 North Carolina Juvenile Defender Manual, Chapter 8, by David W. Andrews and John Rubin.