- A juvenile may be placed on probation for up to one year (and extended for one additional year) as part of a Level 1 or Level 2 disposition.
- Violations of probation are brought before the court on a motion for review -- if proved, a violation can subject the juvenile to sanctions, a new disposition, or confinement.
- Motions for review or extension of probation must be filed before the current term of probation expires.
Overview of Juvenile Probation
One of the disposition options available to the court under G.S. 7B-2506 is to place the juvenile on probation. It is not mandatory that a juvenile be placed on probation in order for the court to order any of the other Level 1 or Level 2 dispositions authorized by G.S. 7B-2506 (restitution, curfew, community service, house arrest, etc.), but in many cases probation will be ordered along with those conditions to ensure adequate monitoring and compliance. The court counselor supervising the juvenile’s probation is authorized to visit the juvenile’s home or residence. G.S. 7B-2506(a). The juvenile may be placed on probation for a maximum initial period of one year, with a possible extension for a maximum of one additional year. See G.S. 7B-2510(c). Other probation conditions imposed under G.S. 7B-2510(a) may include the following:
- Remain on good behavior;
- Not violate any laws;
- Not violate any reasonable and lawful rules of a parent, guardian, or custodian;
- Attend school regularly;
- Maintain passing grades in up to four courses and cooperate with planning for such;
- Not associate with specified people or be in specified places;
- Refrain from use or possession of any controlled substance, refrain from use or possession of any alcoholic beverage, and submit to random drug testing;
- Abide by a prescribed curfew;
- Submit to a warrantless search at reasonable times;
- Possess no firearm, explosive device, or other deadly weapon;
- Report to a juvenile court counselor as required by the counselor;
- Make specified financial restitution:
- Be employed regularly if not attending school; and
- Satisfy any other conditions determined appropriate by the court
The court may not “delegate” its discretionary dispositional authority by allowing another person or agency to set the terms and conditions of probation, except pursuant to G.S. 7B-2510(b), which authorizes the court to give the chief court counselor authority to impose certain other special conditions of probation, as follows:
- Perform up to 20 hours of community service;
- Submit to substance abuse monitoring and treatment;
- Participate in a life skills or educational skills program administered by the Division;
- Cooperate with electronic monitoring (Level 2 disposition only), and
- Cooperate with intensive supervision (Level 2 disposition only).
See In re S.R.S., 180 N.C. App. 151 (2006) (invalidating delegation to court counselor to decide whether counseling and/or out-of-home placement were proper); In re Hartsock, 158 N.C. App 287 (2003); (improper delegation to court counselor to decide whether juvenile should be placed in residential treatment facility); but see In re M.A.B., 170 N.C. App 192 (2005) (not an improper delegation where court ordered restitution and participation in residential treatment program, but left the amount of restitution and the selection of a program up to the court counselor).
The list of conditions in G.S. 7B-2510 is not exclusive. The court is authorized to impose other “conditions of probation that are related to the needs of the juvenile” and “reasonably necessary to ensure that the juvenile will lead a law-abiding life.” Id. The court has wide discretion to set these additional conditions, as long as they do not violate other principles such as the right to due process or confidentiality. See, e.g., In re J.B., 172 N.C. App. 747 (2005) (no error in ordering juvenile not to participate in school sports or dances, and requiring juvenile to wear a necklace containing a picture of the victim and to visit the victim’s grave on the anniversaries of victim’s birth and death); but see In re M.E.B., 153 N.C. App. 278 (2002) (improper to order juvenile to wear a sign saying “I am a juvenile criminal”); In re Schrimpsher, 143 N.C. App. 461 (2001) (improper to order that all other people with whom the juvenile resides must also submit to warrantless searches).
Violations of probation are governed by G.S. 7B-2510(d), (e), and (f). The court may review a juvenile’s progress on probation upon motion of (i) the juvenile court counselor, (ii) the juvenile, or (iii) on the court’s own motion. See AOC-J-241 (Motion for Review). The prosecutor may also be able to initiate a motion for review, but it is not specifically addressed by the statute. The juvenile can be placed in secure custody pending a hearing on the alleged violation if the juvenile is alleged to have damaged property or injured persons. See G.S. 7B-1903(d). The rules of evidence do not apply and hearsay is admissible at violation or review hearings because they are considered “dispositional hearings.” See In re D.J.M., 181 N.C. App. 126 (2007). The burden is on the state to prove by the greater weight of the evidence that a violation has occurred. See G.S. 7B-2510(e).
After notice and a hearing, if the court finds that the juvenile has violated probation, the court’s options are to:
- Continue the original term/conditions of probation;
- Extend the term of probation (see more on this in the final section below);
- Modify the conditions of probation – see, e.g., In re V.A.L., 187 N.C. App. 302 (2007) (upon violation court properly ordered an out-of-home placement, and ordered that juvenile remain in detention until placement became available);
- Order confinement in a juvenile detention facility for up to twice the number of Intermittent Confinement (“I.C.”) days otherwise authorized for the current disposition level by G.S. 7B-2508 (see chart below);
Original Disposition Level
# of IC Days Authorized at Disposition:
# of IC Days Authorized for Probation Violation:
- Order a new disposition at the next higher level on the disposition chart (e.g., impose a new Level 2 disposition for a juvenile who previously received a Level 1 disposition) – except that if the juvenile is currently on Level 2, the court may order a new Level 3 disposition (i.e., Commitment) only if the juvenile is on probation for a Serious or Violent offense, not just a Minor offense (Class 1, 2, or 3 misdemeanor). See G.S. 7B-2510(f).
See generally AOC-J-480 (Order on Motion for Review – Probation Violation); AOC-J-482 (Order on Motion for Review – Post-Release Supervision); see also AOC-J-468 (Level 3 Commitment based on Probation Violation); AOC-J-467 (Level 3 Commitment based on Protective Supervision Violation).
New Offense While on Probation
As in the case of an adult who commits a new offense while on probation, if a juvenile who is on probation commits a new delinquent act that also constitutes a violation of the conditions of probation, the matter can be brought before the court in three ways:
- New Delinquency Petition
After adjudication of the new offense, the court enters a new appropriate disposition, taking into account the nature of the offense and the juvenile’s delinquency history, including the fact that the juvenile was already on probation when he committed the new offense.
- Motion for Review for Violation of Probation
After finding a violation of probation based on the juvenile’s commission of the delinquent act, the court’s options for responding are the ones described above for violation of probation. The juvenile’s delinquency history level (“points”) will not be relevant.
- Both a Petition and a Violation
The juvenile may be charged through both a new petition and a probation violation. See In re O'Neal, 160 N.C. App. 409 (2003) (holding that double jeopardy did not preclude adjudicating the juvenile delinquent for the same offense that was used as the basis for revoking his probation.)
Termination (or Extension) of Probation
The court may terminate probation by written order upon finding that there is no further need for supervision. See G.S. 7B-2511. Unless the court has specified a shorter time, a term of probation automatically ends after one year, if it is not extended by the court. See G.S. 7B-2510, 7B-2511, and 7B-2600. The termination of probation – whether it occurs automatically or by court order – does not by itself terminate the court’s jurisdiction. Jurisdiction continues until at least age 18 (or older, effective 12/1/19, in cases involving juveniles who were 16 or 17 at the time of the offense) unless terminated earlier by the court. See G.S. 7B-1601; see also AOC-J-465 (Order to Terminate Supervision), which includes a space for the court to indicate whether it is terminating or retaining jurisdiction.
Alternatively, the term of probation may be extended (for up to one year) in two ways. First, it can be extended upon finding a violation of the probation conditions, as discussed above. See G.S. 7B-2510(d). Second, even without a violation, the court may extend probation under G.S. 7B-2510(c) if the extension is necessary to protect the community or safeguard the welfare of the juvenile. Though not clearly specified in the statute, the juvenile likely must be given five days written notice of the motion/hearing, or be notified of it in open court. See G.S. 7B-1807. If the court acts under the second basis for extending probation, it must make findings to support the conclusion that an extension is necessary. See In re D.L.H., 198 N.C. App. 286 (2009), rev’d on other grounds, 364 N.C. 214 (2010); AOC-J-481 (Order on Motion for Review – Other).
Timeliness of Violations/Motions
Motions for review (probation violations) and motions to extend or modify probation should always be filed before the end of the current probationary term. As long as the motion/violation is filed before the end of the term, the court has “limited discretion . . . to modify probation within a reasonable time after its expiration.” See In re T.J., 146 N.C. App. 605 (2001). The determination of what amount of time counts as a “reasonable” period after the end of the probation period should be made in light of the time necessary to schedule a hearing, and the time needed by the juvenile and the state to prepare for such a hearing. Id.
If the term of probation has fully concluded before a motion for review is filed, then the court likely does not have any jurisdiction to hear it. See State v. Moore, 148 N.C. App. 568 (2002). The prosecutor and court counselor should determine whether the matter can be brought as a new petition instead.