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Can the Court Detain a Juvenile on a Motion for Review Who’s Run Away on Probation?

Although “don’t run away from home” is not usually a standard condition of probation, several other conditions, such as remain on good behavior, not violate any laws, maintain a curfew, and not violate reasonable rules of the parent or guardian, are clearly stated under NCGS 7B-2510.  So when a juvenile runs from home, a motion for review can be filed alleging a violation of probation.  But can a secure custody order be filed to place the juvenile in detention for this behavior? And what if the juvenile can’t be served with the motion? Can the court then issue an order after the juvenile doesn’t appear in court?

According to the Juvenile Code, it doesn’t appear that running away, as a violation of probation, can be the sole basis for issuing a secure custody order.  NCGS 7B-1903 lists the circumstances in which a juvenile may be placed under secure custody.  Only sections (b) (3) and (d) seem to refer to probation violations.  Under section (d), the juvenile may be detained for a probation violation but only if the juvenile is alleged to have injured persons or damaged property.  Merely running away, without other allegations, doesn’t fit this criteria. Under section (b) (3) the juvenile must have “willfully failed to appear on…charges of probation…providing the juvenile was properly notified.”

Assume that the juvenile has run away, can’t be served, and doesn’t show to the court hearing.  Is this “willfully fail[ing] to appear”?  Unless the juvenile was ordered to show up on that specific court date through a served motion, or otherwise notified in open court under NCGS 7B-1807, it doesn’t appear so. “Notice” isn’t defined under the probation violation statute, 7B-2510.  But sections (d) and (e) refer to “notice” and “hearing,” presumably referring back to NCGS 7B-1807.  Therefore, the juvenile either needed to be served in person (see NCGS 15A-301(c), indicated by NCGS 7B-1806), or be notified in open court.

Faced with this issue, what are some options for the juvenile defender? Counsel should consider objecting if the juvenile hasn’t been served and the court orders secure custody, citing the above mentioned statutes.  Additionally, counsel could file a motion under 7B-2600 to modify, or consider other extraordinary motions. If the order issues and the juvenile is picked up prior to the next court hearing, counsel should consider motioning the case back into court as soon as possible, even if it’s before the mandatory five days under NCGS 7B-1906(a).  If the issue persists in the jurisdiction, counsel should consider approaching court officials in a non-hearing setting to clarify the law and procedure.

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