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The Study

The two briefs released in the Study, Youth Reoffending: Prevalence and Predictive Risk Factors in Two States (hereinafter Brief 1)[1] and Protective Factors and Strength-Based Services: Impacts on Long-Term Youth Reoffending (hereinafter Brief 2),[2] include analysis of over 32,000 youth with a new juvenile justice system complaint (delinquency or a status offense) over three years. The research on risk factors included youth who had a risk assessment completed and the research on protective factors included youth who completed a protective factors survey designed for the Study. Reoffending was measured by tracking new juvenile petitions and adult charges during the time the youths were under supervision and for an average of 2.5 years after their supervision ended.

Risk Factors that Impacted Recidivism

Risk Assessment was Accurate

Brief 1 offers a summary of study findings related to risk factors. The first key finding relates to the validity of the risk assessments used in the study states. The researchers found that the risk assessment instruments were functioning as intended in that they generally accurately predicted reoffending after the time on supervision ended. Additionally, the majority of youths who were referred to the juvenile justice system were assessed as having low or moderate risk to reoffend.

Risk assessment is in use in North Carolina’s juvenile justice system. The Youth Assessment and Screening Instrument (YASI) is administered by juvenile court counselors and the results must be provided to the court with the predisposition report. G.S. 7B-2413. Findings from the Study reinforce the value of this risk assessment process. As described in Brief 1, focusing juvenile justice system resources on youth who are high risk and therefore more likely to reoffend is a way to maximize the public safety benefits of a juvenile justice system with limited resources.

Risk Factors Most Likely to Predict Reoffending

The Study identified the following risk factors as those that were most likely to predict reoffending for a new offense against a person: past aggressive behaviors, personality and attitudes that condone crime, negative peer influences, familial supervision problems, and school behavioral problems. At the same time, the most common risk factors actually present at the time of the initial risk assessment were substance use and unstructured or poor use of leisure time.

The findings suggest that interventions focused on the most common risk factors, rather than factors most closely tied to reoffending, are not likely to have the most impact on reducing reoffending. Instead, Brief 1 notes that “[r]esearch has shown that services such as cognitive behavioral therapy, family therapy, and skill-building activ­ities can reduce recidivism for higher-risk youth by targeting the risk factors shown by this study to be most strongly associated with serious offending.” Brief 1, p. 4.

Important to Address Substance Use of Younger Youth

While substance use was not one of the risk factors found most likely to predict reoffending among all the youths in the Study, substance use was a predictor of reoffending for youths aged 14 and under. This suggests that addressing substance use among younger justice-involved youth may meaningfully interrupt their patterns of offending.

Protective Factors

Brief 2 provides study findings related to protective factors. The protective factor that rose to the top as most consistently associated with reductions in reoffending was self-control. The Brief acknowledges that there is not a lot of research on what interventions effectively improve self-control among youth. It is noted that there is some evidence that social skills training targeting personal responsibility, conflict resolution, model behavior, and attention training and family-based interventions like Multisystemic Therapy and Parent Management Training can have some impact on increasing youth self-control.

One of the study states had a large enough sample to detect smaller effects. In that state the protective factors of social support from caregivers and prosocial engagements were also found to protect against reoffending.

Just as age had an impact on the impact of substance use as a risk factor, there were age differences related to protective factors. School connectedness was protective against reoffending for youths aged 9 – 12. However, school connectedness was not associated with reduced reoffending among older youth. In the larger state where smaller effects could be detected, prosocial identity and having a sense of purpose showed effects on reducing reoffending for younger youths.

Strength-Based Services Increased Reoffending

Possibly the most surprising finding described in Brief 2 is that youths who received strength-based services were more likely to reoffend. As described in Brief 2, strength-based services “were defined as those target­ing the development of competencies, skills, prosocial activities, and other protective factors to foster positive outcomes.” p. 2. Educational supports, vocational training and work placement, structured recreational activities, life skills or social skills classes, and mentoring were among the kinds of services that were categorized as strength-based services.

The Study broke new ground in that participating states tracked the type and length of services that youths received across systems (i.e., juvenile justice, child welfare, education, Medicaid). The researchers were able to analyze youth reoffending in relation to whether they received strength-based services.

The analysis found “[i]n the two states where researchers could measure the influence of strength-based services on recidivism, youth who received any such services (compared to those receiving none) were more likely to reoffend post-supervision, both for any offense and for violent offenses.” Brief 2, p. 5.

The researchers posited several potential reasons for this finding, including the following possibilities.

• There is not much research and no implementation guidance on how to structure strength-based services in a way that reduces reoffending.
• Many strength-based services happen in groups of youths where there may be a contagion effect.
• It may be necessary to address certain risk factors before providing strength-based services (i.e., address aggression and impulsivity before engaging in a work placement).

It may seem counterintuitive that many types of services that appear on their face to offer positive opportunities for youths are associated with increases in reoffending. The researchers note that more research into implementation of strength-based services is needed to understand “what inter­ventions effectively enhance youth’s priority pro­tective factors and how best to implement them.” Brief 2, p. 6.

Where Does This Leave Us?

While the findings related to strength-based services may be surprising, the briefs reinforce that there is a body of well-researched, evidence-based interventions for reducing juvenile offending. The briefs for this study mention some of them, like Multisystemic Therapy and cognitive behavioral therapy. The Study findings do not call the efficacy of these interventions into question. In fact, they provide further support for them to the extent that they increase youth self-control and social support from caregivers. The Division of Juvenile Justice and Delinquency Prevention supports Functional Family Therapy, an evidence-based intervention, in all 100 North Carolina counties.

The findings also offer insight into two things that are important to address for younger youths: substance use and school connectedness. At the same time, the findings suggest that addressing these things is not impactful for reducing reoffending among older youth. These findings offer food for thought about how to narrow the use of interventions on a case-by-case basis to use limited resources in a manner that achieves maximum benefits for public safety.

[1] Vincent, G. M., Skeem, J., & Weber, J. (2024). Youth Reoffending: Prevalence and Predictive Risk Factors in Two States. Worcester, MA: UMass Chan Medical School, Department of Psychiatry, Law & Psychiatry Program. https://doi.org/10.13028/219x-vs03.

[2] Weber, J., Skeem, J., Jian, L., Pendleton, J., Carew, K., & Vincent, G. M. (2025). Protective Factors and Strength-Based Services: Impacts on Long-Term Youth Reoffending. Worcester, MA: UMass Chan Medical School, Department of Psychiatry, Law & Psychiatry Program.

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When Motor Vehicles are Subject to Seizure Based on Charges Included in G.S. 20-28.3, Generally

Motor vehicles are subject to seizure under G.S. 20-28.3 when either of the below applies.

1. The driver is charged with an offense involving impaired driving and at the time of that offense a) the driver’s license was revoked as a result of a prior impaired driving license revocation or b) the driver did not have a valid drivers license and was not covered by an automobile liability policy. G.S. 20-28.3(a).
2. The driver is charged with felony speeding to elude arrest. G.S. 20-28.3(a1).

The question therefore is whether allegations that a juvenile committed these offenses constitutes being charged under the meaning of this statute.

The Age of the Juvenile at the Time of the Offense Determines the System with Original Jurisdiction

The Juvenile Code defines a juvenile as someone who “has not reached the person’s eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States.” G.S. 7B-1501(17). But a different definition of delinquent juvenile governs whether offenses alleged to have been committed by someone under the age of 18 are subject to original juvenile jurisdiction. G.S. 7B-1501(7). Under that definition, motor vehicle offenses alleged to have occurred when the juvenile was age 16 or 17 are never subject to juvenile jurisdiction. G.S. 7B-1501(7)b. Those cases are criminal cases from their inception. Therefore, charges for motor vehicle offenses involving impaired driving and felony speeding to elude arrest when committed at age 16 or 17 are criminal matters despite the fact that people under the age of 18 generally fall under the definition of juvenile. As criminal matters, the juveniles in these cases are charged just like any other defendant in a criminal matter. The vehicle seizure statute in G.S. 20-28.3 clearly applies in these cases.

Juveniles who are alleged to have committed motor vehicle offenses when they are younger than age 16 are situated differently. These youth are subject to original juvenile jurisdiction for motor vehicle offenses. G.S. 7B-1501(7)a. Whether the seizure law contained G.S. 20-28.3 applies in these cases is a more complicated question.

Delinquency Allegations Do Not Constitute Charges Under G.S. 20-28.3

There is no definition of what it means to be charged in G.S. 20-28.3. However, other language in Chapter 20 informs that meaning. First, G.S. 20-16.2(a1), part of the implied consent law, states that a “person is ‘charged’ with an offense if the person is arrested for it or if criminal process for the offense has been issued.” Because this definition clarifies what it means to be charged with an implied-consent offense, including for an offense involving impaired driving, and because offenses involving impaired driving trigger motor vehicle seizure under G.S. 20-28.3, this definition arguably applies for the purposes of G.S. 20-28.3.

The definition of being charged contained in G.S. 20-16.2(a1) does not apply to cases subject to delinquency jurisdiction under its plain language. The Juvenile Code does not use the term arrest. Instead, youth who are subject to delinquency jurisdiction are “taken into temporary custody” when grounds exist for the arrest of an adult in the same circumstances. G.S. 7B-1900. Additionally, criminal process is not issued in delinquency matters. Instead, delinquency matters are initiated through a civil petition and summons process. G.S. 7B-1801. Therefore, youth subject to delinquency jurisdiction are not included in this definition of what it means to be charged with an implied consent offense.

Second, the language contained in G.S. 20-28.3 is exclusively criminal. In addition to use of the word “charged,” the person charged is referred to as the “defendant.” The word defendant is not part of the Juvenile Code. Instead, the youth who is subject to delinquency proceedings is referred to as the “juvenile.” The language of G.S. 20-28.3 also references “district court trials” and “pretrial release” of seized vehicles. Delinquency proceedings do not include trials or the concept of pretrial release. Instead, delinquency matters have “adjudications” (G.S. 7B-2403) and “secure custody orders.” G.S. 7B-1904.

Given this plain language of the statute along with definition of what it means to be charged with an offense included in G.S. 20-16.2(a1), it appears that the motor vehicle seizure procedure in G.S. 20-28.3 does not apply when offenses involving impaired driving or felony speeding to elude arrest are subject to juvenile jurisdiction.

What if a Seizure Order is Improperly Issued?

The AOC-CR-323A is the form used to order motor vehicle seizure and impoundment following a qualifying charge for an offense involving impaired driving. The AOC-CR-323B is the form used to order motor vehicle seizure and impoundment following a charge for felony speeding to elude arrest. If one of these forms is used to order seizure of the motor vehicle in a matter that is subject to juvenile jurisdiction, the form should be amended to rescind the seizure order and require release of the vehicle.

Because delinquency matters begin with intake through the juvenile court counselors’ offices (G.S. 7B-1700), delinquency matters may not be immediately filed with the court. If a seizure order was improperly issued and the matter has not been filed as a petition in juvenile court, the amended seizure order should be provided to the chief court counselor. If the matter has been filed as a petition in juvenile court when the seizure order is amended, the amended order can be provided to the clerk of court for filing in the matter.

Because these orders are being filed in a delinquency matter, it is important that they remain part of the confidential juvenile court record. G.S. 7B-3000. While they are technically criminal forms, they should be withheld from public inspection as required of all juvenile court records under the Juvenile Code.

In Summary

If the juvenile is being charged as an adult, then the motor vehicle seizure provisions contained in G.S. 20-28.3 apply. If the juvenile is subject to delinquency jurisdiction, the motor vehicle seizure provisions contained in G.S. 20-28.3 do not apply.

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ICJ Rule 1-101 defines an “accused delinquent” as a person charged with an offense that, if committed by an adult, would be a criminal offense. The law of the state in which the charges are pending controls whether the juvenile is an accused delinquent (see a previous blog on the structure of the ICJ for more detail). The ICJ rules provide for both a voluntary and non-voluntary return process for juveniles who are accused delinquents.

Voluntary Return

The voluntary return process is found in ICJ Rule 6-102. It is triggered once an out-of-state juvenile is found in North Carolina and detained. The state seeking the return of the juvenile to proceed with the delinquency matter is called the demanding state. The process, described below, allows the juvenile to voluntarily return to the demanding state.

Use of Secure Custody

If there is an active warrant for the juvenile in the demanding state, the juvenile must be held securely until they are returned to the demanding state. A secure facility is defined by the ICJ rules as a staff secure or locked facility approved for holding juveniles and that prohibits a juvenile in custody from leaving. ICJ Rule 1-101. If there is not an active warrant, North Carolina has the discretion to hold the juvenile at a location North Carolina deems appropriate. Rule 6-102(2.). These requirements apply regardless of the nature of the allegation(s) pending in the other state.

Notification to North Carolina’s ICJ Office

The North Carolina ICJ Office must be notified when the juvenile is detained. That office is required to contact the demanding state’s ICJ Office. ICJ Rule 6-102(3.) This notification process connects the two states about the case and provides the link for ongoing communication about case processing.

Hearing Required

A hearing must then be held to inform the juvenile of their due process rights. ICJ Rule 6-102(5.). The AOC-J-346 is a juvenile petition developed specifically to initiate these proceedings. That form can also be used when an out-of-state juvenile who was adjudicated delinquent in another state is found in North Carolina because of absconding or escape. The petition asks the court to determine whether the juvenile is subject to the ICJ as an accused delinquent (or absconder or escapee).

The court must inform the juvenile of their right to have a hearing to determine if sufficient cause exists to hold them until a requisition or official request for their return has been received from the demanding state. The ICJ Juvenile Rights Form can be used to advise the juvenile of their rights at this point in the proceeding. The ICJ Rules also allow the court to appoint an attorney for the juvenile at this hearing. ICJ Rule 6-102(5.). If the juvenile does not consent to return, then the court should have a hearing to determine if sufficient cause exists to hold the juvenile until a requisition is received from the demanding state. The requisition process is described more fully below in the procedure for a non-voluntary return.

Consent for Voluntary Return

If, after being informed of their rights, the juvenile consents to voluntarily return to the demanding state the juvenile should sign the ICJ Form III Consent for Voluntary Return of Out of State Juvenile. ICJ Rule 6-102(6.). By signing the form, the juvenile is agreeing to return to the demanding state without further legal proceedings. The form also includes an order for the judge to sign, ordering the return of the juvenile based on a finding that the voluntary return of the juvenile is appropriate and in the juvenile’s best interest.

Physical Return of the Juvenile

Once the Form III is completed it must be provided to North Carolina’s ICJ Office, The North Carolina ICJ Office then provides the Form III to the demanding state’s ICJ Office. ICJ Rule 6-102(8.). The demanding state is responsible for transporting the juvenile back to the demanding state. Transport to the demanding state must occur within five business days of the demanding state’s receipt of the Form III to return the juvenile. The time period can be extended for up to five additional business days with the approval from the North Carolina and demanding state ICJ offices. ICJ Rule 6-102(10.) The ICJ rules are silent regarding a remedy for violation of this or any other timeline in the rules. There are also no cases that inform the appropriate remedy if this or any other ICJ timeline is not met.

Non-Voluntary Return

When a juvenile does not consent to a voluntary return at the hearing described above, a requisition process is required to determine if the juvenile should be returned to the demanding state. ICJ Rule 6-103A.

The Requisition Process

The demanding state is required to complete the requisition using the ICJ Form II – Requisition for Escapee, Absconder, or Accused Delinquent. ICJ Rule 6-103A(3.). The requisitioner can be a court in the demanding state or it can be a compact official in the demanding state. If a compact official signs the Form II requisition the requisition must be verified by affidavit. The petition alleging delinquency must be attached to the requisition. If the juvenile is in custody, the demanding state has 60 calendar days from the time of notification of the juvenile’s refusal to voluntarily return to present the requisition to their court or appropriate authority for signature.

Once the requisition is signed by the court or appropriate authority in the demanding state, the ICJ Office in the demanding state submits the requisition and attached petition to North Carolina’s ICJ Office. ICJ Rule 6-103A(4.). North Carolina’s ICJ Office then forwards the requisition and petition to the appropriate North Carolina court and requests a hearing. The hearing must be held within 30 calendar days of receipt of the requisition. ICJ Rule 6-103A(5.)

Hearing

The court can appoint an attorney to represent the juvenile at the hearing. ICJ Rule 6-103A(6.). Because this will be the second hearing for the juvenile in this matter, it is likely that they will already have counsel.

The court is required to inform the juvenile of the demand made for their return through the requisition. The question to be answered at the hearing is whether there is proof of entitlement for the return of the juvenile to the demanding state. ICJ Rule 6-103A(6.). Proof of entitlement is defined as “documentation or other evidence submitted as part of a requisition that enables a court to verify the authority of the requisitioner to the return of a juvenile.” ICJ Rule 1-101. In the case of an accused delinquent, the demanding state petition alleging delinquency serves as the documentation that enables the court to verify the authority of the requisitioner to the return of the juvenile. If the court finds that proof of entitlement is not established, the court must issue written findings that detail the reason(s) for denial. ICJ Rule 6-103A(6.).

Confinement Pending Hearing

An out-of-state accused delinquent who is taken into custody on a warrant must be held in secure custody until they are returned by the demanding state. ICJ Rule 6-103A(1.). Additionally, a requisition can be used to request that a juvenile whose whereabouts are known, but who is not in custody, “be picked up and detained pending return.” ICJ Rule 6-103A.

If there is no warrant or requisition in the matter, the juvenile may not be in custody while the demanding state obtains the requisition. However, every juvenile is required to be detained once the North Carolina ICJ Office requests the hearing on the requisition. ICJ Rule 6-103A(5.). In this circumstance the juvenile must be held in secure custody from the time the hearing is requested until the hearing occurs. Juveniles can be held in secure custody for a maximum of 90 calendar days pending non-voluntary return to the demanding state. ICJ Rule 6-103A(8.).

The ICJ Rules are silent regarding any ongoing hearings on the need for secure custody. The plain language of G.S. 7B-1906 requires an initial hearing on the need for secure custody and ongoing hearings on the need for continued secure custody for all juveniles being held in secure custody. It seems that unless the juvenile waives the need for ongoing secure custody hearings, the hearings should occur as required by the Juvenile Code.

At the same time, the criteria for continuing secure custody under G.S. 7B-1906(d) are not applicable under the binding rules of the ICJ. As explained in chapter 1.6 of the ICJ Bench Book for Judges and Court Personnel, “Where state law and a compact conflict, courts are required under the Supremacy Clause (for compacts with consent) and as a matter of contract law to apply the terms and conditions of the compact to a given case.  The fact that a judge may not like the effect of a compact or believes that other state laws can produce a more desirable outcome is irrelevant.  The compact controls over individual state law and must be given full force and effect by the courts.” Therefore, North Carolina courts must follow the mandates for detention in the ICJ Rules even if the juvenile would otherwise qualify for release from secure custody under the Juvenile Code.

Return to the Demanding State

The court order regarding the requisition must be forwarded to North Carolina’s ICJ Office. That office will then forward the order to the ICJ Office in the demanding state. The juvenile must be returned by the demanding state within 5 business days of the receipt of the order granting the requisition. If both ICJ offices approve, the time for return can be extended by 5 additional business days.

If the juvenile has charges pending in North Carolina, those charges must be resolved before the juvenile is returned to the demanding state unless courts in both states and both state ICJ offices consent to return to the demanding state before the North Carolina charges are resolved. ICJ Rule 7-103.

And Vice Versa

This blog is written from the perspective of an out-of-state juvenile who is found in North Carolina and accused of an act of delinquency in another state. Because the ICJ is binding in all states, the same process applies when a juvenile is accused of an act of delinquency in North Carolina and is found in another state. In that situation North Carolina becomes the demanding state. The same ICJ procedure regarding voluntary and non-voluntary return applies.

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New Juvenile Capacity Court Forms

The North Carolina Administrative Office of the Courts (NCAOC) released four new forms that can be used when a juvenile’s capacity to proceed is raised in a delinquency matter.

1. AOC-J-260: MOTION QUESTIONING JUVENILE’S CAPACITY TO PROCEED

In any delinquency case other than cases subject to mandatory transfer through the return of an indictment the juvenile’s attorney, prosecutor, or court can raise the question of the juvenile’s capacity to proceed at any time through a motion. G.S. 7B-2401.2(a), G.S. 7B-2401(c). The motion must detail the specific conduct that leads the moving party to question the juvenile’s capacity. The AOC-J-260 is the new form for a motion to raise the question of a juvenile’s capacity.

2. AOC-J-261: ORDER APPOINTING QUALIFIED FORENSIC EVALUATOR

The procedure for appointing a forensic evaluator in a delinquency matter changed significantly with the enactment of the new law. The court can now only appoint a forensic evaluator who is qualified by the North Carolina Department of Health and Human Services (DHHS) to conduct juvenile forensic evaluations (see the section below on finding a forensic evaluator for information on certain evaluators who are grandfathered in for one year). G.S. 7B-2401.2(b). The AOC-J-261 should be used to appoint that person.

The form can be used to 1) make an initial appointment of a qualified forensic evaluator, 2) appoint a qualified forensic evaluator when the juvenile is challenging the capacity determination in an initial evaluation, or 3) extend the time limit for submission of the forensic evaluation to the court. The form provides space to name the specific person who is being appointed. The form also includes several other details found in G.S. 7B-2401.3, including:

• What the evaluator must consider.
• What must be detailed in the report, including things that must be in a report when the evaluator’s opinion is that the juvenile is incapable of proceeding.
• That the evaluation must occur in the least restrictive environment considering the best interests of the juvenile and public safety.
• Details that govern transmission of the report to court.
• A timeline for completion of the evaluation and submission of the report to the court.
• The option to require the Division of Juvenile Justice (DJJ) to transport the juvenile or to require the juvenile to present themself for the evaluation.
• The release of confidential information about the juvenile to the evaluator.

The form also includes that the evaluator must get a reasonable fee, to be determined by the court in accordance with reimbursement guidelines maintained by the NCAOC. This reflects a new requirement for reimbursement of juvenile forensic evaluators contained in G.S. 7B-2401.3(h). The NCAOC has not yet released new forms to apply for or order these fees. However, it is anticipated that new forms similar to the existing expert reimbursement forms currently used by the State and Guardians ad Litem will be issued.

3. AOC-J-262: ORDER COMMITTING JUVENILE TO STATE FACILITY FOR EXAMINATION ON CAPACITY TO PROCEED

As was the case under the previous law, if the juvenile is charged with committing an offense that would be a felony if committed by an adult, the court can order the juvenile to a state facility for up to 60 days for observation and treatment to determine the juvenile’s capacity to proceed. G.S. 7B-2401.2(c). If the court orders the juvenile to a state facility without first having a local forensic evaluation, the court must find that an exam at a state facility is more appropriate.

The AOC-J-262 is the form to order the juvenile to a state facility for a forensic evaluation. The form includes information required under the new laws, including:

• The name and address of the facility.
• A requirement for DJJ to transport the juvenile, and to provide the juvenile’s charging documents and any local forensic evaluation to the facility.
• A requirement that the evaluation be conducted by an evaluator who possesses the minimum standards required to conduct juvenile forensic evaluations.
• What the evaluator must consider.
• What must be detailed in the report, including things that must be in a report when the evaluator’s opinion is that the juvenile is incapable of proceeding.
• That the evaluation must occur in the least restrictive environment necessary considering the best interests of the juvenile and public safety.
• That the report must be submitted to the court within 30 days after completing the evaluation.
• Details that govern transmission of the report to court.
• The release of confidential information about the juvenile to the facility.

4. AOC-J-263: ORDER ON HEARING TO DETERMINE JUVENILE’S CAPACITY TO PROCEED

The court is required to hold a hearing when the juvenile’s capacity to proceed is questioned. G.S. 7B-2401.2(h). The AOC-J-263 is the form to use at the conclusion of such a hearing. It has three components.

I. A section for findings. The findings can include that the parties stipulate that the juvenile is capable to proceed. This kind of stipulation is allowed under G.S. 7B-2401.2(h), resolves the question of the juvenile’s capacity, and allows the matter to proceed.

If the parties do not stipulate that the juvenile is capable to proceed then a hearing must occur, and the court must make a determination regarding the juvenile’s capacity. The order must contain findings of fact to support the court’s determination. The findings section of the AOC-J-263 contains space for these findings.

II. A section for the capacity determination. This section of the form provides language for the court to find that the juvenile is or is not capable to proceed. To find that the juvenile lacks capacity to proceed, the juvenile must lack the ability to understand the nature and object of the proceedings, comprehend their own situation in reference to the proceedings, and/or assist in their defense in a rational or reasonable manner. G.S. 7B-2401(a). If the court finds that the juvenile lacks one or more of these abilities, the court should indicate which of the abilities are lacking by checking the relevant box(es) on the form.

If the juvenile is unable to do one or more of those things, the juvenile can only be found incapable of proceeding when the reason for the inability fits within one of the statutory bases of incapacity. The allowable reasons include mental disorder, intellectual disability, neurological disorder, traumatic or acquired brain injury, or developmental immaturity. G.S. 7B-2401(a). These reasons are preprinted in the findings section of the form and the form does not require that the court identify which reason(s) form the basis of the incapacity.

III. Order for remediation services. Under the new law, if the court finds that the juvenile is (i) not capable to proceed, and (ii) substantially likely to attain capacity in the foreseeable future, the court may order the juvenile to participate in remediation services. G.S. 7B-2401.4(b). The second page of the AOC-J-263 is an order for remediation services. The order contains the finding that the juvenile is incapable to proceed and substantially likely to attain capacity in the foreseeable future. Because the court has discretion to order remediation, the form allows the court to select whether or not the juvenile is in need of remediation.

This part of the form also includes space for findings regarding the least restrictive environment for remediations services. The new law contains eight factors that the court must consider in determining the least restrictive environment for remediation (G.S. 7B-2401.4(c)) and requires written findings of fact regarding the least restrictive environment for remediation services (G.S. 7B-2401.4(e)).

Finally, this part of the form contains the statutory timeframes for remediation based on the charges, a space to name the remediation provider, and language that requires a court report on remediation at least every 90 days.

The “Other” Section

There is an “other” section at the end of this form. Courts may want to consider including several details in this section to be clear about what is needed in remediation.

1. Required remediation services. Remediation can include mental health treatment to reduce interfering symptoms and/or specialized psychoeducational programming. G.S. 7B-2401.1(6). The services are only for the purpose of facilitating the juvenile’s attainment of capacity to proceed. In addition, remediation services are to be based on the recommendations from the forensic evaluation. G.S. 7B-2401.4(b). The form includes that the services are to be based on the recommendation from the forensic evaluation but there is no other place on the form to specifically order whether remediation is to include mental health treatment, psychoeducation, or both. Indicating whether mental health, psychoeducation, or both services are needed might support clarity for the provision of services. In addition, the forensic evaluation may indicate that psychoeducation will not be effective until interfering mental health symptoms are addressed. In this circumstance, the court may want to include that mental health treatment should occur before psychoeducation begins.
2. Name a second remediation provider. If the juvenile needs both mental health treatment and psychoeducation as part of remediation, they will have two remediation providers. The mental health provider will be a clinical person, and the psychoeducation provider will be the entity contracted by DJJ to provide psychoeducation. In this situation the court may want to name the second remediation provider in the “other” section and replicate the reporting requirement for that second provider.
3. Identify the underlying reason for the lack of capacity. It may be useful for the court to name the underlying reason(s) identified in the forensic evaluation as the basis for the lack of capacity in the “other” section. Once remediation is ordered, the case will flow across several entities including potentially DJJ, a clinician, and the psychoeducation provider. A court order that clearly identifies the reason(s) for the incapacity could help maintain clarity across entities about the reason(s) for remediation services.

Finding Qualified Juvenile Forensic Evaluators

The new law required DHHS to establish a credentialing body and standards to qualify court-appointed juvenile forensic evaluators. G.S. 7B-2401.3(a). DHHS established those standards and is operating a credentialing process. The standards can be found here and include that the evaluator

1. be a mental health professional who holds an active and valid license in North Carolina to practice within their field;
2. has demonstrated experience conducting capacity to proceed evaluations (or “competency to stand trial” in other jurisdictions);
3. has demonstrated experience using psychological tools and tests that are developmentally appropriate for juveniles; and
4. has demonstrated knowledge in child and adolescent development, behavioral health needs, and appropriate methods for evaluating juveniles.

A list of DHHS certified juvenile evaluators can be accessed here. At the time of the writing of this blog there are 15 people on the list, and they come from Nash, Mecklenburg, Wake, Durham, Gaston, Alamance, Buncombe, and Pitt counties. Twelve of the qualified experts indicate that they are available to travel outside of their counties.

The statute also deems that qualified professionals who were conducting juvenile forensic evaluations before January 1, 2025, possess the minimum requirements to become an evaluator and gives them 12 months from the adoption of the DHHS standards to satisfy those standards. G.S. 7B-2401.3(b). Therefore, evaluators who were conducting juvenile forensic evaluations before 2025 can continue to be appointed by courts during 2025. Those evaluators will need to be on the DHHS list of certified juvenile forensic evaluators beginning in 2026.

The post New Juvenile Capacity Law: Court Forms and Forensic Evaluators appeared first on North Carolina Criminal Law.

The Public Nature of Arrest Records

Law enforcement records of criminal investigations are generally not public records. G.S. 132-1.4(a). However, some personally identifiable information about a person who is arrested, charged, or indicted is explicitly designated as a public record. G.S. 132-1.4(c). This includes the name, sex, age, address, and employment of the person along with information about the alleged violation of law. Details about the arrest are also designated as a public record under the same statute. This includes the time and place of the arrest; whether resistance, possession or use of weapons, or pursuit were involved in the arrest; and a description of any items seized in connection with the arrest.

The Confidential Nature of Law Enforcement Delinquency Records

One fundamental difference between the law that governs criminal matters and the law that governs juvenile delinquency matters is the privacy that is afforded law enforcement records of juvenile matters. “All law enforcement records and files concerning a juvenile” must be kept separate from adult records and files and withheld from public inspection. G.S. 7B-3001(b). The statute includes a list of people who can examine and make copies of juvenile law enforcement records. Anyone not on that list can only access the juvenile records if the court allows that access through a court order. There is no provision that mirrors the criminal law’s explicit designation of certain arrest information as a public record.

Which Cases are Covered by the Juvenile Code Provisions?

Some have asked if the Juvenile Code provisions apply to the now criminal arrest records of minors. The question revolves around who counts as a juvenile under the language of G.S. 7B-3001(b). According to G.S. 7B-1501(17), a juvenile is “any person who has not reached the person’s eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States.” The Juvenile Code also includes a different definition for a delinquent juvenile. G.S. 7B-1501(7). That definition narrows the broader definition of juvenile to include minors who commit certain offenses at specific ages. Which juveniles are protected under the Juvenile Code provisions that provide confidentiality for law enforcement records and files concerning a juvenile? There are two important pieces of law to consider in answering that question.

1.     The Plain Language of the Juvenile Code

The Juvenile Code confidentiality provision regarding law enforcement records and files concerning juveniles is contained in Article 30 of Chapter 7B of the General Statutes. Article 30 is titled “Juvenile Records and Social Reports of Delinquency and Undisciplined Cases.” The specific statutory provision that provides for the confidentiality of juvenile law enforcement records and files begins with a carveout for cases that are transferred to superior court. G.S. 7B-3001(b). The carveout provides that the Juvenile Code confidentiality protections apply to all law enforcement records and files concerning a juvenile “[u]nless jurisdiction of the juvenile has been transferred to superior court.” Therefore, once a case moves from original juvenile jurisdiction to the criminal jurisdiction of the superior court the law enforcement record confidentiality provisions of the Juvenile Code no longer apply.

Both the title of Article 30 and the carveout for cases transferred to superior court suggest that only juveniles who are subject to juvenile court jurisdiction are included in the Juvenile Code confidentiality provisions related to law enforcement records.

2.     Existing Caselaw Regarding Juvenile Interrogation

There is one case in which provisions of the Juvenile Code were applied to all juveniles, including those who are subject to original criminal jurisdiction. In State v. Fincher, 309 N.C. 1 (1983), The Supreme Court of North Carolina held that the meaning of juvenile for the purpose of the enhanced right to have a parent, guardian, or custodian present during a custodial interrogation applies to all minors who fit within the general Juvenile Code definition of juvenile instead of the narrower definition of juveniles who are subject to delinquency jurisdiction.

The Fincher decision was based on language contained in the Juvenile Code before Chapter 7B was created to separate child welfare and delinquency and undisciplined law into two distinct subchapters. S.L. 1998-202. However, the statutory language analyzed in Fincher remains largely the same in the current provisions of the Juvenile Code. That language included text that introduces the statutory definitions and stated “[u]nless that context clearly requires otherwise, the following words have the listed meanings…” G.S. 7A-517. That same introductory language appears ahead of the current definitions of juvenile and delinquent juvenile in G.S. 7B-1501. The court in Fincher determined that the statutory context for enhanced interrogation protections did not “require, nor even suggest, a different interpretation” other than that the meaning of juvenile for the purposes of the enhanced interrogation rights applies to all people who fit the broader definition of juvenile. Fincher at 11.

As described above, there is context within G.S. 7B-3001(b) to suggest that the legislature did not intend for law enforcement record confidentiality to apply to cases in which people under the age of 18 are being tried as adults. It therefore appears that the reasoning in Fincher would not extend to the meaning of juvenile in the context of juvenile law enforcement record confidentiality.

Practice Prior to Raise the Age

It is also instructive to revisit the practice that was in place before original jurisdiction for these cases was shifted to juvenile jurisdiction in 2019. S.L. 2017-57, §16D.4.(a). Prior to implementation of raise the age, all offenses committed at ages 16 and 17 were under original criminal jurisdiction. Those cases sat in the same original jurisdictional legal space as current Class A – E felonies committed at ages 16 and 17. The Juvenile Code included the same juvenile law enforcement record confidentiality provisions as the current provisions. A quick search of pre-raise the age news shows that the arrest records of minors who fell under original criminal jurisdiction were treated as public records and not as juvenile law enforcement records that fell under G.S. 7B-3001(b). See, e.g. https://www.newsobserver.com/news/local/crime/article139077843.html and https://spectrumlocalnews.com/nc/charlotte/news/2018/04/10/16-year-old-arrested-and-charged-with-murder-in-high-point.

Conclusion

Given the plain language and context of the statute as well as prior practices under the same legal structure, it appears that the juvenile law enforcement record confidentiality provisions do not apply to the arrest records of minors who are arrested for Class A – E felonies at the ages of 16 and 17 and are under criminal jurisdiction. This returns the law and practice to what existed before raise the age.

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Jail Removal and Sight and Sound Separation Requirements Under Federal Law

The federal requirements related to the detention and secure housing of minors awaiting trial and who are treated as adults changed beginning on December 21, 2021. These requirements are contained in 34 U.S.C. § 11133(a)(11)(B) and 34 U.S.C. § 11133(a)(12)(A) in the law known as the Juvenile Justice and Delinquency Prevention Act (JJDPA). They are commonly referred to as the “jail removal” and “sight and sound separation” requirements of the JJDPA.

These provisions now apply to juveniles who are awaiting trial or other legal process and being treated as adults for the purposes of criminal prosecution. This describes juveniles in North Carolina who are charged with Chapter 20 motor vehicle offenses at age 16 and 17 and, beginning with offenses committed on or after December 1, who are charged with Class A – E felony offenses at age 16 and 17. Pursuant to the JJDPA, these juveniles 1) cannot be housed or detained in a jail or lockup for adults and 2) cannot have sight or sound contact with adult inmates.

An adult inmate is defined as a person who has reached age 18 (North Carolina’s age of full criminal responsibility) and has been arrested and is in custody for or awaiting trial on a criminal charge or is convicted of a criminal offense. 34 U.S.C. § 11103(26).

Court-Ordered Exception for Housing in Adult Jail or Lockup or Sight and Sound Separation

The inclusion of juveniles who are awaiting trial under criminal jurisdiction within the jail removal and separation requirements came with a new exception that allows the court to authorize housing of a juvenile who is subject to criminal jurisdiction in an adult jail. This exception can only be authorized through the issuance of a written court order following a hearing. A court can determine that it is in the interest of justice to allow a juvenile who is being prosecuted as an adult to be held in an adult jail or lockup or to have sight or sound contact with adult inmates. 34 U.S.C. § 11133(a)(11)(B). The court must consider the following seven factors in making that determination:

1) the age of the juvenile;

2) the physical and mental maturity of the juvenile;

3) the present mental state of the juvenile, including whether the juvenile presents an imminent risk of harm to the juvenile;

4) the nature and circumstances of the alleged offense;

5) the juvenile’s history of prior delinquent acts;

6) the relative ability of the available adult and juvenile detention facilities to not only meet the specific needs of the juvenile but also to protect the safety of the public as well as other detained youth; and

7) any other relevant factor.

If the court determines that it is in the interest of justice to allow an exception, it must make written findings to that end. Once an exception is ordered the court must hold a hearing at least every 30 days (or at least every 45 days in a “rural jurisdiction”) to review whether it continues to be in the interest of justice to allow the juvenile to be held in the adult jail or lockup or to have sight or sound contact with adult inmates. 34 U.S.C. § 11133(a)(11)(B)(iii). Housing of the juvenile under the exception cannot last more than 180 days unless the court makes written findings that there is good cause for an exception to the 180-day time limit or the juvenile expressly waives the time limit. 34 U.S.C. § 11133(a)(11)(B)(iii).

You can find a “Juveniles Charged as Adults Decisions Tree” published by Office of Juvenile Justice and Delinquency Prevention here. The decision tree illustrates the applicability of the sight and sound separation and jail removal requirements to juveniles charged as adults and how the court-ordered exception can be used.

Other Exceptions to Detention in Adult Jails or Lockups

The JJDPA has long-contained additional exceptions to the prohibition of detaining juveniles in adult jails and lockups. These exceptions now also apply to juveniles being charged under criminal jurisdiction. The commonly applicable exception is the six-hour exception. Under this exception, a juvenile can be detained in an adult jail or lockup for up to six hours 1) for processing or release, 2) while awaiting transfer to a juvenile facility, or 3) to make a court appearance during the six hours. 34 U.S.C. § 11133(a)(13)(A). However, sight and sound contact between the juvenile and any adult inmate is not allowed during the six hours. Additionally, the State must have a policy that people who work with juveniles in any facilities used for both juveniles and adults must be trained and certified to work with juveniles.

The JJDPA also allows juveniles who are awaiting an initial court appearance that will occur within 48 hours after being taken into custody (excluding weekends and legal holidays) to be detained in an adult jail or lockup when that jail or lockup is located 1) outside a metropolitan statistical area and no existing acceptable alternative placement is available, 2) where conditions of distance to be traveled or lack of highway, road, or transportation do no allow for reasonably safe travel so that a brief delay is excusable, or 3) where conditions of safety exist, in which case the time for an appearance may be delayed until 24 hours after the time that the conditions allow for reasonable safe travel.  34 U.S.C. § 11133(a)(13)(B). Like the six-hour exception, sight and sound separation must be maintained while the juvenile is in the adult jail or lockup and the State must have a policy that people who work with juveniles in any facilities used for both juveniles and adults must be trained and certified to work with juveniles.

Impact of Federal Requirements on Processing Minors as Adults

Sight and sound separation and jail removal may be challenging to achieve in the context of magistrate offices that are used for processing arrests and located in the secure part of an adult jail. Sight or sound contact is defined as “any physical, clear visual, or verbal contact that is not brief and inadvertent.” 34 U.S.C. § 11103(25). Therefore, both seeing and hearing an adult inmate is prohibited.

One option may be to use a nonsecure part of the facility for processing juveniles. When asked if an unlocked, multi-purpose area of a law enforcement facility would be subject to the sight and sounds separation requirement, the Office of Juvenile Justice and Delinquency Prevention stated

No. If a juvenile is detained in a non-secure area of a building that is separate from a jail or lockup for adults, this would not result in a core requirement violation. An instance of non-compliance with the separation requirement can occur only when a juvenile is detained within a secure facility such that the juvenile has contact with adult inmates. Frequently Asked Questions: Title II Formula Grants Program, p. 7.

In environments where the arrest of the juvenile must be processed inside a secure facility, time phasing may further compliance with the separation requirement. Time phasing involves setting a schedule that allows for processing of juveniles only at certain times when adult inmates will not be present.

What if none of these solutions are workable in your locality? Violations of these federal requirements are penalized at the State level through reductions in federal funding for juvenile justice and delinquency prevention efforts. Jail removal and separation are two of the JJDPA’s core requirements. Failure to comply with any one core requirement results in a 20 percent reduction to the State’s allocation of federal funds under the JJDPA. 34 U.S.C. § 11133(c). Failure to comply with two core requirements can therefore result in a 40 percent reduction in federal funding.

Place of Confinement for Juveniles

S.L. 2020-83 contained a number of changes to the criminal law to address the place of confinement when a person under the age of 18 would otherwise be held in an adult jail. These changes brought our state laws into compliance with the application of the jail removal requirements described above to juveniles whose cases are subject to original criminal jurisdiction.

The changes included amendment of G.S. 15A-521(a) to state that when a person charged with a crime is committed to a detention facility and is under the age of 18, that person must be committed to a detention facility approved by the North Carolina Division of Juvenile Justice (DJJ). Once that person reaches the age of 18, DJJ is required to transport the person to the custody of the sheriff of the county where the charges arose. Therefore, if a 16- or 17-year-old is not released following their arrest for an offense that is subject to criminal jurisdiction, that person must be held in a juvenile detention facility.

Transporting Minors to Juvenile Detention

There is no statute that assigns responsibility for the initial transport of a 16- or 17-year-old from the magistrate’s office to a juvenile detention facility. There are several statutes that require DJJ to transport juveniles when they are under juvenile jurisdiction and when they are confined in a juvenile detention facility after their case is transferred from juvenile court to superior court for trial as an adult. G.S. 143B-806(20), G.S. 7B-2204(a) – (c). The absence of any such statutory language regarding transportation of a juvenile who is subject to original criminal jurisdiction may suggest that DJJ is not required, or perhaps even authorized, to provide transportation to the juvenile detention facility following arrest.

Enhanced Juvenile Interrogation Rights Continue to Apply to All Minors

There is at least one area of law that is not changing with the shift in law regarding original jurisdiction for some offenses committed at ages 16 and 17. The enhanced right to the presence of a parent, guardian, custodian, or caretaker during a custodial interrogation will remain the same for all youth who are ages 16 and 17. G.S. 7B-2101(a1). This is true regardless of whether their charges are subject to original criminal or juvenile jurisdiction. According to a 1983 decision by the Supreme Court of North Carolina, application of the enhanced custodial interrogation right depends on the age of the person being interrogated and not on whether the matter will be under original criminal or juvenile jurisdiction. State v. Fincher, 309 N.C. 1

Ready, Set, Go

The world of juvenile law is about to change in significant ways. S.L. 2024-17, which will shift all cases in which Class A – E felonies are alleged to have been committed at age 16 and 17 to begin under criminal jurisdiction, takes effect starting with offenses committed on December 1, 2024. You can find a summary of all the provisions in that legislation here. There is a new Juvenile Delinquency Procedure in North Carolina flowchart that reflects the new laws available for purchase here. Additionally, the law of juvenile capacity to proceed is substantially changing beginning with offenses committed on January 1, 2025. You can read more about those changes here and here.

As we head into this week of thanks, I am grateful for you and your work in an ever-changing and complex system. I count myself very lucky to know you and be of service to your work. This is my last blog of 2024. I will be back with you in January of 2025, and I welcome any feedback on how implementation of the new laws is going. You can reach me at greene@sog.unc.edu. I wish you all a joyful holiday season filled with peace.

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