IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1047
Filed: 16 May 2017
Wayne County, No. 13 JB 96
In the Matter of T.K.
Appeal by Juvenile-Appellant from orders entered 26 May 2016 by Judge Les
Turner in Wayne County District Court. Heard in the Court of Appeals 7 March
2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Gerald
K. Robbins, for the State.
Appellate Defendant Glenn Gerding, by Assistant Appellate Defender Aaron
Thomas Johnson, for Juvenile-Appellant.
INMAN, Judge.
The omissions of a signature by a juvenile court counselor, or other appropriate
representative of the State, and the words “Approved for Filing” in a petition in a
juvenile delinquency case amount to a jurisdictional error that precludes the district
court’s authority to consider the matter contained within the petition.
T.K. (Thomas),1 Juvenile-Appellant, appeals from orders adjudicating him
delinquent and imposing a level 2 disposition placing him on twelve months of
probation and requiring him to perform 30 hours of community service. Thomas
1 A pseudonym is used to protect the identity of the juvenile.
IN RE T.K.
Opinion of the Court
argues that because the petition lacked the requisite signature and “Approved for
Filing” language from the juvenile court counselor, the district court lacked
jurisdiction to hear the matter. After careful consideration, we agree and vacate the
trial court’s orders and dismiss the petition.
Facts and Procedural Background
At the beginning of the school day on Saint Patrick’s Day 2016, before the start
of first period, a behavioral specialist at Goldsboro High School, Tamoris Wooten,
stood watch in the hallway as the students headed to class. Thomas, walking away
from a “ruckus” down the hall, approached Wooten, told him, “I’m going to stand right
here,” and stated “Sir, I’m not trying to get in trouble this morning.” Before Wooten
could ask Thomas any questions about what he meant, a second student, Brad,2
walked up to Thomas, said a few words, and punched Thomas in the face. Thomas
dropped to the floor.
Thomas tried unsuccessfully to climb to his feet while Brad continued
punching him. A crowd of around 25 to 30 students gathered around them. Wooten
called for staff assistance. Thomas “put his arm up to get [Brad] off of him,” and
threw one or two punches. Another male staff member helped Wooten separate the
boys and Wooten walked with Thomas away from the fight.
2 A pseudonym is used to protect the identity of the juvenile.
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IN RE T.K.
Opinion of the Court
As Wooten led Thomas away down the hall to his office, Thomas uttered what
was later described as “profanity.” Wooten instructed Thomas to stop cursing and to
calm down. Thomas stopped cursing by the time they reached Wooten’s office and
Wooten left him in his office to calm down.
On 26 April 2016, Officer Nicki Artis of the Goldsboro Police Department
submitted a complaint with the Clerk of Wayne County Superior Court alleging that
Thomas was delinquent because he committed a simply affray, a Class 2
misdemeanor, in violation of N.C. Gen. Stat. § 14-33(a) at his school on 17 March
2016. On 5 May 2016, a juvenile court counselor signed the complaint and marked it
“Approved for Filing” as a petition. The petition was then filed with the Wayne
County District Court and the matter was scheduled for hearing on 26 May 2016.
On the day of the hearing, Officer Artis signed a second petition related to the
same incident, alleging that Thomas was delinquent because he committed disorderly
conduct at school. This second petition alleged that Thomas had disturbed the
discipline at Goldsboro High School by “arguing loudly in a Goldsboro High School
hallway with another student, [Brad], which ultimately led to a physical altercation
. . . .” This second petition was not signed by a court counselor, nor was it marked as
“Approved for Filing,” but it was nevertheless filed with the district court.
During the hearing, the State dismissed the simply affray charge and
proceeded only on the disorderly conduct petition. The trial court adjudicated
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IN RE T.K.
Opinion of the Court
Thomas delinquent for disorderly conduct, imposed a Level 2 disposition, ordered
Thomas to be placed on a 12 month probation, and ordered him to perform 30 hours
of community service.
Thomas timely appealed.
Analysis
Before a court can address any matter on the merits, it must have jurisdiction.
Thomas asserts that the trial court lacked subject matter jurisdiction to consider the
second petition filed against him because the juvenile court counselor failed to sign
the petition and mark whether the petition was “Approved for Filing” as required by
N.C. Gen. Stat. § 7B-1703. We agree.
“A universal principle as old as the law is that the proceedings of a court
without jurisdiction of the subject matter are a nullity.” Burgess v. Gibbs, 262 N.C.
462, 465,
137 S.E.2d 806, 808 (1964) (citation omitted). “Subject matter jurisdiction
is the indispensable foundation upon which valid judicial decisions rest, and in its
absence a court has no power to act[.]” In re T.R.P.,
360 N.C. 588, 590,
636 S.E.2d
787, 790 (2006) (citations omitted).
“Our General Assembly ‘within constitutional limitations, can fix and
circumscribe the jurisdiction of the courts of this State.’ ” Id. (quoting Bullington v.
Angel,
220 N.C. 18, 20,
16 S.E.2d 411, 412 (1941)). “Where jurisdiction is statutory
and the Legislature requires the Court to exercise its jurisdiction in a certain manner,
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IN RE T.K.
Opinion of the Court
to follow a certain procedure, or otherwise subjects the Court to certain limitations,
an act of the Court beyond these limits is in excess of its jurisdiction.” Eudy v. Eudy,
288 N.C. 71, 75,
215 S.E.2d 782, 785 (1975), overruled on other grounds by Quick v.
Quick,
305 N.C. 446,
290 S.E.2d 653 (1982). “[W]here it is required by statute that
[a] petition be signed and verified, these essential requisites must be complied with
before the petition can be used for legal purposes.” In re Green,
67 N.C. App. 501,
503,
313 S.E.2d 193, 194-95 (1984) (citation omitted).
The General Assembly, by enacting the Juvenile Code, imposed specific
requirements that must be satisfied before a district court obtains jurisdiction in
juvenile cases. For a petition alleging a juvenile delinquent, the Juvenile Code states
that
[e]xcept as provided in [N.C. Gen. Stat. §] 7B-1706, if the
juvenile court counselor determines that a complaint
should be filed as a petition, the counselor shall file the
petition as soon as practicable, but in any event within 15
days after the complaint is received, with an extension for
a maximum of 15 additional days at the discretion of the
chief court counselor. The juvenile court counselor shall
assist the complainant when necessary with the
preparation and filing of the petition, shall include on it the
date and the words “Approved for Filing”, shall sign it, and
shall transmit it to the clerk of superior court.
N.C. Gen. Stat. § 7B-1703 (2015) (emphasis added). This Court has stated that “[w]e
cannot overemphasize the importance of the intake counselor’s evaluation in cases
involving juveniles alleged to be delinquent or undisciplined.” In re Register, 84 N.C.
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IN RE T.K.
Opinion of the Court
App. 336, 346, 352 S.E.2d 889, 894-95 (1987). The role of the counselor is “to ensure
that the needs and limitations of the juveniles and the concern for the protection of
public safety have been objectively balanced before a juvenile petition is filed
initiating court action.” Id. at 346,
352 S.E.2d at 895. Our courts have not previously
addressed whether the signature and the “Approved for Filing” designation on a
juvenile petition are prerequisites to the district court’s jurisdiction.
In In re D.S., 364 N.C. 184, 194,
694 S.E.2d 758, 764 (2010), the North Carolina
Supreme Court held that the Legislature did not intend the time deadlines imposed
by N.C. Gen. Stat. § 7B-1703 to “function as [a] prerequisite[] for district court
jurisdiction over allegedly delinquent juveniles.” The Court looked to the
Legislature’s intent in imposing the deadline at issue in that case. Id. at 192,
694
S.E.2d at 763. The Court further noted that its decision was “consistent with the
conclusions reached in prior North Carolina appellate decisions that have addressed
Chapter 7B timeline requirements and jurisdiction, particularly in the context of
abuse, neglect, and dependency and termination of parental rights.”
Id. at 194,
694
S.E.2d at 764 (citations omitted). In re D.S. does not address whether the statute’s
requirements for signature and approval for filing by a juvenile court counselor or
other appropriate representative of the State are prerequisites to district court
jurisdiction.
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IN RE T.K.
Opinion of the Court
In the absence of precedent on the precise issue before us, we turn to analogous
case authority for guidance. In a case involving a petition to adjudicate a juvenile as
abused or neglected, this Court held that “the failure of the petitioner to sign and
verify the petition before an official authorized to administer oaths rendered the
petition fatally deficient and inoperative to invoke the jurisdiction of the court over
the subject matter.” In re Green, 67 N.C. App. 504,
313 S.E.2d at 195 (vacating the
trial court’s denial of a motion to dismiss because “the trial court lacked jurisdiction
over the subject matter”). In In re Green, the Juvenile Code required the petition
alleging abuse and neglect to be signed and verified pursuant to N.C. Gen. Stat. § 7A-
544 and N.C. Gen. Stat. § 7A-561(b).3 Id. Because the petition lacked the necessary
signatures and verification, our Court concluded that the trial court necessarily
lacked jurisdiction over the matter. Id.
The State urges us to extend the holding in In re D.S. to recognize failures to
comply with the signature and “Approved for Filing” requirements for a petition
alleging delinquency as non-jurisdictional errors. Such an extension would conflict
with the purpose of the Juvenile Code. Section 7B-1500 articulates the following
purposes and policies underlying the statutes related to delinquent juveniles:
(1) To protect the public from acts of delinquency.
(2) To deter delinquency and crime, including patterns of
repeat offending:
3 The relevant sections of N.C. Gen. Stat. § 7A have been re-codified under N.C. Gen. Stat. §
7B and are sufficiently similar for our purposes.
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IN RE T.K.
Opinion of the Court
a. By providing swift, effective dispositions that
emphasize the juvenile offender’s accountability for
the juvenile’s actions; and
b. By providing appropriate rehabilitative services
to juveniles and their families.
(3) To provide an effective system of intake services for the
screening and evaluation of complaints and, in appropriate
cases, where court intervention is not necessary to ensure
public safety, to refer juveniles to community-based
resources.
(4) To provide uniform procedures that assure fairness and
equity; that protect the constitutional rights of juveniles,
parents, and victims; and that encourage the court and
others involved with juvenile offenders to proceed with all
possible speed in making and implementing
determinations required by this Subchapter.
N.C. Gen. Stat. § 7B-1500 (2015) (emphasis added). The juvenile court counselor’s
role in signing and approving a petition for delinquency is the only indication on the
face of a petition that a complaint against a juvenile has been screened and evaluated
by an appropriate authority. Not unlike the signature of a Grand Jury foreperson
with the indication “true bill” on an indictment sought by a prosecutor, the juvenile
court counselor’s signature and approval for filing on a petition reflects that the
complaint has not simply been asserted, but that it has satisfied the first test of
validity in the court system.
Consistent with our precedent in In re Green, the Supreme Court’s precedent
in In re D.S., and the Legislature’s intent in drafting the Juvenile Code, we conclude
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IN RE T.K.
Opinion of the Court
that a petition alleging delinquency that does not include the signature of a juvenile
court counselor, or other appropriate representative of the State,4 and the language
“Approved for Filing,” the petition fails to invoke the trial court’s jurisdiction in the
subject matter.
Here, the petition alleging Thomas delinquent for disorderly conduct at school
failed to include a signature from the juvenile court counselor and does not indicate
whether or not it was “Approved for Filing.” The trial court therefore was without
jurisdiction to proceed on the merits of this petition. Because we conclude that the
trial court lacked subject matter jurisdiction, we deem it unnecessary to discuss
Thomas’s other assignments of error.
VACATED AND DISMISSED.
Judge BRYANT concurs.
Judge STROUD concurs by separate opinion.
4 N.C. Gen. Stat. § 7B-1704 (2015) provides an alternate route for the district court’s
jurisdiction when a juvenile counselor denies approval of filing a petition. In such instances, the
district attorney may approve the filing if the record affirmatively discloses that the juvenile counselor
denied the approval. See In re Register, 84 N.C. App. at 343-44,
352 S.E.2d at 893. Our ruling today
does not address and should not interfere with the appeal process delineated in N.C. Gen. Stat. §§ 7B-
1704 or 7B-1705.
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No. COA16-1047 – In re T.K.
STROUD, Judge, concurring.
I concur in the result reached by the majority, since I tend to agree that the
juvenile court counselor’s signature on the petition may be necessary to invoke
jurisdiction, although I also note that the juvenile court counselor was present and
participating in the hearing. I write separately to concur because I believe that even
if the court had jurisdiction, the adjudication and disposition orders would have to be
reversed. It is unusual for a concurring opinion to address an issue which perhaps
need not be addressed since the adjudication is being vacated. Yet I also recognize
the possibility of further appellate review and feel compelled to note other errors in
this adjudication and disposition.
Mr. Tamoris Wooten, a behavioral specialist at Goldsboro High School testified
that Thomas told him he had prior juvenile court involvement, but on the day of this
incident, was almost done with his probation. No doubt Thomas had been encouraged
during his involvement with juvenile court not to engage with other students who
may cause a “ruckus” and instead to seek assistance from school personnel if
problems occurred. Indeed, when a “ruckus” did occur, Thomas did exactly “the right
thing” -- as the lower court even noted -- by going directly to Mr. Wooten to try to
protect himself and avoid getting into trouble. But then, right in front of Mr. Wooten,
another student punched Thomas in the face and attempted to continue punching
him as he was on the ground.
IN RE T.K.
STROUD, J., concurrence
After another staff member arrived and the boys were separated, Mr. Wooten
began walking with Thomas to the office and “was talking to him to try to find out
what was going on.” Thomas said something Mr. Wooten described as profanity. Mr.
Wooten could not remember any particular words or phrases Thomas used. Mr.
Wooten told Thomas to stop cursing and he did. There is no evidence that anyone
other than Mr. Wooten even heard Thomas, though the hallway they were walking
down did have many other students in it.
Perhaps another student, instead of cursing, would have instead cried; both
are noises which may attract the attention of other students or school personnel.
Since we don’t know what the words were, really, all we know is that he made a noise.
But there is no doubt Thomas’s exclamation -- whatever he said -- was a response to
an attack by another student; it was not something initiated by Thomas with the
intent to “[d]isrupt[], disturb[] or interfere[] with the teaching of students . . . or
disturb[] the peace, order or discipline” of the school, which is a necessary element of
the offense for which he was adjudicated as delinquent. N.C. Gen. Stat. § 14-
288.4(a)(6) (2015).
Once Thomas had calmed down, he told Mr. Wooten that he and the other
student were “in the neighborhood” and had some sort of disagreement a week or so
earlier. On the morning of the incident, the issue “just started to boil back up and
they were having words with each other” in the cafeteria. Thomas then sought out
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IN RE T.K.
STROUD, J., concurrence
Mr. Wooten to avoid any trouble, and later in the office, told Mr. Wooten “he didn’t
want to get in trouble because he was just coming off from being in trouble with
probation and stuff.” Mr. Wooten explained what he was thinking when he was
talking to Thomas, “So I'm saying, okay, here’s a kid that’s maybe trying to make the
right decision. So then at that point, then I left it alone and I stepped out of the room
where he was and left him.”
Though Mr. Wooten had no prior dealings with Thomas and had only been at
this particular school for two days, he also testified about his role as a behavioral
specialist and noted that he tries to teach students to turn to him for help:
I say, you know, ‘Walk away and let an administrator or let
me know, and let us deal with those type of things instead
of you guys trying to fight your battles. That’s why I’m
here, and that’s why the administration is here. But you
guys have got to understand’ -- I say, ‘Stop trying to gain
hallway cred, which means you're trying to establish
credibility with your friends in the hallway. It’s okay to
walk away. That doesn’t make you a coward. That doesn’t
make you, as they say, a punk. That doesn’t make you soft.
It makes you smart. And if you do it this way, then the
outcome could be different for you when we start to do the
investigation on what discipline needs to be given out.’
Thomas did exactly that -- he walked away from the issue in the cafeteria and went
to Mr. Wooten for help.
As noted by the majority, the simple affray petition was dismissed, leaving the
disorderly conduct at school (“disorderly conduct”) petition which was unsigned by
the court counselor. The disorderly conduct petition alleged that Thomas had
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IN RE T.K.
STROUD, J., concurrence
violated North Carolina General Statute § 14-288.4(a)(6) by “arguing loudly in a
Goldsboro High School hallway with another student, [Brad], which ultimately led to
a physical altercation in the Goldsboro High School hallway[.]” We do not know from
the adjudication order exactly what conduct the lower court based the adjudication
upon, because the section of the form which is to include findings of fact for those
facts “proven beyond a reasonable doubt” is entirely blank.
But upon adjudicating Thomas as delinquent, the trial court stated the reasons
for adjudication, and it was based solely upon Thomas’s use of profanity:
You did everything right except one thing, close your
mouth. You walked away. That’s the right thing to do.
You went and found the gentleman. That was absolutely
the right thing to do. This kid that came up and blindsided
you and punched you, that was wrong. Putting up your
arm while you were on the floor, that’s self-defense. It
depends on how many punches you threw back before you
crossed the line of engaging in the fight rather than self-defense, but that issue is not before me.
The main reason I adjudicated you is because you
were engaging in the verbal aspect coming down the hall,
and then after you were punched with the profanity.
You’ve just got to be a bigger man. I know. I understand
anger. I understand you might want to let it rip with
profanity. You don’t want anybody talking junk to you.
The gentleman said a little pride might have been involved.
You did everything right except refrain from talking, the
running of the mouth and then the cussing.
Ultimately Thomas was adjudicated under North Carolina General Statute § 14-
288.4(a)(6) which provides:
(a) Disorderly conduct is a public disturbance
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IN RE T.K.
STROUD, J., concurrence
intentionally caused by any person who . . .
....
(6) [d]isrupts, disturbs or interferes with
the teaching of students at any public
or private educational institution or
engages in conduct which disturbs
the peace, order or discipline at any
public or private educational
institution or on the grounds adjacent
thereto.
N.C. Gen. Stat. § 14-288.4(a)(6).
Although the petition cites only conduct prior to the “physical altercation” --
“arguing loudly in a . . . hallway” -- the lower court seemingly adjudicated Thomas
based only on conduct which occurred after the altercation, his “cussing,” because
there was no evidence Thomas used “profanity” or engaged in “cussing” before the
physical altercation as the petition alleged. Thus, even assuming that after the
altercation Thomas “cussed” loudly where many students could hear, there was also
simply no evidence that by his cursing he intentionally sought to “disrupt[], disturb[],
or interfere[] with the teaching of students” or that he intentionally “disturb[ed] the
peace, order or discipline” of the school. Mr. Wooten was the only witness for the
State and nothing in his testimony indicates Thomas used profanity or cursed for any
reason other than the fact that he had just been punched in the face. Indeed, Mr.
Wooten testified that Thomas was likely “cursing and making noise” due in part to
adrenaline -- an adrenaline rush most people would likely experience if suddenly
punched in the face.
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IN RE T.K.
STROUD, J., concurrence
Several cases which have addressed disorderly conduct in a school demonstrate
the necessity of the evidence of intentional disruption of the educational process in
the school. See generally State v. Wiggins, 272 N.C. 147,
158 S.E.2d 37 (1967); State
v. Midgett,
8 N.C. App. 230,
174 S.E.2d 124 (1970); In re M.J.G.,
234 N.C. App. 350,
759 S.E.2d 361 (2014). In State v. Wiggins, our Supreme Court considered convictions
arising from a group picketing and marching in front of a school during the school
day when classes were in progress.
272 N.C. 147, 155,
158 S.E.2d 37, 43 (1967). The
evidence showed that the picketing substantially interrupted the school’s operations:
The marchers carried placards or signs. These signs were
utterly meaningless except on the assumption that they
related to some controversy between the defendants and
the administration of the school, specifically Principal
Singleton. Presumably, they were deemed by the
defendants sufficient to convey some idea to students or
teachers in the school. The site was the edge of a rural road
running in front of the school grounds, with only two
residences in the vicinity. There is nothing to indicate that
the marchers intended or desired to communicate any idea
whatsoever to travelers along the highway, or to any
person other than students and teachers in the
Southwestern High School. As a direct result of their
activities, the work of the class in bricklaying was
terminated because the teacher could not retain the
attention of his students, and disorder was created in the
classrooms and hallways of the school building itself.
Id.
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IN RE T.K.
STROUD, J., concurrence
The defendants in Wiggins argued that the statute under which they were
convicted was too vague and indefinite to be enforced. See id. at 153,
158 S.E.2d at
42. The Court rejected this argument and noted that the statute was clear:
When the words ‘interrupt’ and ‘disturb’ are used in
conjunction with the word ‘school,’ they mean to a person
of ordinary intelligence a substantial interference with,
disruption of and confusion of the operation of the school in
its program of instruction and training of students there
enrolled. We found no difficulty in applying this statute, in
accordance with this construction, to the activities of a
group of white defendants in State v. Guthrie, 265 N.C. 659,
144 S.E.2d 891. Obviously, the statute applies in the same
manner regardless of the race of the defendant. In State v.
Ramsay, 78 N.C. 448, in affirming a conviction for the
similar offense of disturbing public worship, this Court,
speaking through Smith, C.J., said:
‘It is not open to dispute whether the
acts of the defendant were a disturbance in
the sense that subjects him to a criminal
prosecution, and that the jury was warranted
in so finding, when they had the admitted
effect of breaking up the congregation and
frustrating altogether the purposes for which
it had convened.’
Giving the words of G.S. 14—273 their plain and
ordinary meaning, it is apparent that the elements of the
offense punishable under this statute are: (1) Some act or
course of conduct by the defendant, within or without the
school; (2) an actual, material interference with,
frustration of or confusion in, part or all of the program of
a public or private school for the instruction or training of
students enrolled therein and in attendance thereon,
resulting from such act or conduct; and (3) the purpose or
intent on the part of the defendant that his act or conduct
have that effect.
Id. at 154, 158 S.E.2d at 42-43.
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IN RE T.K.
STROUD, J., concurrence
Another case that illustrates an intentional interruption of a school is State v.
Midgett, wherein the defendants
entered the office of the secretary while the principal, Mr.
Simmons, was away from the school; the secretary knew or
recognized most of the boys who were there; they informed
her that ‘they were going to interrupt us that day’ and she
could either leave or stay in the room, but that she could
not pass in and out as she normally did; and that if she
stayed she could make such telephone calls as she wished.
The secretary telephoned Mr. Simmons and then went to
get Mr. Hunter, who normally was in charge in Mr.
Simmons’ absence. While she was gone, her room was
locked, and she was not permitted to return to her office.
According to the testimony, filing cabinets and tables were
moved against the doors and interior windows to further
bar entry.
Daniel Williams testified that he was teaching a
class across the hall from the office at the time of the
incident He stated that he left that class to investigate the
incident at the office and did not resume teaching that day.
Principal Simmons testified that when he returned
to the school a little before 12 noon, he found that the office
doors were locked and the bell system was being actuated
manually from within the office. He determined that the
‘presence of persons who were not enrolled’ and
‘commotion’ necessitated the dismissal of school, and
therefore he ordered the children walked to the buses and
sent them home a little after noon and prior to the usual
closing.
8 N.C. App. at 231,
174 S.E.2d at 126. This Court determined that this evidence
showed a substantial interference with the school.
Id. at 233-34,
174 S.E.2d at 127-
28.
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IN RE T.K.
STROUD, J., concurrence
Here, the State has two deficiencies in its evidence: both the intention to
disturb and an actual disturbance. See N.C. Gen. Stat. § 14-288.4(a)(6). First, there
is no evidence that Thomas’s behavior – “cussing” – was intended to disturb school as
his brief “cussing” was a response to being attacked. See
id. Thomas stopped
“cussing” when Mr. Wooten told him to; if his intent was to disrupt the school he
likely would have gone on “cussing.” Thomas was the victim here, and thus this case
stands in stark contrast to In re M.J.G., where a student cursed at teachers and the
disposition against him was affirmed. Contrast In re M.J.G.,
234 N.C. App. at 351-
52,
759 S.E.2d at 362-63 (“The juvenile began shouting, ‘I’m tired of this f’ing school,
these teachers lying on me, they’re always lying on me.’ The juvenile put his finger
less than an inch away from Long’s face, ‘postured up chest to chest’ and said
‘[e]specially you you mother-f***ing b****[.]’ Thereafter, the juvenile backed Ms.
Potts against a wall and ‘did the exact same thing to her.’”).
Second, there was no evidence of disruption or interruption of the school by
Thomas’s cursing. Thomas was accompanied by Mr. Wooten, the behavioral
specialist, to the office. Thomas did not take Mr. Wooten away from his work duties;
helping Thomas was Mr. Wooten’s work duty. There was no evidence of involvement
by any teachers, other than the one who helped to pull Thomas’s attacker off of him
and the principal who dispersed students who wanted to see the “fight” Brad started
when he attacked Thomas. Mr. Wooten testified that the incident occurred “as the
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IN RE T.K.
STROUD, J., concurrence
bell rung for them to begin to go to first period” so it appears that classes had not
even begun yet which is why so many students were still in the hallway. Thus, at
best for the State, some students or others in the school may have heard Thomas
cursing in the hall, but there is no evidence of interruption of any class or school
activity. In this regard, this case is similar to In re Eller, in which our Supreme Court
determined there was no evidence of disorderly conduct at school when the juvenile
made an aggressive move toward another student and later banged on a radiator in
the classroom:
Greer ma[d]e a move toward another student, who was
separated by an aisle, causing the other student to dodge
Greer’s move. Ms. Weant finished relating the assignment,
then approached Greer and asked Greer to show her what
was in Greer’s hand. Greer thereupon “willingly” and
without delay gave Ms. Weant a carpenter’s nail. The other
students observed the discussion and resumed their work
when so requested by Ms. Weant[, and on a later date,]
. . . Greer and Eller were seated at the rear of the
classroom with their peers in a single, horizontal row
parallel to the rear wall situated near a radiator located on
the wall. During the course of their instruction time, Greer
and Eller “more than two or three times” struck the metal
shroud of the radiator. Ms. Weant testified that she saw
each child strike the radiator at least once. Each time
contact was made, a rattling, metallic noise was produced
that caused the other students to look “toward where the
sound was coming from” and caused Ms. Weant to
interrupt her lecture for fifteen to twenty seconds each
time the noise was made. Ms. Weant did not intervene
other than to silently stare at Greer and Eller for fifteen to
twenty seconds and then resume her teaching. She did,
however, report the incident to the school principal that
afternoon or the following day.
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IN RE T.K.
STROUD, J., concurrence
331 N.C. 714, 715-16,
417 S.E.2d 479, 480–81 (1992).
The Supreme Court determined that this evidence did not support a finding of
disruption of the school:
Respondents’ behavior in the instant case pales in
comparison to that encountered in Wiggins and Midgett,
and those cases are readily distinguishable on their facts.
Here, even the small classes in which respondents
perpetrated their disruptive behavior were not interrupted
for any appreciable length of time or in any significant way,
and the students’ actions merited only relatively mild
intervention by their teacher. We agree with respondents
that while egregious behavior such as that condemned in
Wiggins and Midgett is not required to violate N.C.G.S. §
14–288.4(a)(6), more than that present in the case at bar is
necessary.
Id. at 719, 417 S.E.2d at 482–83.
Thomas’s behavior here “pales in comparison to that encountered in Wiggins
and Midgett” and even Eller. Id. at 715-16, 417 S.E.2d at 480-81. There is no evidence
that Thomas’s cursing in the hall caused any disruption. Thus, even assuming the
petition had been signed invoking jurisdiction, the adjudication and disposition
orders would necessarily need to be reversed. Furthermore, as to the disposition
order specifically, even the State concedes that the disposition order is in error since
it has no findings whatsoever to support the disposition.
For the reasons noted above, I concur with the majority opinion vacating the
adjudication and disposition orders for lack of subject matter jurisdiction, but even
11
IN RE T.K.
STROUD, J., concurrence
assuming the lower court had jurisdiction to hear this case, I would reverse since
there was no evidence Thomas violated North Carolina General Statute § 14-
288.4(a)(6).
12
