Statutory Rights to Appeal Orders in Delinquency Matters: What, When, Who, and Impact on Juvenile Court

The right to appeal an order in a delinquency matter is established in G.S. 7B-2602 (Right to appeal) and G.S. 7B-2603 (Right to appeal transfer decision). These statutes do not identify every order that is entered in a delinquency action. Instead, there is a right to appeal after entry of specified final orders and any order transferring jurisdiction to superior court for trial as an adult. This post explains when there is a statutory right to appeal an order in a delinquency matter, who has the right to appeal, and restrictions on juvenile court jurisdiction while an appeal is pending.

The Right to Appeal a Final Order

Final orders in delinquency cases are appealable to the court of appeals. G.S. 7B-2602. Final orders are defined by G.S. 7B-2602 as orders that:

(1) find an absence of jurisdiction;

(2) in effect determine the action and prevent a judgment from which appeal might be taken;

(3) are orders of disposition after an adjudication that a juvenile is delinquent or

undisciplined; or

(4) modify custodial rights.

Appellate courts have acknowledged the right to appeal a dispositional order entered after a motion for review on a probation violation (In re E.M., 263 N.C.App. 476 (2019), In re K.N.H., 278 N.C.App. 27 (2021)) and a dispositional order entered following a motion for review and extension of probation supervision (In re H.D.H., 269 N.C.App. 409 (2020)). These orders of disposition, entered after the initial order of disposition in the matter, therefore constitute final orders that invoke the right to appeal.

Appealing the Adjudication Order

An adjudication order must be entered before a dispositional order can be entered. Generally, the adjudication order cannot be appealed before an order of disposition is entered because an adjudication order is not a final order under the statutory language. Matter of Taylor, 57 N.C.App. 213 (1982).

There is one exception to this rule. An appeal of an order may be filed when disposition is not made within 60 days of entry of that order. According to G.S. 7B-2602, there is a right to file written notice of appeal of the order after 60 days have passed without disposition and within 70 days of entry of the order. This timeline is measured from the entry of the order that is being appealed. In re M.L.T.H., 200 N.C. App. 476, 481 (2009) (interpreting G.S. 7B-2602). That means an appeal can be filed on days 61 through 70 after entry of the adjudication order when a disposition has not occurred.

Although this exception applies to any order, the court of appeals has acknowledged its legitimacy specifically in cases in which a dispositional order was not issued within 60 days of entry of the adjudication order and the appeal was timely filed within 70 days of entry of the adjudication order. In re Rikard, 161 N.C.App. 150 (2003),  In re J.F., 237 N.C.App. 218 (2014), In re D.A.H., 277 N.C.App. 16 (2021).

Separate from this exception, appellate courts have routinely allowed and ruled on grounds for appeal of an adjudication order in the context of an appeal that was timely filed following entry of a dispositional order in the case. E.g., In re A.O., 285 N.C.App. 565 (2022)(vacating an adjudication order for failure to advise the juvenile of his privilege against self-incrimination before he testified at his adjudication hearing), In re J.U., 384 N.C. 618 (2023)(holding that the petition met the statutory pleading guidelines and there was no jurisdictional defect), and In re W.M.C.M., 277 N.C.App. 66 (2021)(holding that the colloquy between the court and the juvenile prior to the juvenile’s admission, the adjudication order, and the dispositional order were all sufficient).

Right to Appeal Orders Modifying Custodial Rights

There is no appellate law regarding the right to appeal an order modifying custodial rights in a delinquency case. It is not clear if the statutory language applies to modification of physical or legal custodial rights. The Juvenile Code defines a custodian in the context of a delinquency matter as “[t]he person or agency that has been awarded legal custody of a juvenile by a court.” G.S. 7B-1501(6). This suggests that modification of custodial rights may apply only to legal custody.

At the same time, while the Juvenile Code uses that same definition of custodian in the context of abuse, neglect, and dependency matters (G.S. 7B-101(8)), the right to appeal custody decisions in those cases expressly excludes nonsecure custody orders and is limited to orders that change legal custody of a juvenile. G.S. 7B-1001(a)(4). The absence of similar language limiting the right to appeal orders that modify custodial rights in delinquency matters suggests that the right to appeal in delinquency matters may apply more broadly to any order that modifies physical or legal custody. If that is the intent of the statute, the right to appeal any order modifying physical or legal custody would apply to secure and nonsecure custody orders (which are not otherwise final orders under the statutory language).

Entering Notice of Appeal

Notice of appeal of a final order must be given 1) in open court at the time of the hearing or 2) in writing within 10 days after entry of the order. G.S. 7B-2602. Notice in open court at the time of the dispositional hearing is only timely if the order issued by the court at that hearing is a final order.

Determining whether an order issued at disposition is a final order involves assessing whether the court addressed all the issues and recommendations for disposition at the conclusion of the hearing. The court of appeals examined this issue in In re D.K.L., 201 N.C.App. 443 (2009). In that case, the juvenile court only ruled on the conditions for the juvenile’s release from detention at the dispositional hearing. At the conclusion of the hearing, the juvenile’s attorney provided verbal notice of appeal. Later, a written order of disposition that entered a Level 2 disposition with placement in a wilderness program, restitution, and a term of probation was entered. No notice of appeal of that order was made. The court of appeals held that the order issued at the dispositional hearing was not a final order because it did not address all the matters included in the written order. Because the notice of appeal in open court was made before the court issued a final order, it was not timely, and the appeal was dismissed.

Limited Jurisidction while Appeal Is Pending

The juvenile court loses jurisdiction over the orders in the matter while an appeal is pending. The court regains jurisdiction to modify or alter any such order “[u]pon the affirmation of the order of adjudication or disposition of the court by the Court of Appeals or by the Supreme Court in the event of an appeal.” G.S. 7B-2606.  Therefore, disposition hearings cannot be held while an appeal is pending.  J.F., 237 N.C.App. 218 (applying to dispositional hearing when appeal of adjudication order pending). In addition, changes cannot be made to an order while an appeal of that order is pending. Rikard, 161 N.C.App. 150 (applying to adjudication order when appeal of that order is pending).

While the court cannot enter a disposition or modify existing orders while an appeal is pending, there is a limited ability for the court to enter a temporary order affecting the custody or placement of a juvenile pending resolution of an appeal. Under G.S. 7B-2605, the release of the juvenile, with or without conditions, should generally issue in every case while the appeal is pending. However, if there are compelling reasons that are stated in writing, the juvenile court is allowed to enter a temporary order related to the custody or placement of the juvenile. This kind of temporary order can be entered on a finding that it is in the best interests of the juvenile or the State. The court therefore has the limited ability to issue a temporary custody or placement order while an appeal is pending.

The Right to Appeal a Transfer Order

The Juvenile Code provides authority for one kind of interlocutory appeal. Under G.S. 7B-2603(a), juveniles have a right to appeal any orders transferring jurisdiction of their juvenile matters to the superior court. A juvenile has ten days from entry of the order of transfer in district court to give notice of appeal. If notice is not given within ten days, the case proceeds as a superior court matter. If notice is given, the clerk must place the matter on the superior court docket, and the superior court must review the record of the transfer hearing within a reasonable time.

This interlocutory appeal must be pursued to preserve any issue related to transfer for appeal to the court of appeals following a conviction in criminal court. According to G.S. 7B-2603(d), “[t]he superior court order shall be an interlocutory order, and the issue of transfer may be appealed to the Court of Appeals only after the juvenile has been convicted in superior court.” In State v. Wilson, 151 N.C. App. 219, 226 (2002), the court of appeals held that this means that issues arising from a transfer order must first be appealed to the superior court.

Who Has the Right to Appeal?

The proper parties for appeal are delineated in G.S. 7B-2604. Appeals may be taken by 1) the juvenile, 2) the juvenile’s parent, guardian, or custodian, 3) a county, or 4) the State. The ability of the county and the State to appeal is limited under the statute.

The county may only appeal “orders in which the county has been ordered to pay for medical, surgical, psychiatric, psychological, or other evaluation or treatment of a juvenile pursuant to G.S. 7B‑2502, or other medical, psychiatric, psychological, or other evaluation or treatment of a parent pursuant to G.S. 7B‑2702.” G.S. 7B-2604(c).

The State may only appeal 1) an order finding a state statute to be unconstitutional and 2) an order terminating prosecution of a petition by upholding the defense of double jeopardy, holding that a cause of action is not stated under a statute, or granting a motion to suppress.  G.S. 7B-2604(b).

Other Avenues for Appeal

This post describes when there is a statutory right to appeal an order in a delinquency case. It is possible to appeal when such a statutory right does not exist. Rule 21 of the Rules of Appellate Procedure provides that appellate courts may issue writs of certiorari to allow review of trial court orders when no right of appeal from an interlocutory order exists. Rule 21 also provides that a writ of certiorari may be issued to allow review of a trial court order when the right to appeal has been lost by failure to take timely action. However, whether a petition for writ of certiorari is granted is discretionary with the appellate court and is based on a two-factor test: (1) the petitioner can show merit or that error was probably committed in the trial court and (2) extraordinary circumstances justify the granting of the writ. Cryan v. Nat’l Council of YMCAs of U.S., 384 N.C. 569 (2023).

The court of appeals has exercised its discretion to issue writs of certiorari in delinquency cases. E.g., In re J.V.J., 209 N.C.App. 737 (2011) (certiorari granted when there was no right to appeal an interlocutory order), In re Z.T.W., 238 N.C.App. 365 (2014) (certiorari granted when the right to appeal was lost by failure to take timely action), In re E.A., 267 N.C.App. 396 (2019) (treating an untimely appeal as a petition for writ of certiorari), and In re J.G., 280 N.C.App. 321 (2021) (certiorari granted when notice of appeal not properly given).