188 S.E.2d 731 | N.C. Ct. App. | 1972
In the Matter of Valerie Lenise WALKER.
Court of Appeals of North Carolina.
*733 Atty. Gen. Robert Morgan by Asst. Atty. Gen. R. S. Weathers for the State.
Public Defender, Eighteenth Judicial District, Wallace C. Harrelson and Assistant Public Defender, Eighteenth Judicial District, J. Dale Shepherd, for the respondent appellant.
CAMPBELL, Judge.
The respondent assigns as error the denial of the motion to vacate the order entered 19 August 1971, in which Valerie was found to be an undisciplined child and placing her on probation, for that at said hearing she was not represented by counsel. In order to comply with due process in a juvenile proceeding, the right of the juvenile to be represented by an attorney must be considered and an attorney provided or there must be a proper waiver of this right. In re Garcia, 9 N.C.App. 691, 177 S.E.2d 461 (1970).
While the order of 19 August 1971 was defective, as based on a hearing where there was a failure to afford Valerie due process in that no attorney represented her or the right to such representation properly waived, nevertheless, the hearing at the October 1971 Session of the court was not *734 improper. A plenary hearing was held and evidence was offered to sustain findings of fact independent of the 19 August 1971 order.
At the October 1971 hearing Valerie was represented by counsel, and due process of law was afforded her.
Respondent further contends that this proceeding should have been dismissed for that G.S. § 7A-278 is unconstitutional particularly subsection (5) thereof.
G.S. § 7A-278(5) provides:
"`Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home."
Respondent cites no authority for the position taken. There is nothing vague or indefinite about the statute. It is quite similar in its provisions and purposes to the previous statute pertaining to juveniles. The previous statute was held to be constitutional and nothing would be gained by a repetition of what was said about the constitutionality of the juvenile act in the case of In Re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647.
We have considered the other assignments of error brought forward by the respondent and find them to be without merit.
We find that the respondent in the instant case had a fair hearing in October 1971, which fully met with due process of law, and the order entered by Judge Gentry was fully sustained by the evidence introduced and the facts found thereon.
No error.
MALLARD, C. J., and BROCK, J., concur.
