Appeal by the juvenile from Clark, Judge. Judgment entered 17 July 1981 in District Court, Surry County. Heard in the Court of Appeals 11 February 1982.
Martin (Robert M.), Judge. Judge Wells concurs. Judge Webb dissents.
The juvenile-appellant first contends that the trial court erred in failing to dismiss the petition for failure of the intake counselor to confer with either the juvenile or her guardian as required by N.C. Gen. Stat. § 7A-532(2). We agree.
At the time of the delinquency hearing for this juvenile, N.C. Gen. Stat. § 7A-532, part of the new Juvenile Code that went into effect 1 January 1980, read as follows:
Upon a finding of legal sufficiency, except in the nondivertible offenses set out in G.S. 7A-531, the intake counselor shall determine whether a complaint should be filed as a petition, the juvenile diverted to a community resource, or the case resolved without further action. He shall consider criteria which shall be provided by the Administrator of Juvenile Services in making his decision. The intake process shall include the following steps:
(1) Interviews with the complainant and the victim if someone other than the complainant;
(2) Interviews with the juvenile, his parent, guardian, or custodian ;
(3) Interviews with persons known to have information about the juvenile or family which information is pertinent to the case.
Interviews required by this section shall be conducted in person unless it is necessary to conduct them by telephone. (Emphasis added.)
Under the Code, certain procedures in screening the petition that were left to the counselor's discretion under the prior Code, became mandatory. The former Code merely instructed the intake counselor to be guided by the "best interests of the juvenile" in gathering evidence and making a decision on whether to file a petition, while the new Code requires the counselor to interview the complainant, the victim, the juvenile, his parents or custodian, and any other person who has information about the case before a petition is issued. Note, Family Law, 58 N.C.L. Rev. 1471 (1980).
In this case, Linda Chaney, the juvenile's intake counselor, testified that she "did not talk to either the juvenile or her grandmother
[the guardian] before issuing the petition" and that she approved the issuance of the petition after talking with Jack Moore, the juvenile's probation officer. Jack Moore testified that he "did not talk to the respondent or her grandmother on June 29, 1981 or on June 30, 1981, the day the petition was issued." Further, the juvenile's testimony was not sufficient to support a finding that Jack Moore interviewed her before the petition was issued. She testified: "I don't think I talked to Jack Moore or Linda Chaney on June 29, 1981 about the charge . . . I talked to Jack Moore on the ...