District Court Judges Summer Conference

Atlantic Beach, NC

June 17, 2004

JUVENILE LAW UPDATE

Cases Decided from October 2003 through June 1, 2004

Janet Mason

Institute of Government

The University of North Carolina at Chapel Hill

(919) 966-4246

CHILD PROTECTION ISSUES

1.The Effect of Appeals on Trial Court Proceedings

Appeal of adjudication/disposition moot when parents’ rights are terminated

In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (8/5/03), appeal dismissed, review denied, 357 N.C. 506, 588 S.E.2d 472 (10/1/03).

Respondent/father appealed from an order adjudicating children to be neglected and dependent. While the appeal was pending, DSS petitioned for termination of the parents’ rights in a separate proceeding. In that case, the trial court found that the parents had neglected the children, but neither the petitioner nor the court relied in any way on the prior neglect adjudication that was on appeal. The trial court also found as a ground for termination that the parents had willfully left the children in foster care for more than a year without making reasonable progress under the circumstances.

The court of appeals took judicial notice of the order terminating the parents’ rights and dismissed the appeal of the previous order adjudicating neglect on the basis that it was moot.

Appeal dismissed.

Court may not enter termination order during appeal of a permanency planning order

In re Hopkins, ___ N.C. App. ___, 592 S.E.2d 22 (2/17/04).

Facts: The trial court at a permanency planning hearing changed the plan for respondents’ child from reunification to adoption. The father, but not the mother, appealed from that order. While the appeal was pending, DSS filed a petition to terminate respondents’ rights and the court granted the petition. The parents appealed from the orders terminating their rights.

Father’s appeal of termination order.The court of appeals did not address any of the issues raised by the father on appeal. Based on the record, the court took judicial notice of the pending appeal of the permanency planning order and concluded that the trial court lacked jurisdiction to act in the termination proceeding while that appeal was pending. The court relied on the language in G.S. 7B-1003, which states that during an appeal from a final order, the trial court may enter temporary orders affecting the child’s custody. The court therefore vacated the part of the order that terminated the father’s rights. [The court stated that this did not affect the mother because she had not appealed the permanency planning order.]

Appeal of adjudication/disposition moot when parents’ rights are terminated

In re N.B., ___ N.C. App. ___, 592 S.E.2d 597 (3/2/04) (appeal docketed in supreme court).

Facts: Parents appealed an order adjudicating the child to be abused, neglected, and dependent and the disposition order giving DSS custody and denying reunification services and visits. While the appeal was pending, DSS filed a petition for termination of parental rights and the trial court entered an order terminating both parents’ rights. The trial court in the termination proceeding noted that it did not rely on the order that was on appeal in finding grounds for termination and also found two additional grounds.

Issue: Was the appeal from the adjudication and disposition orders moot?

Held: Yes. The majority dismissed the appeal, finding that it was bound by the decision in Stratton, above, which held that “a pending appeal of an adjudication of abuse and neglect is made moot by a subsequent termination of parental rights based on independent grounds.”

Dissent: One judge dissented on the basis that the trial court lacked subject matter jurisdiction to hear the termination case. Because DSS was authorized to file the termination petition only because it had legal custody of the juvenile, the judge said, the appeal of the very order giving DSS custody divested DSS of authority to file the petition and divested the trial court of subject matter jurisdiction.

Permanency planning order; jurisdiction of trial court during appeal

In re J.C.S. and R.D.S., ___ N.C. App. ___, 595 S.E.2d 155 (5/4/04).

Facts: The children were placed in DSS custody in 1999. At a permanency planning hearing in December 2003, the court ordered that the plan be changed to adoption. Respondent appealed, and while the appeal was pending, the trial court entered an order terminating respondent’s rights. The court of appeals, in the appeal from the permanency planning order, took judicial notice of the entry of the termination order.

Issue: Should the court of appeals grant DSS’s motion to dismiss the appeal of the permanency planning order because the subsequent entry of the termination order rendered it moot under Stratton and N.B.?

Held: No. The court of appeals held that the trial court exceeded its authority. Under G.S. 7B-1003, during the pendency of an appeal in a case, the trial court’s authority is limited to entering temporary orders affecting the custody or placement of a child. The court of appeals held that the trial court may not “properly exercise its jurisdiction and enter a subsequent order terminating parental rights during the pendency of an appeal, by the parent whose rights have purportedly been terminated by the subsequent TPR order, from an earlier order in the same case.” The court stated that it was not bound by the holdings in Stratton and N.B. because they had not decided the same issue – those cases, the court said, addressed whether the respondent had received a sufficiently independent adjudication of the issues, not whether the trial court had jurisdiction.

Trial court jurisdiction while delinquency case is on appeal

In re Rikard, 161 N.C. App. 150, 587 S.E.2d 467 (11/4/03).

At a hearing on a delinquency petition on 8/6/01 the court orally found beyond a reasonable doubt that the acts alleged in the petition were true and ordered the case transferred to the county of the juvenile’s residence for disposition. The adjudication order that was filed on 8/10/01, however, did not contain the finding that the state had proved its case beyond a reasonable doubt or findings that the allegations in the petition were true. On 10/10/01 the juvenile gave notice of appeal. On 11/16/01, the court in the county to which the case was sent for disposition sent the case back to the first county because the adjudication order did not contain findings of a delinquent act. The court in the original county, on 12/11/01, entered an amended adjudication order and transferred the case back to the second county for disposition. A disposition order was entered on 1/25/02.

On appeal the juvenile argued that the two trial courts lacked jurisdiction to transfer the case back to the first county, amend the adjudication order, transfer the case back to the second county, conduct a disposition hearing, and order a disposition. The court of appeals agreed, holding that all orders entered after the 8/10/01 adjudication order were entered without jurisdiction and must be vacated. The court reversed the adjudication order and remanded it for correction of the written order to include the required findings, which the court had stated orally.

2.Jurisdiction Issues

Subject matter jurisdiction; UCCJEA

In re J.B., ___ N.C. App. ___, ___ S.E.2d ___ (5/18/04).

Facts: On 5/7/01DSS filed a petition alleging that J.B. was neglected and dependent, and obtained a nonsecure custody order. On 5/12/01 respondent and J.B. were located in S.C., respondent was served, and J.B. was taken into custody by DSS and brought back to N.C. Respondent claimed that she and the child had moved to S.C. on 5/4/01. The child was adjudicated neglected and dependent and remained in DSS custody. A number of review and permanency planning hearings were held, and in July 2002 the court relieved DSS of the duty to make reunification efforts. In each order the court found that the court had jurisdiction over the subject matter and the parties. Respondent raised six issues on appeal, but the court of appeals considered only one.

Issue: Did the trial court have subject matter jurisdiction in this case?

Held: Neither the findings of fact nor evidence in the record established a factual basis for concluding pursuant to G.S. Chapter 50A that the trial court had subject matter jurisdiction.

  • An issue of lack of subject matter jurisdiction can be raised at any time.
  • The date for determining a child’s “home state” is the date the proceeding is initiated, not the date of the court’s order.
  • A determination of subject matter jurisdiction is a conclusion of law, not a finding of fact.
  • A court assuming jurisdiction over a child custody matter [including juvenile proceedings] must make specific findings of fact, based on competent evidence in the record, to support that action.

Vacated and remanded for specific findings of fact relating to jurisdiction.

Subject matter jurisdiction; standing

In re Miller, ___ N.C. App. ___, 590 S.E.2d 864 (1/20/04).

The child was adjudicated neglected and dependent and placed in DSS custody. After a permanency planning hearing the court placed the child in the custody of the couple with whom he lived and relieved the guardian ad litem of duties in the case. Soon thereafter DSS filed a petition to terminate the mother’s rights, alleging abandonment and neglect. The trial court found that grounds existed and entered an order terminating respondent’s rights.

On appeal respondent argued that DSS lacked standing to file the termination petition. The court of appeals agreed, based on G.S. 7B-1103(a), which sets out who may file a petition or motion to terminate parental rights, and vacated the termination order. The court held that the trial court lacked subject matter jurisdiction, which requires that the plaintiff or petitioner have standing.

Personal jurisdiction; service of process

In re Howell, ___ N.C. App. ___, 589 S.E.2d 157 (12/16/03).

In a proceeding to terminate parental rights, the petition and summons were not served on respondent; however, she filed an answer and appeared at the hearing.

Issue: Did the trial court lack jurisdiction over respondent because no summons was issued and she was not served with the petition?

Held: No. Respondent waived these arguments, which she made for the first time on appeal. When she made a general appearance, agreed in court that service had been proper, and filed an answer without raising them, she waived defenses of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. G.S. 1A-1, Rule 12.

3.Guardian ad Litem and Attorney for Parent

Guardian ad litem for parent

In re. H.W., ___ N.C. App. ___, 594 S.E.2d 211 (4/6/04).

Facts: Children were adjudicated abused and neglected and placed in the custody of DSS. Findings related to domestic violence; father’s inappropriate discipline; father’s continued denial of responsibility for an earlier felony child abuse conviction; an evaluation showing the children were physically and emotionally abused; parents’ lack of insight, motivation, and ability to work with professionals to improve conditions and behavior; and mother’s cognitive limitations and inability to protect the children or be honest with professionals about what was going on at home. The court appointed a guardian ad litem for the mother about six weeks after the petition was filed, but before the adjudication hearing. The court established a concurrent plan of reunification with the parents and guardianship with a relative. At a review hearing the court found that the parents’ willfully failed to obey earlier court orders regarding evaluations, the children’s conditions improved after visitation was ceased, and that, and that reunification efforts were inconsistent with the juveniles’ health, safety, and need for a permanent home. The court ordered no further reunification efforts; changed the plan to a concurrent plan of guardianship with a relative or termination of parental rights and adoption; and calendared the case for a permanency planning hearing. Respondents appealed from that order.

Issues and holdings:

1.Did the court err in failing to make a timely appointment of a guardian ad litem for the mother?

  • No. The court held that, assuming appointment of a guardian ad litem for the mother was required, there was no showing that the mother was prejudiced by the delay in the appointment. Reversal would be required only if the appointment was so untimely that it resulted in prejudice to the person’s case.

2.Did the court err in failing to appoint a guardian ad litem for the father?

  • No. Although the petition alleged that the children were dependent, it did not allege that they were dependent as a result of substance abuse, mental retardation, mental illness, organic brain syndrome, or a similar cause or condition. The statute does not require appointment of a guardian ad litem for a parent every time dependency is alleged or every time substance abuse is alleged. The appointment is required only when the parent’s incapability as a result of substance abuse (or another statutory or similar cause) is alleged.

Affirmed.

Testimony by parent’s guardian ad litem

In re Shepard, ___ N.C. App. ___, 591 S.E.2d 1 (1/20/04).

Facts: In a termination of parental rights proceeding, because the incapacity ground was alleged the trial court appointed a guardian ad litem for respondent. The guardian ad litem visited respondent three times, tried to ensure that she understood the significance of the action and her conduct, and worked with respondent’s attorney. At trial DSS called the guardian ad litem to testify about her activities in relation to respondent and the fact that respondent did not believe she had any problems. Respondent appealed from the order terminating her rights.

Issue: Did the trial court’s allowing her guardian ad litem to testify against her interest effectively deprive respondent of her right to a guardian ad litem?

Held: No. The court of appeals reviewed the scant guidance that G.S. 1A-1, Rule 17, and case law provide regarding the proper role of a guardian ad litem appointed for a parent in this kind of case. The court found that the role is “as a guardian of procedural due process for that parent, to assist in explaining and executing her rights.” The court held that no testimonial privilege applied to prevent the guardian ad litem from testifying and that testimony of the guardian ad litem was admissible and could be used to establish a ground for termination. The court relied in part on In re Farmer, 60 N.C. App. 421, 299 S.E.2d 262, disc. review denied, 308 N.C. 191, 302 S.E.2d 243 (1983) (in an incompetency proceeding, no authority bars a guardian ad litem from testifying as to the competency of his or her ward). The court affirmed the termination order.

Effect of alleging dependency ground

In re J.D., ___ N.C. App. ___, ___ S.E.2d ___ (5/4/04). (Supersedes and replaces opinion filed 12/2/03 in In re Dhermy).

Facts: The family had a long history with DSS, including respondent’s allegations that her 14-year-old son sexually abused her four-year-old daughter (“the child”) and her failure to protect the child from the older brother. In January 2001 the child was adjudicated neglected and abused and placed in DSS custody. In April 2001 the court found that the mother had threatened to take the child and move to Canada, that she continued to deny any responsibility, and that there was a continued risk of neglect if the child were returned home. In August 2001 DSS filed a petition to terminate parental rights on the grounds of neglect and dependency. No guardian ad litem was appointed for respondent. Petitioner stated at the hearing that it would be proceeding on the neglect ground, and respondent defended by contesting the neglect ground. Some evidence and some of the court’s findings related to the mother’s mental health issues, and the court considered her mental health problems at disposition. The court terminated respondent’s rights based on the neglect ground, finding that respondent continued to neglect the child after placement and that there was a substantial risk of continued neglect if the child were returned home.

Issue: Was the court’s failure to appoint a guardian ad litem for the mother, because the dependency ground was alleged, reversible error?

Held: Yes. Although the court did not adjudicate the dependency ground, it clearly was alleged in the petition; petitioner offered some evidence tending to show that respondent was incapable of caring for the child due to mental illness; and the trial court referred to the mental health issues in its order.

Reversed and remanded for appointment of a guardian ad litem and a new hearing.

Request for counsel on day of hearing

In re Hopkins, ___ N.C. App. ___, 592 S.E.2d 22 (2/17/04).

Facts: In a proceeding to terminate respondents’ rights, the mother did not file an answer or attend the pretrial hearing. When she appeared on the day of the termination hearing and asked for appointed counsel, the trial court denied her request and proceeded with the hearing. She appealed from the order terminating her parental rights.

Issue: Did the trial court err in refusing to determine indigency and appoint counsel for respondent on the day of the hearing?