In re B.P.

612 S.E.2d 328, 169 N.C. App. 728, 2005 N.C. App. LEXIS 846
Court of Appeals of North Carolina·Decided April 19, 2005·No. No. COA04-498.·Published·Cited by 20 cases

Opinions

TYSON, Judge.

Kimberly Tripp ("respondent") appeals from the trial court's permanency planning review order entered 13 August 2003, nunc pro tunc to 13 February 2003. We dismiss respondent's appeal as it relates to B.P. and R.T. as interlocutory. We reverse the trial court's order as it relates to S.P. and remand.

I. Background

Respondent is the mother of three minor children: B.P., S.P., and R.T. (collectively, "the children"). On 31 March 1999, the trial *330court adjudicated the children to be neglected and dependent. Respondent did not appeal from this order. The children were placed in foster care, received therapy, and were allowed visitation with respondent.

Following entry of the original adjudication and dispositional order, the trial court conducted several review hearings. In March 2001, the trial court entered a permanency planning review order relieving the Pitt County Department of Social Services ("DSS") from reunification efforts and ordering the "permanency plan" for the children to be with "approved caretakers." Respondent did not appeal from this order, or the subsequent continuation of the permanency plan as set forth in the review orders entered June 2001, January 2002, May 2002, and July 2002.

The trial court conducted another permanency planning hearing on 13 February 2003 and by order dated 13 August 2003, continued the permanency plans for R.T. and B.P., but changed the permanency plan of guardianship for S.P. from an approved caretaker to adoption. Respondent appeals from this order.

II. Issues

The issues presented are whether: (1) this appeal is interlocutory; (2) the trial court erred in entering permanency plans for S.P. when it failed to consider the changed circumstances of the mother; (3) respondent was provided ineffective assistance of counsel; (4) the trial court failed to enter timely orders; and (5) the findings of fact and conclusions of law do not resemble the orders rendered in open court, are not supported by competent evidence, and are insufficient as a matter of law.

III. Interlocutory Order

DSS contends respondent's appeal of the 13 August 2003 order as it relates to guardianship of the children is interlocutory. We agree the order is interlocutory as it relates to B.P. and R.T., but disagree as it relates to S.P.

In order for this Court to review an interlocutory order, the appealing party carries the burden of establishing that:

(1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.G.S. § 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review. Flitt v. Flitt, 149 N.C.App. 475, 561 S.E.2d 511 (2002).

McConnell v. McConnell, 151 N.C.App. 622, 624-25, 566 S.E.2d 801, 803 (2002). We must determine whether an appeal is interlocutory on a case-by-case basis. Id. at 625, 566 S.E.2d at 803 (citing McCallum v. North Carolina Coop. Extensive Serv. of N.C. State Univ., 142 N.C.App. 48, 542 S.E.2d 227, appeal dismissed and disc. rev. denied, 353 N.C. 452, 548 S.E.2d 527 (2001)).

N.C. Gen.Stat. § 7B-1001 (2003) establishes the right to appeal from a final order in a juvenile case:

A final order shall include:

(1) Any order finding absence of jurisdiction;

(2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;

(3) Any order of disposition after an adjudication that a juvenile is abused, neglected, or dependent; or

(4) Any order modifying custodial rights.

Sections (1), (2), and (4) are inapplicable to the case at bar because the 13 August 2003 and 1 October 2003 permanency planning review orders do not find absences of jurisdiction, determine the action or prevent a judgment, or modify respondent's custody rights to her children.

As B.P. and R.T. have been adjudicated neglected and dependent, our review turns to whether the order appealed from constitutes a "disposition" or a "final order" as contemplated under the statute. DSS contends the 13 August 2003 order is not a dispositional order as to B.P. and R.T. because it does not change or alter the original permanency plan set forth in the March 2001 order. We agree.

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In re B.P., 612 S.E.2d 328, 169 N.C. App. 728, 2005 N.C. App. LEXIS 846 (N.C. Ct. App. 2005).

612 S.E.2d 328 (In re B.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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