In re B.W.

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-847
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disf avored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-847

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

IN THE MATTER OF:

B.W., K.T., and A.W. Durham County Nos. 12 JA 174—76

Appeal by respondent from order entered 2 May 2013 by Judge

William A. Marsh, III, in Durham County District Court. Heard

in the Court of Appeals 13 January 2014.

Assistant Durham County Attorney Robin K. Martinek for petitioner-appellee Durham County Department of Social Services.

Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant father.

Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad litem.

BRYANT, Judge.

Where respondent received adequate notice of a permanency

planning hearing to be conducted and the trial court then

combined an initial dispositional hearing with a permanency -2- planning hearing, the trial court did not err pursuant to our

Juvenile Code.

Respondent-father appeals from the trial court’s

adjudication and disposition order in which Billy, Karl, and

Andy1 were adjudicated neglected and Billy and Karl were

adjudicated abused. The Durham County Department of Social

Services (“DSS”) became involved with this family on 29 July

2011 when it received a report that respondent physically abused

Billy and Karl, and hit and beat the children’s mother in the

children’s presence. On 24 August 2011, DSS substantiated the

case for improper discipline and neglect. On 7 September 2011,

the children were placed in the home of the maternal

grandparents as part of a safety plan with DSS. The children

have been in the home of their maternal grandparents since that

date.

The mother obtained a domestic violence protective order

(“DVPO”) against respondent in October 2011. However, within

weeks the mother had the DVPO set aside because she was “working

things out” with respondent. Respondent and the mother were

referred to services related to parenting classes, psychological

evaluations, and individual and couples therapy. Respondent was

1 Billy, Karl and Andy are pseudonyms used to protect the identities of the juveniles pursuant to N.C.R. App. P. 3.1(b). -3- also referred to services for anger management. Respondent and

the mother completed parenting classes but made minimal progress

in completing the other services.

On 30 March 2012, DSS received another report in which the

children disclosed several incidents of abuse by respondent.

The reporter stated that the children disclosed that respondent

“held their heads under water and has hit them in their faces

several times.” DSS substantiated the abuse.

On 14 September 2012, DSS filed a juvenile petition

alleging all three children were neglected. The petition also

alleged that Billy and Karl were abused. The trial court

conducted an adjudication hearing on 15 and 19 February and 12

March 2013. At the conclusion of the hearing, the trial court

determined that the children were abused and neglected. The

trial court then conducted a combined disposition and permanency

planning hearing. On 2 May 2012, the trial court entered its

order adjudicating all three children neglected, and Billy and

Karl abused. The trial court awarded guardianship of Billy and

Andy to their maternal grandparents, and guardianship of Karl to

his paternal grandmother. Respondent appeals.2

2 The order also terminated the parental rights of the juveniles’ mother and L.T., the legal husband of the mother and legal father to Karl and Andy, but neither parent is a party to this -4- _______________________________

As an initial matter, we address the issue of whether

respondent has standing to appeal as to Karl and Andy. The

mother’s husband, L.T., is the legal father of Karl and Andy.

Therefore, DSS argues that respondent is neither a parent nor

guardian of Karl and Andy. Similarly, the guardian ad litem

(“GAL”) argues that respondent is neither a parent, guardian, or

custodian of either child.

Under the Juvenile Code, proper parties to appeal are as

follows: “A parent, a guardian appointed under G.S. 7B-600 or

Chapter 35A of the General Statutes, or a custodian as defined

in G.S. 7B-101 who is a nonprevailing party.” N.C. Gen. Stat. §

7B-1002(4) (2011). A custodian is defined in part as “a person,

other than parents or legal guardian, who has assumed the status

and obligation of a parent without being awarded the legal

custody of a juvenile by a court.” N.C. Gen. Stat. § 7B-101(8)

(2011). In this case, prior to their removal, Karl and Andy

resided with their mother and respondent. In fact, DSS alleged

in the juvenile petition that respondent “acted as a parent or

caretaker for all the children.” Thus, we conclude that

appeal. -5- respondent was a custodian of Karl and Andy, and therefore has

standing to appeal pursuant to section 7B-1002(4).

On appeal, respondent argues that “[i]t is readily apparent

under [the Juvenile Code] that the trial court is not authorized

to combine a permanency planning hearing with an initial

dispositional hearing and that, consequently, the trial court is

not authorized to adopt and implement a permanent plan as an

initial disposition.” Respondent contends this Court previously

reached this conclusion in In re D.C., 183 N.C. App. 344, 644

S.E.2d 640 (2007).

Section 7B-907 [of the Juvenile Code] sets forth specific rules for giving “notice of the hearing and its purpose to the parent.” “At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider” six statutorily enumerated criteria and “make written findings regarding those that are relevant.”

Id. at 355, 644 S.E.2d at 646 (quoting N.C. Gen. Stat. § 7B-

907(b)). In D.C., this Court reversed the portion of the trial

court’s order awarding guardianship because the respondent did

not receive the statutorily required notice and the trial court

failed to make the findings mandated by N.C.G.S. § 7B-907.

Moreover, in In re S.C.R., __ N.C. App. __, 718 S.E.2d 709

(2011), “this Court has previously held that ‘N.C. Gen.[]Stat.

§§ 7B-507 and 907 do not permit the trial court to enter a -6- permanent plan for a juvenile during disposition’ without the

statutorily required notice for a permanency planning hearing.”

Id. at __, 718 S.E.2d at 713 (quoting In re D.C., 183 N.C. App.

344, 356, 644 S.E.2d 640, 646 (2007)). The Court in S.C.R. held

that it was error for the trial court to authorize the permanent

plan at disposition without the statutorily required notice.

Id.

In present case, the “Notice of Hearing” provided:

“Following adjudication, the matter will proceed to disposition

and permanency planning hearing for this matter.” Thus, the

parties received notice as to the permanency planning hearing.

In fact, respondent concedes that he received notice as to the

permanency planning hearing. Respondent further concedes that

the trial court made the findings mandated by N.C.G.S. 7B-

907(b). Furthermore, at the conclusion of the permanency

planning hearing, the trial court “may appoint a guardian of the

person for the juvenile pursuant to G.S. 7B-600 . . . .” N.C.

Gen. Stat. § 7B-907(c) (2011). Accordingly, the trial court did

not err in adopting and implementing the permanent plan of

guardianship at the initial disposition hearing. The trial

court’s order is affirmed.

Affirmed. -7- Judges HUNTER, Robert C., and STEELMAN concur.

Report per Rule 30(e).