In Re JB

677 S.E.2d 532, 197 N.C. App. 497, 2009 N.C. App. LEXIS 765
CourtCourt of Appeals of North Carolina
DecidedJune 16, 2009
DocketCOA09-21
StatusPublished
Cited by2 cases

This text of 677 S.E.2d 532 (In Re JB) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JB, 677 S.E.2d 532, 197 N.C. App. 497, 2009 N.C. App. LEXIS 765 (N.C. Ct. App. 2009).

Opinion

677 S.E.2d 532 (2009)

In re J.B.

No. COA09-21.

Court of Appeals of North Carolina.

June 16, 2009.

*533 Richard Croutharmel, Raleigh, for Respondent-Mother.

Lisa M. Schreiner, Fuquay-Varina, for Appellee-Guardian Ad Litem.

ROBERT C. HUNTER, Judge.

Respondent-mother ("respondent") appeals from a "Review Order[,]" which, inter alia: (1) granted legal and physical custody of her son, J.B., to his paternal grandmother, E.F.; (2) released her and the respondent-father's[1] respective attorneys, the Guardian ad litem ("GAL") advocate, and the attorney advocate; and (3) transferred the case to Chapter 50 and terminated the trial court's jurisdiction over the juvenile proceeding. After careful review, we reverse the trial court's order and remand for further proceedings.

I. Background

On 17 May 2007, J.B. was placed in the custody of petitioner Moore County Department of Social Services ("DSS") pursuant to a non-secure custody order. On 18 May 2007, DSS filed a juvenile petition alleging that J.B. was a neglected juvenile. At the time DSS filed the petition, J.B. lived with his father, T.P., and his live-in girlfriend, A.B.[2] DSS obtained legal custody of J.B. and placed him with his paternal grandmother, E.F.

Following a 5 September 2007 adjudication hearing, the court determined that J.B. had been subject to an environment injurious to his welfare and adjudicated him neglected. This determination stemmed from an altercation between respondent and A.B. that occurred in J.B.'s presence during a visitation exchange. Pursuant to the adjudication order, J.B.'s legal custody remained with DSS.

Following an 11 September 2007 disposition hearing, the trial court entered a disposition order, which, inter alia: (1) concluded that J.B.'s legal custody should remain with DSS; and (2) mandated that respondent, T.P., and A.B. submit to, and pass, three random drug screens as a prerequisite to obtaining unsupervised visitation.

Following a 10 December 2007 review hearing, a "Review Order" was entered, which, inter alia: (1) continued J.B.'s placement in E.F.'s home, "with alternating weekend overnight visits" with respondent and her live-in boyfriend, D.B.; (2) noted that the "prior civil order prohibit[ing D.B.] from being in the home with [J.B.]" had been superseded by a subsequent order of the trial court which "allowed [J.B] to be in the home of [respondent] and [D.B.] unsupervised"; (3) continued legal custody of J.B. with DSS; and (4) mandated that respondent, D.B., T.P., and A.B. all submit to random drug screens.

Following an 11 February 2008 review hearing, the trial court entered another "Review Order[,]" which found, inter alia, that: (1) J.B. had been engaging in therapy in an effort to reunify with respondent and the therapy was going well; (2) DSS had recommended a trial placement of J.B. in respondent's home, but that the court did not concur in this recommendation; and (3) "[t]he present permanent plan remains reunification with a parent." Based on these and other findings of fact, the court concluded, inter alia, that: (1) it was contrary to J.B.'s best interest to return home; (2) it was in his best interest for legal custody to remain with DSS; and (3) it was in his best interest to continue his placement with E.F.

For the most part, over the next few months, the case maintained its status quo. However, for a short period of time, respondent lost the right to unsupervised visits with J.B. at her residence because D.B. missed some of his court-mandated drug screens. On 25 April 2008, the unsupervised visits resumed based upon negative drug screens by both respondent and D.B. and the absence of any reports of domestic violence in respondent's home. As indicated by the trial court's orders, during this period, J.B.'s permanent plan remained reunification with a parent.

*534 On 31 July 2008, Richmond County Department of Social Services issued home study reports on respondent's and E.F.'s respective homes, which concluded that J.B. would be safe in either home. Specifically, with regard to respondent's home, the report stated: "There were no findings of maltreatment. No current safety issues exist. At this time, it does not appear [J.B.] would be unsafe. Based on the findings of Richmond County CPS Assessment, [J.B.] is not at risk of future harm. [J.B.] is not in need of protection." In late August 2008, DSS Social Worker, Adrian Black, submitted a "Family Reunification Assessment", which concluded: (1) there was a moderate risk level in respondent's home; (2) respondent had demonstrated "High Compliance" with her case plan; and (3) it was safe for J.B. to live in her home. In addition, DSS recommended that J.B. be returned to respondent's custody. The guardian ad litem ("GAL") report also recommended that legal and physical custody of J.B. be given to respondent and D.B.

A hearing was held on 28 August and 11 September 2008. At the close of testimony, respondent, DSS and the GAL all agreed that J.B. should be placed in respondent's custody. T.P.'s attorney asserted that J.B. should be placed in E.F.'s custody. In its 9 October 2008 "Review Order", the trial court determined, inter alia, that it was in J.B.'s best interest to: (1) grant physical and legal custody to E.F.; and (2) terminate the court's jurisdiction over the juvenile case and transfer the matter to Chapter 50. This appeal followed.

II. Analysis

At the outset, we note that in the instant case: (1) during the proceeding below, both DSS and the GAL asserted that it was in J.B.'s best interest for custody to be granted to respondent; (2) the GAL has filed an appellee's brief on behalf of J.B. asserting that the trial court's 9 October 2008 order should be reversed; and (3) no brief has been filed with this Court urging us to affirm the order.

A. Transfer to Chapter 50 and Termination of Jurisdiction

On appeal, both respondent and the GAL assert that the trial court erred by transferring J.B.'s juvenile case to Chapter 50 and terminating its jurisdiction over the juvenile proceeding. In addition, respondent contends that the trial court erred because its order lacks numerous findings of fact mandated by N.C. Gen.Stat. § 7B-911 (2007). We agree.

Here, the trial court made no findings of fact regarding its decision to transfer J.B.'s case to Chapter 50 and to terminate its jurisdiction. Rather, the court simply concluded: "It is in the child's best interest that any future issues related to custody including matters of visitation that may arise between the respondent parents and paternal grandmother shall be conducted pursuant to the provisions of NCGS chapter 50[.]" Based on this conclusion, the court mandated that the respondent parents' respective attorneys, the GAL, and the attorney advocate were to be released and that "[t]he respondent parents are to address future matters in connection with custody, including issues related to visitation pursuant to the provisions of NCGS Chapter 50 and not under the provisions of NCGS Chapter 7B."

At the outset, we note that section 7B-911 governs "[c]ivil child-custody order[s]" and the transfer of Chapter 7B juvenile cases to Chapter 50. Id. In the instant case, the trial court labeled its 9 October 2008 order as a "Review Order[,]" not as a civil child custody order. As such, it appears that the trial court impermissibly intended to transfer J.B.'s juvenile case to Chapter 50 without entering the requisite civil custody order mandated by section 7B-911. See In re H.S.F., 182 N.C.App.

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Cite This Page — Counsel Stack

Bluebook (online)
677 S.E.2d 532, 197 N.C. App. 497, 2009 N.C. App. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jb-ncctapp-2009.