In Re Jv

679 S.E.2d 843
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2009
DocketCOA09-213
StatusPublished

This text of 679 S.E.2d 843 (In Re Jv) 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 Jv, 679 S.E.2d 843 (N.C. Ct. App. 2009).

Opinion

679 S.E.2d 843 (2009)

In the Matter of J.V. and M.V.

No. COA09-213.

Court of Appeals of North Carolina.

July 7, 2009.

J. Tyrone Browder, King, for petitioner-appellee Stokes County Department of Social Services.

Pamela Newell Williams, Raleigh, for Guardian Ad Litem, appellee.

Ryan McKaig, Raleigh, for respondent-appellant.

ERVIN, Judge.

John V. (Respondent Father) appeals from a permanency planning review order entered by the trial court on 8 June 2008 which, inter alia, awarded custody and guardianship of *844 his daughter, J.V.[1] to Donna and James Allen S., her maternal aunt and uncle (Donna and James).[2] For the reasons set forth below, we vacate the trial court's order and remand this proceeding to the trial court for additional findings of fact.

Respondent Father and his wife, Anita V. (Mother), are the parents of three daughters, V.V.[3], M.V.[4], and Joy. On 15 October 2007, the Stokes County Department of Social Services (SCDSS) filed juvenile petitions alleging that Marilyn was an abused, neglected and dependent juvenile and that Joy was a neglected and dependent juvenile. According to the allegations set out in the petition, Joy was afraid of Respondent Father because he physically abused Veronica and Marilyn; Respondent Father punched Marilyn in the nose on 11 October 2007, causing a nosebleed; Respondent Father confirmed the physical altercation; and domestic violence had occurred between Respondent Father and Mother.

At the time of the filing of the petition, the SCDSS took nonsecure custody of all three children. Mother, who entered into a consent agreement concerning her adjudication of incompetence, voluntarily placed herself outside the home with Adult Protective Services.[5] The trial court allowed Respondent Father to have supervised visitation with Marilyn and Joy. Respondent Father also entered into a case plan with the SCDSS in which he agreed to take parenting classes, learn alternative means of discipline, and attend domestic violence counseling.

The court subsequently adjudicated Marilyn and Joy to be neglected juveniles based upon a stipulation by the parties. The trial court placed Marilyn and Joy with Donna and James and ordered Respondent Father to cooperate with the SCDSS to effect reunification of Marilyn and Joy with Respondent Father and Mother.

At a review hearing held on 14 February 2008, the court concluded that immediate return of the juveniles to their home would be contrary to their health, safety and best interests and that the permanent plan for Marilyn and Joy would be reunification with their parents, with an alternative plan of "custody to a relative or court approved other." The court ordered that custody of the juveniles be with the SCDSS and that the juveniles be placed with Donna and James. Although Joy continued to reside with Donna and James throughout the proceedings in this case, Marilyn was subsequently transferred to a foster home.

On 24 September 2008, the trial court conducted a permanency planning review hearing. In the 25 November 2008 permanency planning order entered following a hearing held on 30 September 2008, the trial court ordered that reunification with the parents would be the permanent plan for Marilyn and that guardianship with Donna and James would be the permanent plan for Joy. As a result, custody and guardianship of Joy was awarded to Donna and James. The trial court provided for supervised visitation between Respondent Father and both Marilyn and Joy and released the SCDSS and the guardian ad litem for Joy but not Marilyn. The trial court concluded that this plan was in the best interests of the children. Respondent Father noted an appeal to this Court from the permanency planning order.

We first note that, by making Donna and James the guardians for Joy, the trial court modified her custody from the SCDSS to *845 Donna and James, which allows Respondent Father to appeal the permanency planning order as to Joy pursuant to N.C. Gen.Stat. § 7B-1001(a)(4) (which renders "[a]ny order, other than a nonsecure custody order, that changes legal custody of a juvenile" immediately appealable). As a result, this Court has jurisdiction to consider Respondent Father's challenge to the permanency planning order on the merits.

"The purpose of [a] permanency planning hearing shall be to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C. Gen.Stat. § 7B-907(a). "At any permanency planning review, the court shall consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive parent providing care for the child, the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review." N.C. Gen.Stat. § 7B-907(b). "The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen.Stat. § 7B-907(b). "At the conclusion of the hearing, the judge shall make specific findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time," including the appointment of "a guardian of the person for the juvenile pursuant to [N.C. Gen.Stat. §] 7B-600" or "any disposition authorized by [N.C. Gen.Stat. §] 7B-903 including the authority to place the child in the custody of either parent or any relative found by the court to be suitable. ..." N.C. Gen.Stat. § 7B-907(c). "If the juvenile is not returned home, the court shall enter an order consistent with its findings. ..." N.C. Gen.Stat. § 7B-907(c). "[T]he court shall consider the following criteria and make written findings regarding those that are relevant" if "the juvenile is not returned home":

(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile.
(6) Any other criteria the court deems necessary.

N.C. Gen.Stat. § 7B-907(b). "[I]n determining whether it is possible for the children to return home within six months of the permanency planning hearing, the court must look at the progress the parents have made in eliminating the conditions that [led] to the removal of the children." In re T.K., 171 N.C.App. 35, 39, 613 S.E.2d 739, 741 (2005), aff'd, 360 N.C. 163, 622 S.E.2d 494 (2005).

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Bluebook (online)
679 S.E.2d 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jv-ncctapp-2009.