In Re KC

681 S.E.2d 559
CourtCourt of Appeals of North Carolina
DecidedSeptember 1, 2009
DocketCOA09-445
StatusPublished

This text of 681 S.E.2d 559 (In Re KC) 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 KC, 681 S.E.2d 559 (N.C. Ct. App. 2009).

Opinion

681 S.E.2d 559 (2009)

In the Matter of K.C. and C.C.

No. COA09-445.

Court of Appeals of North Carolina.

September 1, 2009.

*560 Courtney S. Hull, Moyock, for appellee Currituck County Department of Social Services.

Pamela Newell Williams, Raleigh, for appellee guardian ad litem.

Robin E. Strickland, Raleigh, for appellant respondent-mother.

ERVIN, Judge.

Respondent-Mother, Judith C., appeals from adjudication and disposition orders entered by the trial court finding her children, K.C. (Keith) and C.C. (Carol)[1], to be neglected juveniles on the grounds that the trial court erred in failing to include a visitation plan in its order as required by N.C. Gen. Stat. § 7B-905(c). After careful review, we affirm the trial court's adjudication and disposition orders.

We must first address the motion to dismiss Respondent-Mother's appeal filed by the Currituck County Department of Social Services ("DSS") and a related petition for writ of certiorari filed by Respondent-Mother. On 15 December 2008, Respondent-Mother filed a timely notice of appeal from *561 the trial court's adjudication order, which was entered on 13 November 2008. The 15 December 2008 notice of appeal referenced the adjudication order, but not the disposition order, which had been entered on 20 November 2008. Respondent-Mother subsequently filed an amended notice of appeal on 30 January 2009 seeking relief from both the adjudication and disposition orders. In seeking dismissal of Respondent-Mother's appeal, DSS argued that the amended notice of appeal was not filed within 30 days of the entry of the disposition order; that appeals from an adjudication order have to be taken in conjunction with an appeal from the related disposition order; and the amended notice of appeal, which was the only notice of appeal that referenced the disposition order, was not filed in a timely manner.

After careful review of the record and the applicable law, we agree that Respondent-Mother failed to note a timely appeal from the disposition order and that she was required to file a timely notice of appeal from the disposition order as a prerequisite for appealing issues arising from the adjudication order as a matter of right, N.C. Gen. Stat. § 7B-1001(a)(3) (limiting appeals in juvenile matters conducted "under this Subchapter" to a specified array of orders, including "[a]ny initial order of disposition and the adjudication order upon which it is based"). For that reason, we are constrained to grant DSS's motion to dismiss Respondent-Mother's appeal.

Respondent-Mother has, however, filed a petition seeking the issuance of writ of certiorari pursuant to N.C.R.App. P. 21 in order to permit review of the trial court's orders in the discretion of the court in the event that we conclude that her appeal as of right should be dismissed. According to Respondent-Mother, her failure to note a timely appeal from the trial court's disposition order did not occur as the result of any fault of her own and that, once her trial counsel learned of his mistake, he immediately filed an amended notice of appeal in an attempt to rectify his error. In light of these facts and the importance of issues involving the relations between parents and their children, we elect to exercise our discretion and will allow respondent's petition for a writ of certiorari so as to permit us to review both of the trial court's orders. N.C.R.App. P. 21. Thus, we will proceed to examine Respondent-Mother's challenge to the trial court's orders on the merits.

On 28 May 2008, DSS filed petitions alleging that both Keith and Carol were abused, neglected, and dependent juveniles. On the same day, DSS was granted non-secure custody of both Keith and Carol. According to the allegations set out in the petitions, DSS had been involved with the family in question since the late 1990s. Respondent-Mother and her ex-husband had adopted several children, about whom DSS began to receive reports relating to inappropriate supervision. The first two reports were unsubstantiated. The third report involved the drowning of two small grandchildren in the family pool, a tragedy which occurred while the children were left unsupervised. After this incident Respondent-Mother and her husband separated.

By the filing of the DSS petitions, Keith and Carol, both of whom were teenagers, were the only children still living in Respondent-Mother's home. DSS stated that it was aware of reports that Respondent-Mother kept the refrigerator and food pantry padlocked so Keith and Carol could not obtain access to the food. DSS further alleged that Respondent-Mother was not cooperative with the childrens' school regarding free lunch and that the children were not provided with lunch money, a fact that forced them to borrow food from friends.

Immediately prior to the filing of the DSS petition, Respondent-Mother filed a juvenile complaint against Keith and Carol in which she alleged that they were undisciplined. After DSS was requested to investigate the allegations set out in Respondent-Mother's petition and Respondent-Mother was ordered to cooperate with DSS, a social worker went to the house. At that time, Respondent-Mother became hostile, stated that she disagreed with the requirement that she cooperate with DSS, and demanded that Keith and Carol be removed from the home immediately. As a result of Respondent-Mother's behavior, verbal abuse, and the neglect of the *562 children, DSS took the children into custody, placed them with an older sister, and filed juvenile petitions alleging that Keith and Carol were "exposed to an injurious environment, verbal abuse, lack of basic needs, and are dependent as the mother wants them out."

At a child planning conference held on 4 June 2008, a Memorandum of Agreement and Consent Order was agreed to by all parties except Respondent-Mother. The agreement addressed the placement of the juveniles, visitation, and other issues regarding the matters at issue in this proceeding. Respondent-Mother did not agree that Keith and Carol should be placed with their older sister and stated that, if the children would stop disrupting her home and threatening her, she would eventually allow them to return. By means of an order of the same date, the trial court concluded that it would not be in the juveniles' best interest to return home and that the juveniles should be placed in "the discretion" of DSS.

On 18 September 2008, this case came on for adjudication before the trial court. According to uncontested findings of fact made by the trial court in its 10 November 2008 adjudication order, Respondent-Mother does not generally allow Keith and Carol to be in the family home unless she is present because "the children do not belong in the home when she is not at home." In the event that Respondent-Mother is not at home, the children can contact their sister. Respondent-Mother did not allow the juveniles to have keys to the family home because they kept losing them.

Both children have been diagnosed with various disorders, including attention deficit hyperactivity disorder and post traumatic stress disorder. In addition, Keith has been diagnosed with depression and Carol has been diagnosed with bi-polar disorder. Respondent-Mother did not seek counseling for the children after August 2006 and did not assist the children with taking their medications. In fact, Respondent-Mother threw the juveniles' medicine away out of fear that her grandchildren would find those substances when visiting her home.

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Related

Overton v. Overton
132 S.E.2d 349 (Supreme Court of North Carolina, 1963)
State v. Payne
185 S.E.2d 101 (Supreme Court of North Carolina, 1971)
In Re Custody of Stancil
179 S.E.2d 844 (Court of Appeals of North Carolina, 1971)
In re E.C.
621 S.E.2d 647 (Court of Appeals of North Carolina, 2005)
In re K.C. & C.C.
681 S.E.2d 559 (Court of Appeals of North Carolina, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
681 S.E.2d 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kc-ncctapp-2009.