In re L.B.

646 S.E.2d 411, 184 N.C. App. 442
Court of Appeals of North Carolina·Decided July 3, 2007·No. No. COA06-1295.·Published·Cited by 13 cases

Opinion

JACKSON, Judge.

Tracie B. ("respondent") is the mother of L.B., the juvenile who is the subject of this appeal.1 For the following reasons, we affirm in part and reverse in part the trial court's order.

By nonsecure custody order dated 17 August 2004, L.B. was placed in the custody of the Wayne County Department of Social Services ("DSS"). The nonsecure custody order was based on a juvenile petition, signed and verified on 19 August 2004, alleging that L.B. was neglected and dependent. On 23 November 2005, the trial court filed a permanency planning order, and respondent appealed to this Court. See In re L.B., ___ N.C.App. ___, 639 S.E.2d 23 (2007). As such, the facts of this case are stated in detail in the earlier opinion.

Subsequent to the trial court's 23 November 2005 order but before the 2 January 2007 filing of this Court's opinion in respondent's prior appeal, the trial court entered an order on 28 February 2006 following a review hearing on 26 January 2006. In that order, the trial court changed the permanent plan from reunification with respondent to guardianship with L.B.'s custodians, Steven and Doris Johnson ("the Johnsons"). The trial court left respondent's visitation to the Johnsons' discretion and determined that there was no *413need for further review hearings. Thereafter, respondent filed notice of appeal.

In her first argument, respondent contends that because the initial juvenile petition was not signed and verified until 19 August 2004, two days after the order for nonsecure custody was filed and one day after the summons was issued, all subsequent orders, including the 28 February 2006 review order, should be vacated for lack of subject matter jurisdiction. In respondent's prior appeal, however, this Court held that although "the trial court did not have jurisdiction when the order for nonsecure custody was filed and summons was issued," the trial court nevertheless acquired subject matter jurisdiction once the juvenile petition was signed and verified in accordance with North Carolina General Statutes, sections 7B-403 and 7B-405. L.B., ___ N.C.App. at ___, 639 S.E.2d at 29. "Therefore, the trial court had authority to enter its permanency planning order." Id. As the holding in respondent's prior appeal with respect to this jurisdictional issue is the law of the case, see N.C. Nat'l Bank v. Va. Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631 (1983), we hold that the trial court possessed subject matter jurisdiction to enter the 28 February 2006 review order. Accordingly, respondent's first assignment of error is overruled.

In her second argument, respondent contends that the trial court erred: (1) in failing to comply with the mandates of North Carolina General Statutes, section 7B-906 before waiving further review hearings; (2) in delegating judicial responsibility for visitation to L.B.'s custodians; (3) in considering and incorporating reports and summaries submitted by DSS and the guardian ad litem; (4) in making findings which recited testimony or statements of the court; (5) in calling respondent as a witness at the review hearing; and (6) in findings of fact numbers 19 and 21 through 25, on the grounds that they are not supported by competent evidence and, in turn, do not support the court's conclusions. We review these arguments in the order presented.

First, respondent contends that the trial court failed to comply with North Carolina General Statutes, section 7B-906(b). We agree.

Pursuant to North Carolina General Statutes, section 7B-906(a), "[i]n any case where custody is removed from a parent, guardian, custodian, or caretaker the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter." N.C. Gen.Stat. § 7B-906(a) (2005). The trial court, however, may dispense with review hearings if the court finds the following by clear, cogent, and convincing evidence:

(1) The juvenile has resided with a relative or has been in the custody of another suitable person for a period of at least one year;

(2) The placement is stable and continuation of the placement is in the juvenile's best interests;

(3) Neither the juvenile's best interests nor the rights of any party require that review hearings be held every six months;

(4) All parties are aware that the matter may be brought before the court for review at any time by the filing of a motion for review or on the court's own motion; and

(5) The court order has designated the relative or other suitable person as the juvenile's permanent caretaker or guardian of the person.

N.C. Gen.Stat. § 7B-906(b) (2005). Failure to find all of these criteria constitutes reversible error. See In re R.A.H., ___ N.C.App. ___, ___, 641 S.E.2d 404, 410 (2007).

Preliminarily, we note that the statute does not state whether the trial court must make the required findings in writing. "In matters of statutory construction, our task is to determine the intent of the General Assembly." In re T.R.P., 360 N.C. 588, 600, 636 S.E.2d 787, 796 (2006). Written findings of fact will ensure that the trial court, before waiving the holding of further review hearings, carefully considers each of the five enumerated factors in section 7B-906(b). Such findings also will provide an opportunity for meaningful appellate review. See Sain v. Sain, 134 N.C.App. 460, 466, 517 S.E.2d 921, *414926 (1999) (mandating that the "trial court must enter written findings of fact" when the controlling statute only required that "the court shall make findings of fact."). Accordingly, we hold that the trial court must make written findings of fact satisfying each of the enumerated criteria in section 7B-906(b).

In the instant case, the trial court complied with portions of section 7B-906.

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In re L.B., 646 S.E.2d 411, 184 N.C. App. 442 (N.C. Ct. App. 2007).

646 S.E.2d 411 (In re L.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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