In re L.L.

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-365 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF: Orange County No. 11 JA 1 L.L.

Appeal by respondent from order entered 20 December 2013 by

Judge Beverly Scarlett in Orange County District Court. Heard

in the Court of Appeals 30 June 2013.

Michael N. Tousey for guardian ad litem.

Mary McCullers Reece for respondent-appellant mother.

HUNTER, JR., Robert N., Judge.

Respondent, mother of juvenile L.L. (“Larry”), appeals from

an order styled “Custody Order 7B-911 N.C.G.S. Chapter 50”

entered by the district court on remand from our decision in In

re L.L., ___ N.C. App. ___, 749 S.E.2d 113, 2013 N.C. App. LEXIS

873 (2013) (unpublished) (“L.L. II”). We affirm.

This is respondent’s third appeal in this cause. In In re

L.L., ___ N.C. App. ___, 734 S.E.2d 140, 2012 N.C. App. LEXIS -2- 1241 (2012) (unpublished) (“L.L. I”), she appealed from a

permanency planning order that awarded legal and physical

custody of Larry to his father. Because the order lacked the

finding required by N.C. Gen. Stat. § 7B-907(b)(1) (2013) as to

whether it was possible to return Larry to respondent’s home

immediately or within the next six months, we reversed and

remanded to the district court for a new permanency planning

hearing.1 L.L. I, 2012 N.C. App. LEXIS 1241, at *10.

In L.L. II, respondent appealed from the order entered on

remand from L.L. I. In this order, entered 23 January 2013, the

district court not only granted custody to Larry’s father but

also closed the juvenile case and converted the proceeding to a

civil custody action under Chapter 50 of our General Statutes.

See N.C. Gen. Stat. § 7B-911 (2013). Although respondent again

claimed the order lacked the necessary permanency planning

finding under N.C. Gen. Stat. § 7B-907(b)(1), we deemed the

court’s findings sufficient and “accordingly affirm[ed] this

portion of the order.” L.L. II, 2013 N.C. App. LEXIS 873, at

*3. However, we vacated the portion of the order transferring

the case from juvenile court to civil custody court, due to the

court’s failure to make the statutorily required finding

1 We also remanded for entry of a proper visitation plan. L.L. I, 2012 N.C. App. LEXIS 1241, at *10. -3- “‘[t]hat there is not a need for continued State intervention on

behalf of the juvenile through a juvenile court proceeding[.]’”

Id. at *4 (quoting N.C. Gen. Stat. § 7B-911(c)(2)(a) (2011)).

“Absent . . . any finding which addresses the need for continued

State intervention on behalf of the juvenile[,]” we concluded,

“the order of transfer must be vacated and the matter remanded

for further proceedings consistent with this opinion.” Id.

Following our decision in L.L. II, respondent filed a

motion to modify visitation and noticed the matter for hearing

on 19 December 2013. At the hearing the parties described their

difficulty in agreeing upon a mutually convenient time for

respondent’s visitation with Larry. After stating its belief

that “[this] is a Chapter 50 issue[,]” the court announced,

“This case is definitely going to Chapter 50. I am finding that

as of the date of the last order from DSS court that was

appealed to the Court of Appeals, that there has not been any

need for further State intervention.” The court denied

respondent’s motion to modify visitation in an order entered 10

January 2014.

In its “Custody Order 7B-911 N.C.G.S. Chapter 50[,]” the

district court acknowledged this Court’s mandate in L.L. II,

repeated the findings of fact made in its 23 January 2013 order, -4- and added an additional finding that, “[p]ursuant to North

Carolina General Statute 7B-911(c)(2), there is no longer a need

for state intervention in this matter and this matter is

properly converted to a Chapter 50 case.” The court again

decreed that custody of Larry would be granted to his father and

that “[t]his matter shall be closed to further court review and

be converted to a Chapter 50 case pursuant to N.C.G.S. 7B-911.”

It directed the clerk of court to “assign a CVD file number for

this matter” and to “treat this order as the initiation of a

civil custody action[.]”

Respondent now claims that the district “court erred by

entering a permanency planning remand order” without providing

notice to the parties as required by N.C. Gen. Stat. § 7B-906.1

(2013). She notes that she “did not calendar the matter for

permanency planning hearing or for a remand hearing on the issue

of transferring jurisdiction to Chapter 50 court” when she

noticed her motion to modify visitation for hearing on 19

December 2013. Therefore, respondent contends, “the issues

relating to permanency planning, including transfer of the case,

were not properly before the trial court.”

The guardian ad litem (“GAL”) has moved to dismiss

respondent’s appeal, claiming that the “Custody Order 7B-911 -5- N.C.G.S. Chapter 50” is not appealable. In her statement of

grounds for appellate review, see N.C. R. App. P. 28(b)(4),

respondent asserts a right of appeal under N.C. Gen. Stat. § 7B-

1001(a)(4) (2013), inasmuch as the order “changes legal custody

of a juvenile.” She suggests that the district court

“replace[d] the permanency planning orders remanded by this

Court on 6 November 2013 and 20 August 2013” and that,

therefore, “the effect of the current appealed order is to

change the child’s legal custody and cease review in the

juvenile court.”

We agree with the GAL that the order entered sub judice did

not effect a change in Larry’s custody, which remained with his

father. Nonetheless, we believe it is subject to appeal—either

as an order “which in effect determines the [juvenile] action

and prevents a judgment from which appeal might be taken[,]”

N.C. Gen. Stat. § 7B-1001(a)(2), or as a civil custody

determination under Chapter 50. See N.C. Gen. Stat. §§ 7B-

911(b), 50-19.1 (2013). Therefore, we deny the GAL’s motion to

dismiss.

We find no merit to respondent’s claim that she was denied

notice of a permanency planning hearing under N.C. Gen. Stat. §

7B-906.1(b). Our ruling in L.L. II affirmed the portion of the -6- district court’s 23 January 2013 order awarding custody to

Larry’s father. We vacated the order only insofar as it

converted the juvenile case to a civil custody action under N.C.

Gen. Stat. § 7B-911. Though we remanded for further fact-

finding under N.C. Gen. Stat. § 7B-911(c)(2)(a), our mandate did

not require the district court to hold a new hearing on the

issue. Moreover, we find no indication that the court intended

to revisit Larry’s permanent plan or its transfer decision at

the 19 December 2013 hearing noticed by respondent on her motion

to modify visitation. While the court reiterated its intention

to transfer the case from juvenile to civil court, it did so in

the course of explaining its ruling on respondent’s motion.

Because the hearing in question was not a “subsequent permanency

planning” hearing under N.C. Gen. Stat. § 7B-906.1, the

statute’s notice provisions did not apply. Respondent’s

argument is overruled.

Affirmed.

Chief Judge MARTIN and Judge ELMORE concur.

Report per Rule 30(e).