In Re STP

689 S.E.2d 223, 202 N.C. App. 468, 2010 N.C. App. LEXIS 281
CourtCourt of Appeals of North Carolina
DecidedFebruary 16, 2010
DocketCOA09-1281
StatusPublished
Cited by11 cases

This text of 689 S.E.2d 223 (In Re STP) 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 STP, 689 S.E.2d 223, 202 N.C. App. 468, 2010 N.C. App. LEXIS 281 (N.C. Ct. App. 2010).

Opinion

689 S.E.2d 223 (2010)

In the Matter of S.T.P.

No. COA09-1281.

Court of Appeals of North Carolina.

February 16, 2010.

*224 Kathleen Arundell Widelski, Charlotte, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.

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

Leslie C. Rawls, Charlotte, for respondent-appellant mother.

Janet K. Ledbetter, Hillsborough, for respondent-appellant father.

STEELMAN, Judge.

Closing a case file is not the equivalent of the trial court terminating its jurisdiction. The district court retained subject matter *225 jurisdiction and could act upon the "Motion in the Cause to Reassume Custody." The district court did not abuse its discretion in determining that termination of Mother's parental rights was in juvenile's best interest.

I. Factual and Procedural Background

S.T.P. was born cocaine positive. Mother has a lengthy history of drug abuse, and she tested positive for cocaine and marijuana at S.T.P.'s birth. The hospital recommended that Mother enter inpatient treatment, but she refused. Both Mother and Father have a criminal history. At the time of S.T.P.'s birth, Mother was homeless but planned to move into her parents' residence.

On 4 February 1999, Mecklenburg County Department of Social Services, Youth and Family Services (DSS) filed a Juvenile Petition alleging that S.T.P. was a neglected and dependent juvenile. On 9 February 1999, Father acknowledged paternity. On 15 March 1999, S.T.P. was adjudicated a neglected and dependent juvenile. On 20 May 1999, the district court entered a Dispositional Order in Mecklenburg County case 99 J 85, which placed S.T.P. in the custody of his maternal grandparents. Mother was incarcerated at that time. Father was ordered to stay away from the maternal grandparents' residence.

In 2004, S.T.P.'s maternal grandfather died from cancer. On 11 August 2006, DSS received a report that Mother was abusing both S.T.P. and the maternal grandmother, and that the maternal grandmother was unable to care for S.T.P. due to medical issues. In September 2006, a safety plan was put in place and signed by the maternal grandmother. On 10 January 2007, DSS received another report regarding the maternal grandmother's substance abuse problems. On 26 January 2007, a family meeting was held between the maternal grandmother and a social worker. Mother was invited but did not attend. The maternal grandmother admitted to using controlled substances and that Mother had moved in with her. She later tested positive for cocaine.

On 29 January 2007, DSS filed a document styled as "Motion In The Cause To Reassume Custody" under file number 99 J 85, seeking to obtain custody of S.T.P. That same day, the district court entered an "Order to Reassume Custody and Schedule Review Hearing," placing S.T.P. in the legal and physical custody of DSS. On 6 February 2007, an Initial (7-Day) Hearing was held pursuant to N.C. Gen.Stat. § 7B-506, at which Mother admitted she had not completed any substance abuse treatment in the past eight years.

On 19 February 2007, the district court entered an Order requiring S.T.P. to remain in DSS custody with the goal of reunification with the maternal grandmother. DSS was given discretion to place S.T.P. back with his maternal grandmother if she complied with her treatment. S.T.P. suffered from asthma, attention deficit hyperactivity disorder (ADHD), and oppositional defiant disorder (ODD). His behavior therapist recommended that he receive special treatment and attend family therapy.

On 9 April 2007, a case plan was put in place for the maternal grandmother requiring her to: (1) maintain suitable housing and provide sufficient income for herself and S.T.P.; (2) attend medical appointments and family therapy for S.T.P.; (3) attend a parenting skills assessment; (4) attend a FIRST assessment; (5) attend outpatient treatment for substance abuse; and (6) submit to random drug screens.

On 26 February 2007, the maternal grandmother began substance abuse treatment, but was discharged on 18 April 2007 due to repeated unexcused absences. On 1 May 2007, a Review Hearing was held, and the district court ordered S.T.P. to remain in DSS custody with a plan for reunification with the maternal grandmother. Mother and the maternal grandmother were allowed visitation and ordered to comply with a case plan. On 18 June 2007, the maternal grandmother tested positive for opiates, and reentered substance abuse treatment.

On 3 October 2007, Mother tested positive for cocaine, and following a show cause order, enrolled in the FIRST Program on 17 October 2007. On 26 November 2007, Mother enrolled in intensive outpatient treatment but was released on 6 December 2007 following a positive drug test for methadone. She *226 was referred to inpatient treatment but refused to attend.

On 26 January 2008, Mother was ordered to complete an inpatient treatment program while she was incarcerated. On 4 April 2008, Mother completed the inpatient treatment program. On 21 April 2008, Mother supplied a breath sample, which showed a blood-alcohol concentration of 0.028. The next day, she was referred to adult mental health services but did not attend any scheduled appointments.

On 26 May 2008, licensed psychologist, Richard E. Bridgette (Dr. Bridgette) completed a written report on his psychological evaluation of S.T.P. Dr. Bridgette opined that S.T.P. needed "a living environment that is stable, conflict-free, and consistent in rules, expectations, and consequences to help him learn to control his own behavior." Dr. Bridgette recommended that S.T.P. remain out of the maternal grandmother's custody. Dr. Bridgette attempted to assess Mother's "psychological and cognitive functioning," but Mother failed to attend either of the two scheduled evaluation appointments.

On 27 May 2008, a Permanency Planning Hearing was held, and the permanent plan for S.T.P. was changed to adoption, with supervised visits between S.T.P., and Mother and the maternal grandmother. Father's whereabouts were unknown. On 28 July 2008, DSS filed a Petition to Terminate Parental Rights for both Mother and Father. On 22 July 2009, the district court entered an order terminating the parental rights of both Mother and Father.

Both Mother and Father appeal.

II. Subject Matter Jurisdiction

A. Standard of Review

"Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question ... [and] is conferred upon the courts by either the North Carolina Constitution or by statute." Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987). "Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal." In re H.L.A.D., 184 N.C.App. 381, 385, 646 S.E.2d 425, 429 (2007) (citing In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006)), aff'd per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). "The determination of subject matter jurisdiction is a question of law and this Court has the power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ... when subject matter jurisdiction is lacking." In re J.B., 164 N.C.App.

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Cite This Page — Counsel Stack

Bluebook (online)
689 S.E.2d 223, 202 N.C. App. 468, 2010 N.C. App. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stp-ncctapp-2010.