In Re Tb

685 S.E.2d 529, 200 N.C. App. 739, 2009 N.C. App. LEXIS 1727
CourtCourt of Appeals of North Carolina
DecidedNovember 3, 2009
DocketCOA09-575
StatusPublished
Cited by16 cases

This text of 685 S.E.2d 529 (In Re Tb) 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 Tb, 685 S.E.2d 529, 200 N.C. App. 739, 2009 N.C. App. LEXIS 1727 (N.C. Ct. App. 2009).

Opinion

685 S.E.2d 529 (2009)

In the Matter of T.B.

No. COA09-575.

Court of Appeals of North Carolina.

November 3, 2009.

*530 Scotland County Department of Social Services, by Lisa D. Blalock, for Petitioner-Appellee.

Sofie W. Hosford, for Respondent-Appellant.

Pamela Newell Williams, for Guardian ad Litem.

BEASLEY, Judge.

Respondent is the minor child's maternal grandmother. She appeals from the trial court's adjudication and disposition orders awarding physical and legal custody of T.B[1]. to his paternal grandparents. Due to insufficient information in the record to determine whether Respondent has standing to pursue this appeal, we dismiss the appeal.

T.B. was born in 2003. He lived with his mother until November 2005. There are references made to a civil court proceeding where Respondent was awarded temporary custody due to T.B.'s mother's substance abuse problems, lack of stable housing, and lack of employment. No such order is provided in the record before this Court. T.B.'s *531 father Mitchell B. has a history of substance abuse and criminal activity. During the time that T.B. lived with Respondent, T.B. regularly visited with his paternal grandmother, J. Ford, and her husband, T. Ford. Further references are made in the record that in 2007 the Fords filed a motion to intervene in the civil custody case seeking custody of T.B. Again, the record before this Court contains no such order. At some point allegations were made by Respondent that T.B. had been sexually abused by Mr. Ford, and these allegations were made known to Scotland County Department of Social Services (DSS), but the record does not reveal whether DSS or law enforcement investigated the allegations or the outcome of such investigation.

On 26 June 2008, Respondent contacted the child's guardian ad litem (GAL) with concerns that T.B. had regressed and was urinating on himself. Although Respondent informed the GAL that the behavior occurred after T.B. visited with the Fords, DSS investigated and found that the incidents only occurred at daycare after T.B. had been moved to a different classroom. When T.B. returned to his original classroom, the behaviors ceased. On 30 June 2008, Respondent reported that T.B. told her that Mr. Ford had put his "pee pee in [T.B.]'s mouth." DSS contacted law enforcement and conducted an investigation. T.B. did not reveal any specific information about the time period or location of the alleged abuse, and in fact informed the social worker that Respondent told him to report sexual abuse by Mr. Ford. Based on its investigation, DSS was unable to determine whether Mr. Ford sexually abused T.B., and therefore could not substantiate the allegation. Similarly, law enforcement did not gather enough information for a formal charge. In a telephone call on 14 July 2008, Respondent told the social worker that she allowed T.B. to live with his mother.

On 15 July 2008, DSS filed a juvenile petition alleging neglect, stating that the child "does not receive proper care supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker," and that the child "lives in an environment injurious to the juvenile's welfare." DSS was granted non-secure custody the same day, and T.B. was placed in foster care.

T.B. was placed with the Fords on 4 August 2008. On 22 August 2008, T.B.'s mother signed an Out of Home Family Services Agreement in which she agreed to: (1) submit to a psychological evaluation and follow all recommendations; (2) complete a drug assessment and submit to random drug screens; and (3) obtain suitable housing. The permanency plan at that time was reunification.

At the adjudication hearing held on 25 September 2008, all parties stipulated to neglect in that Respondent returned T.B. to his mother without notifying or consulting DSS. The trial court adjudicated T.B. as neglected and continued the matter for disposition.

At the 29 January 2009 disposition hearing the trial court ordered T.B. to be placed with the Fords. The trial court concluded that the placement was in the best interest of the child. Additionally, the court relieved DSS of its responsibility to continue reunification efforts regarding the parents and Respondent. It appears from the record that the adjudication order was initially entered on 24 October 2008, but was signed by a judge who had not presided over the matter. The trial judge who did preside over the adjudication hearing, entered an amended adjudication order on 26 March 2009. The disposition order was initially signed and filed on 19 February 2009, but the order was amended and filed on 26 March 2009 by the trial court to correct "material errors and omissions." From the amended orders, Respondent appeals.

We first address the issue of whether Respondent has standing to bring this appeal. Both Petitioner and the GAL argue that Respondent has no standing to pursue an appeal of the court's orders because she is neither a parent, a guardian, or a custodian pursuant to N.C. Gen.Stat. § 7B-1002(4) (2007). Although Respondent's brief does not address the issue of standing, we are compelled to address this issue. "`Standing is jurisdictional in nature and "[c]onsequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of [the] case are judicially *532 resolved."'" In re T.M., 182 N.C.App. 566, 570, 643 S.E.2d 471, 474 (quoting In re Miller, 162 N.C.App. 355, 357, 590 S.E.2d 864, 865 (2004)), aff'd, 361 N.C. 683, 651 S.E.2d 884 (2007). "As the party invoking jurisdiction, plaintiff [] ha[s] the burden of proving the elements of standing." Neuse River Found. v. Smithfield Foods, 155 N.C.App. 110, 113, 574 S.E.2d 48, 51 (2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351, 364 (1992)).

An appeal may be taken from an order of disposition following an adjudication of neglect, abuse, or dependency. N.C. Gen. Stat. § 7B-1001(3) (2007). Only certain parties may pursue such an appeal. Under N.C. Gen.Stat. § 7B-1002(4), a parent, appointed guardian, or custodian who is a non-prevailing party may bring an appeal. Generally, the party invoking jurisdiction has the burden of proving she has standing to pursue their claims. See Neuse River Found., 155 N.C.App. at 113, 574 S.E.2d at 51 (citation omitted). In the case sub judice, Respondent, T.B.'s maternal grandmother, is neither a parent nor an appointed guardian for purposes of this statute.

N.C. Gen.Stat. § 7B-101(8) (2007) defines "custodian" as "[t]he person or agency that has been awarded legal custody of a juvenile by a court or a person, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a court." There are places in the record where references are made of a prior civil court proceeding where Respondent was awarded temporary custody of T.B. in 2005. In the "Amended Order on Adjudication", finding of fact number 6 states, in part that:

[p]ursuant to G.S. § 7B-902. The parties have agreed to enter into a consent judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
685 S.E.2d 529, 200 N.C. App. 739, 2009 N.C. App. LEXIS 1727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tb-ncctapp-2009.