In Re ZJTB

645 S.E.2d 206
CourtCourt of Appeals of North Carolina
DecidedJune 5, 2007
DocketCOA06-1381
StatusPublished

This text of 645 S.E.2d 206 (In Re ZJTB) 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 ZJTB, 645 S.E.2d 206 (N.C. Ct. App. 2007).

Opinion

645 S.E.2d 206 (2007)

In the Matter of Z.J.T.B., Z.J.W., E.R.L.B., Minor Children.

No. COA06-1381.

Court of Appeals of North Carolina.

June 5, 2007.

Robert W. Ewing, Winston-Salem, for respondent-mother-appellant.

No brief filed for petitioner-appellee Wilkes County Department of Social Services.

*208 JACKSON, Judge.

C.L.W. ("respondent"), mother of the minor children Z.J.T.B., Z.J.W., and E.R.L.B.,[1] appeals from a permanency planning order filed on 17 July 2006 that ceased further efforts toward reunification and established a permanent plan of adoption.[2] For the reasons stated herein, we vacate the trial court's order and remand for additional findings of fact.

On 12 November 2004, the Wilkes County Department of Social Services ("DSS") filed petitions alleging that Z.J.T.B. and Z.J.W. were neglected and abused. On 15 August 2005, DSS presented evidence that Z.J.T.B., who was three months old at the time the petitions were filed, had numerous fractures on his body, including fractures to his ribs, clavicle, and tibia. DSS further presented evidence that Z.J.T.B.'s injuries were the result of being physically abused. Z.J.W. showed no signs of physical injuries, and DSS presented no evidence of abuse with respect to Z.J.W. The trial court found that Z.J.T.B. and Z.J.W. resided with respondent and Z.J.T.B.'s father[3] and that "[s]ome adult caretaker in the home . . . physically abused Z[.J.T.B.]." Both respondent and Z.J.T.B.'s father, however, professed ignorance of the cause of Z.J.T.B.'s injuries and denied involvement in the same. Subsequently, the trial court (1) adjudicated Z.J.T.B. abused and neglected; (2) adjudicated Z.J.W. neglected; and (3) concluded that it was contrary to the welfare of either child to return to respondent at that time.

Z.J.T.B. and Z.J.W. were placed with their maternal grandparents, and at a review hearing on 12 December 2005, the trial court noted that despite being permitted extensive visitation with her children, respondent did not "avail[] herself of all of the opportunities which she . . . had to visit the children while they were in her mother's home." The trial court found as fact that respondent has "intellectual limitations" and "receives some type of disability benefit for these limitations." The trial court further found that "the maternal grandmother requested that the children be removed from her home due to health concerns as well as increasing conflict between the grandmother and the mother of the children." Consequently, the children were placed in a foster home, but the trial court noted that they were "doing well."

On 17 April 2006, the trial court entered an order from a permanency planning review hearing, once again questioning respondent's credibility and finding that "[n]either parent has admitted responsibility for the injuries suffered by Z[.J.T.B.]. The parents have given conflicting explanations . . . [and] [e]ach parent has given one or more possible explanations for Z[.J.T.B.]'s injuries; and that these explanations have changed over time." The court reiterated that respondent "is of limited intelligence" and further noted that she "has [a] history of suicidal statements . . . [and] of abusing prescription drugs." Additionally, the court found that respondent refused therapy and treatment recommended to her by DSS.

On 22 May 2006, the trial court held another permanency planning review hearing, and by order filed 17 July 2006, the trial court found that because of respondent's lack of progress and because of the lack of suitable placement with any relative, return of either the minor children was not possible within six months. Therefore, the trial court (1) concluded that adoption was the appropriate permanent plan; and (2) relieved DSS from *209 the requirement of pursuing reasonable efforts to eliminate the need to place the minor children with respondent. Respondent filed timely notice of appeal from this order.

Preliminarily, we note that on 9 February 2007, the trial court entered an order terminating respondent's parental rights. Our Supreme Court has held that the "pending appeal of a custody order does not deprive a trial court of jurisdiction over termination proceedings," In re R.T.W., 359 N.C. 539, 542, 614 S.E.2d 489, 491 (2005), and that the court's entry of a termination order while an appeal is pending from a permanency planning order "necessarily renders the pending appeal moot." Id. at 553, 614 S.E.2d at 498; see also In re Stratton, 159 N.C.App. 461, 464, 583 S.E.2d 323, 325 (holding that an order terminating parental rights rendered moot an appeal from an initial adjudication and disposition), appeal dismissed and disc. rev. denied, 357 N.C. 506, 588 S.E.2d 472 (2003).

Subsequent to our Supreme Court's decision in R.T.W., however, the General Assembly amended North Carolina General Statutes, section 7B-1003(b) to restrict the scope of the trial court's jurisdiction while an appeal is pending under Chapter 7B. Specifically, the amendment provides that "[p]ending disposition of an appeal, . . . the trial court shall . . . [c]ontinue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes." N.C. Gen.Stat. § 7B-1003(b)(1) (2005) (emphasis added). Article 11, in turn, governs the termination of parental rights, and pursuant to section 7B-1101, "[t]he [district] court has exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights." N.C. Gen.Stat. § 7B-1101 (2005). Thus, "pending disposition of an appeal, the trial court no longer continues to exercise jurisdiction over termination proceedings." In re A.B., ___ N.C.App. ____, ____ n. 2, 635 S.E.2d 11, 14 (2006).

As expressly provided, the statutory amendment "applies to petitions or actions filed on or after [1 October 2005]." 2005 N.C. Sess. Laws ch. 398, § 19 (emphases added); see also A.B., ____ N.C.App. at ____ n. 2, 635 S.E.2d at 14. The amendment, however, does not exempt petitions filed in actions initiated prior to 1 October 2005. It is well-established that "[o]ur General Assembly `within constitutional limitations, can fix and circumscribe the jurisdiction of the courts of this State.'" In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (quoting Bullington v. Angel, 220 N.C. 18, 20, 16 S.E.2d 411, 412 (1941)). In effect, the legislature has divested trial courts of jurisdiction over petitions to terminate filed on or after 1 October 2005 when there is a pending appeal, regardless of when the initial action was commenced. So, "[t]o paraphrase a biblical quotation, that which the legislature giveth, so may it taketh away." Alterman Transp. Lines v. State, 405 So.2d 456, 460 (Fla.Dist. Ct.App. 1981) (per curiam).

In the case sub judice, the initial juvenile petitions alleging abuse and neglect were filed on 12 November 2004, but the petitions to terminate respondent's parental rights were filed on 19 July 2006. As the statutory amendments to section 7B-1003(b) expressly apply to petitions filed on or after 1 October 2005, the amendments are applicable here.

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Bluebook (online)
645 S.E.2d 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zjtb-ncctapp-2007.