In re B.W. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disf avored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-847
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF:
B.W., K.T., and A.W. Durham County
Nos. 12 JA 174—76
Appeal by respondent from order entered 2 May 2013 by Judge
William A. Marsh, III, in Durham County District Court. Heard
in the Court of Appeals 13 January 2014.
Assistant Durham County Attorney Robin K. Martinek for
petitioner-appellee Durham County Department of Social
Services.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for
respondent-appellant father.
Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad
litem.
BRYANT, Judge.
Where respondent received adequate notice of a permanency
planning hearing to be conducted and the trial court then
combined an initial dispositional hearing with a permanency
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planning hearing, the trial court did not err pursuant to our
Juvenile Code.
Respondent-father appeals from the trial court’s
adjudication and disposition order in which Billy, Karl, and
Andy1 were adjudicated neglected and Billy and Karl were
adjudicated abused. The Durham County Department of Social
Services (“DSS”) became involved with this family on 29 July
2011 when it received a report that respondent physically abused
Billy and Karl, and hit and beat the children’s mother in the
children’s presence. On 24 August 2011, DSS substantiated the
case for improper discipline and neglect. On 7 September 2011,
the children were placed in the home of the maternal
grandparents as part of a safety plan with DSS. The children
have been in the home of their maternal grandparents since that
date.
The mother obtained a domestic violence protective order
(“DVPO”) against respondent in October 2011. However, within
weeks the mother had the DVPO set aside because she was “working
things out” with respondent. Respondent and the mother were
referred to services related to parenting classes, psychological
evaluations, and individual and couples therapy. Respondent was
1
Billy, Karl and Andy are pseudonyms used to protect the
identities of the juveniles pursuant to N.C.R. App. P. 3.1(b).
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also referred to services for anger management. Respondent and
the mother completed parenting classes but made minimal progress
in completing the other services.
On 30 March 2012, DSS received another report in which the
children disclosed several incidents of abuse by respondent.
The reporter stated that the children disclosed that respondent
“held their heads under water and has hit them in their faces
several times.” DSS substantiated the abuse.
On 14 September 2012, DSS filed a juvenile petition
alleging all three children were neglected. The petition also
alleged that Billy and Karl were abused. The trial court
conducted an adjudication hearing on 15 and 19 February and 12
March 2013. At the conclusion of the hearing, the trial court
determined that the children were abused and neglected. The
trial court then conducted a combined disposition and permanency
planning hearing. On 2 May 2012, the trial court entered its
order adjudicating all three children neglected, and Billy and
Karl abused. The trial court awarded guardianship of Billy and
Andy to their maternal grandparents, and guardianship of Karl to
his paternal grandmother. Respondent appeals.2
2
The order also terminated the parental rights of the juveniles’
mother and L.T., the legal husband of the mother and legal
father to Karl and Andy, but neither parent is a party to this
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_______________________________
As an initial matter, we address the issue of whether
respondent has standing to appeal as to Karl and Andy. The
mother’s husband, L.T., is the legal father of Karl and Andy.
Therefore, DSS argues that respondent is neither a parent nor
guardian of Karl and Andy. Similarly, the guardian ad litem
(“GAL”) argues that respondent is neither a parent, guardian, or
custodian of either child.
Under the Juvenile Code, proper parties to appeal are as
follows: “A parent, a guardian appointed under G.S. 7B-600 or
Chapter 35A of the General Statutes, or a custodian as defined
in G.S. 7B-101 who is a nonprevailing party.” N.C. Gen. Stat. §
7B-1002(4) (2011). A custodian is defined in part as “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.” N.C. Gen. Stat. § 7B-101(8)
(2011). In this case, prior to their removal, Karl and Andy
resided with their mother and respondent. In fact, DSS alleged
in the juvenile petition that respondent “acted as a parent or
caretaker for all the children.” Thus, we conclude that
appeal.
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respondent was a custodian of Karl and Andy, and therefore has
standing to appeal pursuant to section 7B-1002(4).
On appeal, respondent argues that “[i]t is readily apparent
under [the Juvenile Code] that the trial court is not authorized
to combine a permanency planning hearing with an initial
dispositional hearing and that, consequently, the trial court is
not authorized to adopt and implement a permanent plan as an
initial disposition.” Respondent contends this Court previously
reached this conclusion in In re D.C., 183 N.C. App. 344, 644
S.E.2d 640 (2007).
Section 7B-907 [of the Juvenile Code]
sets forth specific rules for giving “notice
of the hearing and its purpose to the
parent.” “At the conclusion of the hearing,
if the juvenile is not returned home, the
court shall consider” six statutorily
enumerated criteria and “make written
findings regarding those that are relevant.”
Id. at 355, 644 S.E.2d at 646 (quoting N.C. Gen. Stat. § 7B-
907(b)). In D.C., this Court reversed the portion of the trial
court’s order awarding guardianship because the respondent did
not receive the statutorily required notice and the trial court
failed to make the findings mandated by N.C.G.S. § 7B-907.
Moreover, in In re S.C.R., __ N.C. App. __, 718 S.E.2d 709
(2011), “this Court has previously held that ‘N.C. Gen.[]Stat.
§§ 7B-507 and 907 do not permit the trial court to enter a
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permanent plan for a juvenile during disposition’ without the
statutorily required notice for a permanency planning hearing.”
Id. at __, 718 S.E.2d at 713 (quoting In re D.C., 183 N.C. App.
344, 356, 644 S.E.2d 640, 646 (2007)). The Court in S.C.R. held
that it was error for the trial court to authorize the permanent
plan at disposition without the statutorily required notice.
Id.
In present case, the “Notice of Hearing” provided:
“Following adjudication, the matter will proceed to disposition
and permanency planning hearing for this matter.” Thus, the
parties received notice as to the permanency planning hearing.
In fact, respondent concedes that he received notice as to the
permanency planning hearing. Respondent further concedes that
the trial court made the findings mandated by N.C.G.S. 7B-
907(b). Furthermore, at the conclusion of the permanency
planning hearing, the trial court “may appoint a guardian of the
person for the juvenile pursuant to G.S. 7B-600 . . . .” N.C.
Gen. Stat. § 7B-907(c) (2011). Accordingly, the trial court did
not err in adopting and implementing the permanent plan of
guardianship at the initial disposition hearing. The trial
court’s order is affirmed.
Affirmed.
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Judges HUNTER, Robert C., and STEELMAN concur.
Report per Rule 30(e).