In re: B.S., D.S. , 250 N.C. App. 370 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-582
Filed: 15 November 2016
Wake County, Nos. 14 JA 12, 13, & 14
IN THE MATTER OF: J.S., D.S., and B.S.
Appeal by respondent-mother from order entered 8 April 2016 by Judge Monica
M. Bousman in Wake County District Court. Heard in the Court of Appeals 20
October 2016.
Ellis & Winters, LLP, by Lenor Marquis Segal, for Guardian ad Litem-appellee.
Leslie Rawls for respondent-appellant.
ZACHARY, Judge.
Respondent-mother L.M. and respondent-father B.S. (“father”) are the parents
of three sons, J.S., D.S., and B.S.1 Respondent-mother is also the mother of D.M.,
whose custody is not at issue in this appeal.2 Respondent-mother appeals from the
entry of a permanency planning order that granted father legal and physical custody
of the children, with respondent-mother to have visitation. On appeal, respondent-
mother argues that in entering its permanency planning order, the trial court failed
to comply with the requirements of N.C. Gen. Stat. § 7B-1000(a) (2015). For the
1 To protect their privacy, we refer to the minor children by their initials.
2 Because D.M.’s custody is not the subject of this appeal, references in this opinion to “the
children” will refer to J.S., D.S., and B.S., unless otherwise specified.
IN RE: B.S., D.S., J.S.
Opinion of the Court
reasons that follow, we conclude that respondent-mother’s arguments lack merit and
that she is not entitled to relief.
I. Factual and Procedural History
In 2009, respondent-mother gave birth to a daughter, D.M., who has a different
father than respondent-mother’s other children. In 2011, twin boys were born to
respondent-mother and father, and in 2012 the couple had another son. In 2013, the
Wake County Department of Human Services (DHS) became involved with the family
and on 14 January 2014, DHS filed petitions alleging that all four of respondent-
mother’s children were neglected. DHS obtained nonsecure custody of the children
on 7 February 2014. On 26 February 2014, the trial court entered an order
adjudicating the children to be neglected. The parents separated and a dispositional
order was entered on 7 April 2014, continuing the children’s legal custody with DHS
and their physical placement with respondent-mother. Permanency planning orders
were entered in 2014 and 2015, which provided that the permanent plan for the
children was to be reunited with one of their parents.
In February 2015, DHS changed the physical placement of the children from
respondent-mother to father, who was living with his parents. Between February
2015 and April 2016, the children lived with their father and paternal grandparents,
but visited overnight with respondent-mother several days a week. On 8 April 2016,
the trial court entered three orders in this case: a permanency planning order, an
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Opinion of the Court
order transferring jurisdiction over the case from juvenile court to civil court, and a
civil custody order. Regarding the transfer from juvenile to civil court, we note that:
Although both juvenile proceedings and custody
proceedings under Chapter 50 are before the District Court
division, jurisdiction is conferred and exercised under
separate statutes for the two types of actions. For that
reason, we will refer to the District Court in this opinion as
either the “juvenile court” or the “civil court” to avoid
confusion. The “juvenile court” is the District Court
exercising its exclusive, original jurisdiction in a matter
pursuant to N.C. Gen. Stat. § 7B-200(a); the “civil court” is
the District Court exercising its child custody jurisdiction
pursuant to N.C. Gen. Stat. § 50-13.1, et seq.
Sherrick v. Sherrick, 209 N.C. App. 166, 169, 704 S.E.2d 314, 317 (2011). In its 8
April 2016 orders, discussed in detail below, the trial court (1) terminated the
jurisdiction of juvenile court over this case and transferred jurisdiction to civil court
for entry of a civil custody order; (2) entered a civil custody order awarding father the
legal and primary physical custody of the children and granting respondent-mother
visitation privileges; and (3) entered a permanency planning order functionally
identical to the civil custody order. On 12 April 2016, respondent-mother entered a
notice of appeal from the permanency planning order. Respondent-mother did not
appeal the civil custody order or the order transferring jurisdiction pursuant to N.C.
Gen. Stat. § 7B-911.
II. Standard of Review
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Opinion of the Court
Our review of a permanency planning order entered pursuant to N.C. Gen.
Stat. § 7B-906.1 is “limited to whether there is competent evidence in the record to
support the findings and whether the findings support the conclusions of law. The
trial court’s findings of fact are conclusive on appeal when supported by any
competent evidence, even if the evidence could sustain contrary findings.” In re J.H.,
__ N.C. App. __, __, 780 S.E.2d 228, 238 (2015) (internal quotations omitted). Factual
findings that are not challenged on appeal are deemed to be supported by the evidence
and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). “In choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B-
906.1 [(2015)], the juvenile’s best interests are paramount. We review a trial court’s
determination as to the best interest of the child for an abuse of discretion.” J.H., __
N.C. App. at __, 780 S.E.2d at 238 (2015) (internal quotation omitted).
III. Discussion
On appeal, respondent-mother acknowledges the standard of review of a
permanency planning order. However, in her appellate brief, respondent-mother does
not challenge the evidentiary support for any specific finding of fact or argue that the
trial court’s conclusions of law are not supported by its findings of fact. Nor does
respondent-mother argue that it is not in the best interest of the children for their
legal and primary physical custody to be with their father, or that the trial court
failed to follow the requirements of N.C. Gen. Stat. § 7B-906.1. Although we could
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Opinion of the Court
affirm the trial court’s order on the basis of respondent-mother’s failure to make a
viable argument challenging the permanency planning order, because of the
importance of a child custody order, we will review respondent-mother’s appellate
arguments.
On appeal, respondent-mother focuses solely upon the fact that the
permanency planning order changed the visitation schedule set out in the previous
permanency planning order, reducing respondent-mother’s visitation with the
children. Respondent-mother argues that the permanency planning order failed to
comply with N.C. Gen. Stat. § 7B-1000(a) (2015), which provides in relevant part that:
Upon motion in the cause or petition, and after notice, the
court may conduct a review hearing to determine whether
the order of the court is in the best interests of the juvenile,
and the court may modify or vacate the order in light of
changes in circumstances or the needs of the juvenile.
The plain language of § 7B-1000(a) states that it is applicable to an order
entered after a review hearing at which the trial court considers whether to modify
or vacate a previously entered order “in light of changes in circumstances or the needs
of the juvenile.” Respondent-mother devotes most of her appellate brief to an
argument that the trial court erred by failing to make findings of fact demonstrating
that there was a change in circumstances between the entry of the prior permanency
planning order and the order from which respondent-mother appealed. The premise
of respondent-mother’s argument is that entry of a permanency planning order is
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Opinion of the Court
governed by N.C. Gen. Stat. § 7B-1000. However, the permanency planning order
states, appropriately, that it is entered pursuant to N.C. Gen. Stat. § 7B-906.1, and
respondent-mother fails to articulate any legal basis for applying N.C. Gen. Stat. §
7B-1000 to a permanency planning order that was entered under N.C. Gen. Stat. §
7B-906.1. We conclude that entry of a permanency planning order is governed by
N.C. Gen. Stat. § 7B-906.1 and not by N.C. Gen. Stat. § 7B-1000.
Moreover, respondent-mother fails to acknowledge or discuss the implications
of the fact that she appealed only from the permanency planning order, and did not
appeal the order transferring jurisdiction from juvenile court to civil court, or the civil
custody order. In the 8 April 2016 order that was entered pursuant to N.C. Gen. Stat.
§ 7B-911 (2015), the trial court stated in relevant part:
2. That this Court has previously determined that there is
no longer a need for this file to remain open, [as DHS] is no
longer actively involved in this case and the jurisdiction of
this Court should terminate.
3. That the Juveniles’ status and the issues in this case are
in the nature of a private custody agreement or dispute and
there is not a need for continued State intervention on
behalf of the juvenile[s] through a Juvenile Court
proceeding.
That the Court is awarding custody to a parent.
Wherefore, the jurisdiction of this Court is hereby
terminated and the legal status of the juvenile[s] and the
custodial rights of the parties shall be governed by a civil
custody order entered pursuant to [N.C. Gen. Stat. §] 7B-
911 as follows:
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1. That a civil Order shall be entered in a new Civil
Domestic file and the Clerk is hereby directed to treat said
Order as the initiation of a civil action for custody and to
open an appropriate file. . . .
On 8 April 2016, the trial court also entered the civil custody order referenced
in its N.C. Gen. Stat. § 7B-911 order. In its custody order, the trial court concluded
that it was in the best interest of the children for father to have their sole legal
custody and primary physical custody, and for respondent-mother to have visitation
privileges. The permanency planning order entered by the trial court the same day,
from which respondent-mother has appealed, incorporates the civil custody order and
makes the same determinations regarding custody of the children, although the civil
custody order includes additional details regarding the parties’ future interactions
and the visitation schedule.
Respondent-mother does not argue that the permanency planning order
affected or invalidated the civil custody order. Respondent-mother has not appealed
from the civil custody order or from the order entered pursuant to N.C. Gen. Stat. §
7B-911, and does not argue that the trial court erred in these orders. As a result,
even if this Court were to conclude that the trial court had erred in its permanency
planning order, the civil custody order would remain in effect, mooting the effect of
respondent-mother’s challenge to the permanency planning order. Respondent-
mother does not argue that the permanency planning order might carry collateral
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Opinion of the Court
consequences such that, notwithstanding her failure to challenge the custody order,
the issue of the propriety of the permanency planning order is not moot.
We conclude that respondent-mother’s challenge to the permanency planning
order on the basis of its failure to comply with N.C. Gen. Stat. § 7B-1000 lacks merit,
and that the trial court’s entry of both an order ending the jurisdiction of juvenile
court and of a civil custody order renders moot the merits of the permanency planning
order. Accordingly, the trial court’s order is
AFFIRMED.
Judges STROUD and McCULLOUGH concur.
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