In re K.R. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-929
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF:
Madison County
Nos. 08 JA 29-30
K.R. and M.R.
Appeal by respondent from order entered 12 April 2013 by
Judge Ted McEntire in Madison County District Court. Heard in
the Court of Appeals 13 January 2014.
Anna S. Lucas for father-appellee.
Assistant Appellate Defender Joyce L. Terres for
respondent-appellant mother.
Administrative Office of the Courts, by Appellate Counsel
Tawanda N. Foster, for guardian ad litem.
HUNTER, Robert C., Judge.
Respondent, the mother of the juveniles K.R. and M.R.,
appeals from an order denying her motion for review. After
careful review, we reverse and remand.
Background
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This matter is before this Court for a second time. The
full facts of this case are set forth in unpublished opinion In
re K.R., No. COA10-1380, 2011 WL 1467660 (N.C. Ct. App. April
19, 2011).
On 25 August 2008, the Madison County Department of Social
Services (“DSS”) filed a petition alleging that M.R. was an
abused, neglected, and dependent juvenile after the juvenile had
been given a drug, Abilify, for which the juvenile did not have
a prescription. On the same date, DSS also filed a petition
alleging that M.R.’s sibling, K.R., was a neglected and
dependent juvenile based on the same facts alleged in the M.R.
petition. On 27 October 2008, the juvenile court entered an
order adjudicating the juveniles neglected, and custody was
granted to DSS. Subsequently, the juvenile court entered a
permanency planning review order in which it granted
guardianship of the juveniles to their paternal grandparents.
Respondent appealed that order, and this Court concluded that
several of the juvenile court’s findings of fact were either
unsupported by the evidence or contrary to the evidence. K.R.
at *9. Specifically, this Court held that “there was not enough
competent evidence upon which the [juvenile] court could award
guardianship of the juveniles to the paternal grandparents
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without abusing its discretion.” Id. Accordingly, we reversed
the juvenile court’s order and remanded for continuation of a
permanent plan of reunification with respondent. Id. at 9-10.
A review hearing was held on remand on 15 and 16 August
2011. The juvenile court ordered that a trial home placement of
the juveniles with respondent should commence prior to 25 August
2011. A permanency planning review hearing was held on 20
February 2012. The court found that the trial placement was
going well, and that the trial placement and reunification
efforts should continue.
On 23 April 2012, the juvenile court held a hearing and
entered an order terminating DSS’s custody of the juveniles.
The court noted that the parties had agreed to comply with the
terms of a Chapter 50 Custody Order entered in Gaston County on
9 July 2008.
On 8 February 2013, respondent filed a motion for review.
Respondent stated that the juveniles continued to reside with
her pursuant to the juvenile court’s 23 April 2012 order until
entry of a civil order in Madison County on 19 November 2012.
The civil order granted immediate primary care, custody, and
control of the juveniles to the father-appellee (“the father”).
Respondent was granted supervised visitation. Respondent
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claimed that she did not receive notice of the 19 November 2012
hearing and therefore did not appear. Respondent further
claimed that she had no knowledge of any change of custody until
the father “appeared at her door with sheriff’s deputies to
retrieve the minor children.” Along with the motion for review,
respondent stated that she was filing a Rule 60 motion in civil
district court seeking to set aside the 19 November 2012 order.
Respondent sought return of the juveniles to her primary care,
custody, and control, arguing that the civil court lacked
jurisdiction because the juvenile court had not terminated its
jurisdiction of the matter.
The juvenile court heard respondent’s motion on 25 March
2013. The court found that the juvenile court had terminated
its jurisdiction in its 23 April 2012 order. Accordingly, the
juvenile court declined to consider respondent’s motion.
Grounds for Appeal
Respondent filed written notice of appeal from the juvenile
court’s order on 26 April 2013, but the certificate of service
indicates that she did not serve the guardian ad litem or DSS.
The failure to serve a proper party is a fatal defect which
deprives this Court of jurisdiction. See N.C.R. App. P. 26(b);
In Re C.T., 182 N.C. App. 166, 167, 641 S.E.2d 414, 415
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(dismissing the father’s appeal because “failure to attach a
certificate of service to the notice of appeal is fatal”), aff’d
per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007). Respondent,
cognizant of this deficiency, has filed a petition for writ of
certiorari. In our discretion, we allow the petition.
Argument
Respondent argues that the juvenile court erred when it
determined it lacked jurisdiction to hear her motion for review.
We agree.
Whether the juvenile court had subject matter jurisdiction
is a question of law and is reviewed de novo on appeal. Powers
v. Wagner, __ N.C. App. __, __, 716 S.E.2d 354, 357 (2011). The
Juvenile Code grants our district juvenile courts “exclusive,
original jurisdiction over any case involving a juvenile who is
alleged to be abused, neglected, or dependent.” N.C. Gen. Stat.
§ 7B–200(a) (2013). “When the [juvenile] court obtains
jurisdiction over a juvenile, jurisdiction shall continue until
terminated by order of the court or until the juvenile reaches
the age of 18 years or is otherwise emancipated, whichever
occurs first.” N.C. Gen. Stat. § 7B–201(a) (2013).
In In re S.T.P., 202 N.C. App. 468, 473, 689 S.E.2d 223,
227 (2010), this Court reviewed whether the juvenile court’s
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dispositional order which placed custody of the juvenile with
his maternal grandparents had successfully terminated the
court’s jurisdiction. In its dispositional order following an
adjudication of neglect and dependency, the juvenile court
stated that the case was closed. Id. at 471, 689 S.E.2d at 226.
This Court concluded, however, that the juvenile court did not
terminate its jurisdiction merely by use of the words “Case
closed.” Id. at 472, 689 S.E.2d at 227. The Court
distinguished closing a case from terminating jurisdiction,
noting that “neither Mother nor Father were returned to their
pre-petition legal status.” Id. at 472, 689 S.E.2d at 227
(emphasis added); see also N.C. Gen. Stat. § 7B-201(b) (2013)
(“When the court’s jurisdiction terminates, whether
automatically or by court order, . . . [t]he legal status of the
juvenile and the custodial rights of the parties shall revert to
the status they were before the juvenile petition was
filed[.]”). The Court concluded that the parents had not been
returned to their pre-petition status because the juvenile
court’s order awarded custody to the maternal grandparents,
awarded limited visitation to the mother, and ordered the father
to stay off of the maternal grandmother’s property. In re
S.T.P. at 472-73, 689 S.E.2d at 227.
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In Rodriguez v. Rodriguez, 211 N.C. App. 267, 270, 710
S.E.2d 235, 240 (2011), this Court determined, sua sponte, that
the juvenile court maintained subject matter jurisdiction to
review a custody order. DSS had filed a petition alleging
abuse, neglect and dependency, and the maternal grandparents
subsequently filed a Chapter 50 action seeking custody of the
juveniles. Id. at 269, 710 S.E.2d at 237. On appeal, this
Court determined that the juvenile court had obtained
jurisdiction over the juveniles prior to the filing of the
grandparents’ complaint. Id. at 270, 710 S.E.2d at 238. This
Court further determined, however, that the juvenile court had,
in its order in which it returned physical and legal custody of
the juveniles to the mother, terminated its jurisdiction. Id.
at 273, 710 S.E.2d at 240. This Court noted that although the
juvenile court ordered that the mother should provide dental and
medical care and therapy for the juveniles, the juvenile court
did not specify any details. Id. at 271, 710 S.E.2d at 239.
This Court further determined that “[b]y relieving DSS and the
Guardian ad Litem program of responsibility as to the children
and by vacating ‘any prior custody order’ the juvenile court
seems to have indicated its intent to end its involvement with
the children entirely.” Id. at 272, 710 S.E.2d at 239. Thus,
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this Court concluded that the juvenile review order had returned
the defendant “to her status prior to the filing of the
petition[.]” Id. Consequently, this Court held that the
juvenile court had subject matter jurisdiction to consider the
plaintiffs’ custody claim because the juvenile matter had been
terminated. Id. at 273, 710 S.E.2d at 240.
Here, the juvenile court’s order is ambiguous, due in part
to its brevity. We note, however, that while the juvenile court
returned joint custody of the juveniles to respondent and the
father, the court did not relieve the guardian ad litem of any
further responsibility in the case. Cf. Rodriguez, 211 N.C.
App. at 272, 710 S.E.2d at 239. The guardian ad litem remains
appointed “until formally relieved of the responsibility by the
court.” N.C. Gen. Stat. § 7B-601(a) (2013). A guardian ad
litem appointed to represent a juvenile in accordance with N.C.
Gen. Stat. § 7B-601(a), and who has not been relieved of this
responsibility, is authorized to file a motion or petition to
terminate parental rights. N.C. Gen. Stat. § 7B-1103(a)(6)
(2011). Thus, the parties were not completely returned to their
pre-petition status. Rodriguez, 211 N.C. App. at 272, 710
S.E.2d at 239. Therefore, we hold that the juvenile court did
not terminate its jurisdiction, and the juvenile court retained
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subject matter jurisdiction to consider respondent’s motion for
review. Consequently, upon respondent’s motion for review, the
juvenile court was required to hold a review hearing. See N.C.
Gen. Stat. § 7B-906(b) (“The Court may not . . . refuse to
conduct a review hearing if a party files a motion seeking the
review.”).1 Accordingly, we reverse and remand.
Conclusion
Based on the foregoing reasons, we reverse the order and
remand for hearing.
REVERSED AND REMANDED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
1
The General Assembly has recently merged the provisions
regarding custody review hearings, N.C. Gen. Stat. § 7B–906, and
permanency planning hearings, N.C. Gen. Stat. § 7B–907, into one
provision: N.C. Gen. Stat. § 7B–906.1 (2013). 2013 Sess. Laws
129 §§ 25 and 26. As the proceedings in this matter occurred
before the amendment’s 1 October 2013 effective date, N.C. Gen.
Stat. § 7B-906 still applies.