In re E.W.P. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitte d in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1114
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
Brunswick County
Nos. 11 JA 125-26
E.W.P. and J.W.P.
Appeal by respondent-father from orders entered 12 July
2013 by Judge Sherry Dew Prince in Brunswick County District
Court. Heard in the Court of Appeals 14 April 2014.
Jess, Isenberg & Thompson, by Elva L. Jess, for petitioner-
appellee Brunswick County Department of Social Services.
Mary McCullers Reece for respondent-appellant father.
Kerner Law Firm, by Robert C. Kerner, Jr., for guardian ad
litem (no brief).
Ervin, Judge.
Respondent-Father Jonathan P. appeals from permanency
planning orders entered by the trial court which awarded
guardianship of E.W.P. and J.W.P.1 to their paternal grandmother,
Jeanie K., and paternal aunt, Wendy D. On appeal, Respondent-
Father contends that the trial court erred by failing to adopt a
1
E.W.P and J.W.P will be referred to throughout the
remainder of this opinion as “Enid” and “Jake,” pseudonyms used
for ease of reading and to protect the juveniles’ privacy.
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specific plan under which Respondent-Father was allowed to visit
Enid and Jake and by dispensing with the necessity for further
periodic review proceedings without making the statutorily
required findings of fact. After careful review of Respondent-
Father’s challenges to the trial court’s orders in light of the
record and the applicable law, we conclude that the trial
court’s orders should be reversed and that this case should be
remanded to the Brunswick County District Court for further
proceedings not inconsistent with this opinion.
I. Factual Background
On 6 September 2011, the Brunswick County Department of
Social Services filed petitions alleging that Enid and Jake were
neglected and dependent juveniles and obtained the entry of
orders taking the children into nonsecure custody. At that
time, Enid was twenty months old and Jake was nine months old.
In addition, J.A.W., who was Respondent-Father’s daughter from
an earlier marriage, lived with the family.2 According to the
allegations advanced in the petitions, both children were
developmentally delayed as a result of the environment in which
they lived; the children’s parents failed to provide them with
adequate medical care, food, and diapers; and Jake had been
2
J.A.W. will be referred to throughout the remainder of this
opinion as “Joan,” a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
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diagnosed as failing to thrive. Although the children were
originally placed in a kinship placement with their paternal
grandmother on 11 August 2011, they were moved to a licensed
foster home on 16 September 2011.
On 19 October 2011, the trial court entered an order
adjudicating Jake, Enid, and Joan to be neglected and dependent
juveniles. In a subsequent dispositional order, the trial court
determined that the children should remain in DSS custody and
ordered Respondent-Father and Respondent-Mother Margaret P. to
execute and comply with case plans. On 28 June 2012, the trial
court entered an order providing that DSS was no longer required
to make efforts to reunify Enid and Jake with their parents and
changed the permanent plan for Enid and Jake from reunification
with their parents to placement with a court-approved care
giver. Although Enid and Jake had moved back to their
grandmother’s home on 1 August 2012, they had been visiting her
regularly before that date.
The case came on for a permanency planning hearing on 12
June 2013. In two orders entered on 12 July 2013, the trial
court found that it was not possible for Enid and Jake to return
home within the next six months. As a result, the trial court
made Jeanie K. and Wendy D. the children’s guardians given that
the children had been living with Jeanie K., that Wendy D. lived
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next door to Jeanie K., and that Wendy D. was willing to share
the responsibility of caring for the children with Jeanie K. In
addition, the trial court relieved DSS and the guardian ad litem
of the necessity for having further involvement with the
children, concluded that there was no need for continued
monitoring of the children’s placement, and released Respondent-
Father’s counsel from any further obligation to represent
Respondent-Father. Respondent-Father noted an appeal to this
Court from the trial court’s orders.
II. Substantive Legal Analysis
A. Mootness
In his brief, Respondent-Father argues that the trial court
erred by (1) failing to adopt a specific plan governing his
visitation with the children and (2) dispensing with the
necessity for further periodic review proceedings without making
the findings of fact required by N.C. Gen. Stat. § 7B-906(b).
In its sole response to Respondent-Father’s contentions, DSS
argues that the trial court obviated the necessity for this
Court to address the issues raised by Respondent-Father by
convening a new permanency planning hearing and entering new
permanency planning orders on 12 December 2013 which contained
findings of fact and ordering language addressing the issues
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that Respondent-Father has raised on appeal.3 We do not find
DSS’ argument persuasive.
Although DSS does not couch its response to Respondent-
Father’s challenge to the trial court’s orders in mootness
terms, the essential thrust of its position is that, by
convening new permanency planning hearings and entering new
permanency planning orders after the filing of Respondent-
Father’s brief with this Court, the trial court has rendered
Respondent-Father’s challenge to the original permanency
planning orders moot. According to well-established North
Carolina law, “[a] case is ‘moot’ when a determination is sought
on a matter which, when rendered, cannot have any practical
effect on the existing controversy.” Roberts v. Madison Cnty.
Realtors Assn., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)
(citing Black’s Law Dictionary 1008 (6th ed. 1990)). As a
general proposition, “‘[w]henever, during the course of
litigation it develops that the relief sought has been granted
or that the questions originally in controversy between the
parties are no longer at issue, the case should be dismissed,
for courts will not entertain or proceed with a cause merely to
determine abstract propositions of law.’” Dickerson Carolina,
Inc. v. Harrelson, 114 N.C. App. 693, 697-98, 443 S.E.2d 127,
3
DSS included the revised orders as an appendix to its
brief.
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131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994)
(quoting In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912
(1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979)).
In the course of determining whether an appeal should be
dismissed as moot, “[c]onsideration of matters outside the
record is especially appropriate.” State ex rel. Util. Comm’n
v. S. Bell Telephone & Telegraph Co., 289 N.C. 286, 288, 221
S.E.2d 322, 324 (1976). Thus, we must, as a preliminary matter,
address the extent to which the trial court appropriately
addressed and rectified Respondent-Father’s concerns with
respect to the original permanency planning orders by entering
the 12 December 2013 orders.
The fundamental problem with DSS’ mootness argument is that
the trial court lacked the authority to enter the 12 December
2013 orders. According to N.C. Gen. Stat. § 7B-1003(b), a trial
court has the authority, pending appeal, to “[c]ontinue to
exercise jurisdiction and conduct hearings under [the provisions
of Chapter 7B of the General Statutes dealing with abused,
neglected, and dependent juveniles] with the exception of [those
provisions dealing with the termination of parental rights]” and
“[e]nter orders affecting the custody or placement of the
juvenile as the court finds to be in the best interests of the
juvenile.” As this Court has previously noted, “N.C. Gen. Stat.
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§ 7B-1003 and its predecessors were intended to authorize
continued jurisdiction for a limited purpose: protection of the
child pending appeal” and, for that reason, “limit[] the trial
court’s authority to the traditionally-recognized need to
protect children pending appeal.” In re K.L., 196 N.C. App.
272, 278-79, 674 S.E.2d 789, 793-94 (2009). The clear
motivation underlying the entry of the 12 December 2013 orders
was to address and attempt to rectify errors that Respondent-
Father claimed to exist in the original permanency planning
orders in his brief before this Court, a purpose that has no
direct bearing upon the need to protect children during the
pendency of an appeal. As a result, we conclude that, since the
trial court lacked the authority to enter the 12 December 2013
orders, the mootness argument advanced by DSS has no merit, and
we must proceed to address Respondent-Father’s challenges to the
trial court’s permanency planning orders.
B. Validity of Respondent-Father’s Challenges
to the Trial Court’s Permanency Planning Orders
1. Lack of Specific Visitation Plan
“Any dispositional order . . . under which the juvenile’s
placement is continued outside the home shall provide for
appropriate visitation as may be in the best interests of the
juvenile and consistent with the juvenile’s health and safety.”
N.C. Gen. Stat. § 7B-905(c) (2011). In the orders that are
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before us for review in this case, the trial court provided
“[t]hat any visitation between the minor child[ren] and [their]
parents shall be in the discretion of the guardian. . . .”
According to Respondent-Father, the visitation provisions of the
trial court’s permanency planning orders failed to comply with
the requirements of N.C. Gen. Stat. § 7B-905(c) because those
orders included neither a specific visitation plan nor a finding
that Respondent-Father was unfit to visit with his children.
Respondent-Father’s contention has merit.
“The awarding of visitation of a child is an exercise of a
judicial function, and a trial court may not delegate this
function to the custodian of a child.” In re E.C., 174 N.C.
App. 517, 522, 621 S.E.2d 647, 652 (2005).
In the absence of findings that the parent
has forfeited [his] right to visitation or
that it is in the child’s best interest to
deny visitation “the court should safeguard
the parent’s visitation rights by a
provision in the order defining and
establishing the time, place[,] and
conditions under which such visitation
rights may be exercised.”
Id. at 522-23, 621 S.E.2d at 652 (alteration in original)
(quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844,
849 (1971)). In this case, the trial court failed to either
find that Respondent-Father had forfeited his right to visit
with Enid and Jake or that Respondent-Father would be entitled
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to visit with Enid and Jake according to certain judicially
specified terms and conditions. Instead, the trial court left
visitation between Respondent-Father, on the one hand, and Enid
and Jake, on the other hand, in the discretion of the guardians,
an outcome that we have previously found to be contrary to N.C.
Gen. Stat. § 7B-905(c). See id. at 521-23, 621 S.E.2d at 651-52(holding that the trial court erred by authorizing the parent to
visit with the children in the discretion of the appointed
guardian). As a result, we reverse the visitation provisions of
the challenged portion of the trial court’s permanency planning
orders and remand this case to the Brunswick County District
Court for the entry of new permanency planning orders containing
appropriate findings, conclusions, and ordering clauses
describing the extent to which and circumstances under which
Respondent-Father is entitled to visit with Enid and Jake
consistently with the provisions of N.C. Gen. Stat. § 7B-905.1.4
2. Necessity for Future Review Proceedings
4
In 2013 N.C. Sess. L. c. 129, s. 23, 24, and 41, the
General Assembly repealed the visitation-related provisions of
N.C. Gen. Stat. § 7B-905(c) and replaced them with the
provisions of N.C. Gen. Stat. § 7B-905.1. As a result of the
fact that N.C. Gen. Stat. § 7B-905.1 governs the issues
addressed in this section of our opinion for purposes of
“actions filed or pending on or after” 1 October 2013, the
proceedings to be held on remand with respect to this issue must
be governed by N.C. Gen. Stat. § 7B-905.1 rather than former
N.C. Gen. Stat. § 7B-905(c).
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Finally, Respondent-Father argues that the trial court
erred by dispensing with the necessity for future review
hearings without making the findings of fact required by N.C.
Gen. Stat. § 7B-906(b). According to N.C. Gen. Stat. § 7B-
906(b):
the court may waive the holding of review
hearings required by subsection (a) of this
section, may require written reports to the
court by the agency or person holding
custody in lieu of review hearings, or order
that review hearings be held less often than
every six months, if the court finds by
clear, cogent, and convincing evidence that:
(1) The juvenile has resided with a
relative or has been in the custody of
another suitable person for a period of
at least one year;
(2) The placement is stable and
continuation of the placement is in the
juvenile’s best interests;
(3) Neither the juvenile’s best interests
nor the rights of any party require
that review hearings be held every six
months;
(4) All parties are aware that the matter
may be brought before the court for
review at any time by the filing of a
motion for review or on the court’s own
motion; and
(5) The court order has designated the
relative or other suitable person as
the juvenile’s permanent caretaker or
guardian of the person.
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Any failure to make the findings required by N.C. Gen. Stat. §
7B-906(b) necessitates an award of appellate relief. In re
R.A.H., 182 N.C. App. 52, 61-62, 641 S.E.2d 404, 410 (2007).
In the challenged permanency planning orders, the trial
court relieved DSS and the GAL of any responsibility for further
involvement in the case, concluded that there was no need for
further monitoring of the children’s placement, and released
Respondent-Father’s counsel. As a result, the ultimate effect
of the challenged permanency planning orders was to end the
present case and dispense with the necessity for future periodic
review hearings. The trial court did not, however, make
findings addressing all of the criteria specified in N.C. Gen.
Stat. § 7B-906(b). More specifically, although the trial court
detailed the stability of the children’s placement with Jeanie
K. and found that placement of the children with Jeanie K. and
Wendy D. was in the children’s best interests, the children had
only been in that placement for eleven months at the time that
the permanency planning order was entered. As a result, the
trial court failed to adequately address the criteria specified
in N.C. Gen. Stat. § 7B-906(b)(1). In addition, the trial court
failed to make findings regarding the issues posited in N.C.
Gen. Stat. §7B-906(b)(3), which relates to the issue of whether
the juvenile’s best interests or the rights of any party require
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that additional review hearings be held in the future at six
month intervals, and N.C. Gen. Stat. § 7B-906(b)(4), which
addresses the extent to which the parties are aware that future
review proceedings can be held on the court’s own motion or as
the result of a motion filed by a party to the proceeding. As a
result, we reverse the challenged permanency planning orders and
remand this case to the Brunswick County District Court for the
entry of new orders containing appropriate findings of fact,
conclusions of law, and ordering clauses relating to the issue
of whether additional periodic review proceedings should be
held. See R.A.H., 182 N.C. App. at 62, 641 S.E.2d at 410.5
III. Conclusion
Thus, for the reasons set forth above, we conclude that the
trial court failed to adequately address the issue of
Respondent-Father’s visitation with Enid and Jake and to make
findings of fact and conclusions of law adequately addressing
the issues relevant to a determination that additional periodic
review proceedings need not be held in this matter. As a
5
The General Assembly repealed former N.C. Gen. Stat. § 7B-
906, 2013 N.C. Sess. L. c. 129, s. 25, and enacted N.C. Gen.
Stat. § 7B-906.1, 2013 N.C. Sess. L. c. 129, s. 26, “effective
October 1, 2013, and [applicable] to actions filed or pending on
or after that date.” 2013 N.C. See. L. c. 129, s. 41. As a
result of the fact that the issues formerly governed by N.C.
Gen. Stat. § 7B-906(b) are now addressed in N.C. Gen. Stat. §
7B-906.1(n), the proceedings on remand should be conducted in
accordance with N.C. Gen. Stat. § 7B-906.1(n), which differs
only slightly from former N.C. Gen. Stat. § 7B-906(b).
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result, the trial court’s orders should be, and hereby are,
reversed and this case should be, and hereby is, remanded to the
Brunswick County District Court for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).