In re E.E.L. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-805
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
Forsyth County
No. 12 JA 03
E.E.L.
Appeal by respondent-mother from order entered 15 April
2013 by Judge Denise S. Hartsfield in Forsyth County District
Court. Heard in the Court of Appeals 27 January 2014.
No brief filed for petitioner-appellee Forsyth County
Department of Social Services.
Levine & Stewart, by James E. Tanner III, for respondent-
appellant mother.
Womble Carlyle Sandridge & Rice, by Murray C. Greason, III,
for guardian ad litem.
HUNTER, Robert C., Judge.
Respondent appeals from an order that granted custody of
her minor child, E.E.L. (“Eugene”), to the child’s father and
stepmother, terminated the juvenile court’s jurisdiction, and
transferred the matter to a Chapter 50 civil custody case.
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Because the trial court failed to find that there is not a need
for continued intervention by the State on behalf of the
juvenile, we vacate the order and remand this matter for further
proceedings.
Background
The Forsyth County Department of Social Services (“DSS”)
filed a juvenile petition alleging Eugene was an abused,
neglected, and dependent juvenile. DSS assumed non-secure
custody of Eugene, and eventually placed him in a therapeutic
foster home. At the time of the filing of the petition, Eugene
had been living with respondent and his maternal grandmother.
Eugene’s father was married to another woman and was not able to
provide a home for Eugene.
After a hearing on 30 May 2012, the trial court entered an
order adjudicating Eugene to be a neglected juvenile. The court
continued custody of Eugene with DSS and ordered respondent to
comply with the recommendations of her psychological evaluation
and parenting capacity assessment, successfully complete
parenting classes, and otherwise comply with the terms of her
service agreement with DSS. The court also ordered Eugene’s
father to complete a parenting capacity assessment and
psychological evaluation and comply with all recommendations,
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attend and successfully complete the “Strong Fathers Program,”
and otherwise comply with the terms of his service agreement.
By order entered 3 January 2013, the trial court set the
permanent plan for Eugene as reunification with his father with
a concurrent plan of custody with his father. The court
continued custody of Eugene with DSS, but sanctioned a trial
home placement of Eugene with his father. The trial placement
went well, and by order entered 15 April 2013, the court granted
custody of Eugene to his father. The court released DSS and
Eugene’s guardian ad litem from further responsibility in the
case, set forth a visitation schedule for respondent, entered a
Chapter 50 civil custody order, and terminated its jurisdiction
over the juvenile case. From this order, respondent appeals.
Argument
Respondent now argues the trial court erred in awarding
custody of Eugene to his father and terminating its jurisdiction
over the juvenile case. Respondent contends that the trial
court failed to make the necessary finding that there is not a
need for continued State intervention on behalf of the juvenile
through a court proceeding. The guardian ad litem for Eugene on
appeal concedes that we must reverse the trial court’s order on
this basis.
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A trial court must find that “[t]here is not a need for
continued State intervention on behalf of the juvenile through a
juvenile court proceeding” before it may enter a civil custody
order and terminate its jurisdiction over a juvenile case. N.C.
Gen. Stat. § 7B-911(c)(2)(a) (2011). Here, the trial court’s
order is devoid of the required ultimate finding that there is
not a need for continued State intervention on Eugene’s behalf.
Nor are there sufficient findings from which this Court could
infer that continued State intervention on Eugene’s behalf is
unnecessary. See In re A.S., 182 N.C. App. 139, 144, 641 S.E.2d
400, 404 (2007) (affirming a trial court’s order entered under
section 7B-911 where the court failed to explicitly find that
further State intervention was unneeded, but found: (1) the
respondent parents were able to coordinate visitations between
themselves; (2) the parents both had “suitable homes for
visitation and/or custody of [the] . . . children[;]” and (3)
the mother was “capable of properly supervising and disciplining
the . . . children and keeping them safe while in her care and
custody.”). Accordingly, we vacate the trial court’s order and
remand this matter for entry of an order with findings of fact
in compliance with N.C. Gen. Stat. § 7B-911(c)(2)(a). Sherrick
v. Sherrick, 209 N.C. App. 166, 172, 704 S.E.2d 314, 319 (2011)
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(“Although it is permissible for the court to enter one order
which both terminates juvenile court jurisdiction and serves as
the ‘civil custody order’ . . . such an order still must include
the proper findings of fact and conclusions of law required for
each component of the order.”); In re J.B., 197 N.C. App. 497,
502, 677 S.E.2d 532, 535 (2009) (holding the trial court
improperly terminated its jurisdiction over a juvenile case due
in part to the court’s failure to “find that there was no longer
a need for continued State intervention on behalf of [the
juvenile] in accordance with [N.C. Gen. Stat. §] 7B-
911(c)(2)(a)”).
Respondent further argues that given her cognitive
limitations the evidence could not support such a finding.
Additionally, respondent contends that State intervention is
necessary to monitor the implementation of the visitation plan
set forth by the trial court, because Eugene’s stepmother would
have the discretion to terminate respondent’s visitation with
Eugene and because the stepmother had previously been
antagonistic toward visitation between respondent and Eugene.
However, because we are remanding this matter for the trial
court to comply with the mandate of N.C. Gen. Stat. § 7B-
911(c)(2)(a), we need not address respondent’s arguments that
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continued State intervention on behalf of Eugene is necessary.
We leave it to the discretion of the trial court as to whether
or not it receives additional evidence in this matter.
Conclusion
Based on the foregoing reasons, we vacate the trial court’s
order and remand for the trial court to comply with the mandate
of N.C. Gen. Stat. § 7B-911(c)(2)(a).
Vacated and remanded.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).