In re Phillips ( 1990 )

ARNOLD, Judge.

The issue before us is the validity of the following portions of the trial court’s order:

It is therefore ordered, adjudged, and decreed as FOLLOWS:

1. That this action be transferred to the Cumberland County District Court, Juvenile Division, for further dispositional proceedings and further monitoring of the situation of the minor child, Vera Phillips.

2. That legal and physical custody of the minor child, Vera Phillips, be, and is hereby, transferred to the Cumberland County Department of Social Services.

We hold that the trial court exceeded its authority in entering the quoted provisions of the 11 April 1989 order.

While the trial court’s order does not specify the statutes relied upon as authority, the order does contain the following conclusions which the trial judge apparently thought were a sufficient basis for the order:

2. That there has been a material and substantial change of circumstances surrounding the minor child, Vera Phillips, and her welfare and best interests, to warrant a change in the prior Orders of this Court so as to transfer this action to the Cumberland County District Court. . . .

3. That ... it is impossible for this Court to properly monitor and control the activities of [Vera] and . . . that the [Bladen DSS], and . . . the attorney advocate . . . [and] the guardian ad litem for [Vera], and the attorneys for the parents of [Vera] are further prevented from performing and carrying out their specific lawful duties.

4. That, should [Vera] need additional foster home placement away from her minor brother . . . , and since there are no such additional foster placement available in Bladen County at this time, that Cumberland County is also the more advantageous and convenient place to have jurisdiction and control of [Vera] and the action herein because such county is where the treatment facility whereat [Vera] is currently being treated and is also the county in which any additional foster placement should be made for [Vera].

First, although Vera’s hospitalization may have been a changé in circumstances warranting modification of the prior orders pursuant to N.C. Gen. Stat. § 7A-664(a), any modification must be within the court’s statutory authority. Change in circumstances does not authorize a court to exceed its statutory authority.

Second, we see no conflict between the Cumberland County District Court orders pursuant to N.C. Gen. Stat. § 122C-221 et seq. on the one hand and the continued custody of Vera by Bladen DSS and jurisdiction of her case in Bladen County on the other. The Bladen DSS initially took Vera to Cumberland Hospital for treatment and presumably saw treatment there as being in her best interest. Furthermore, the Cumberland County District Court orders pursuant to N.C. Gen. Stat. § 122C-221 et seq. merely affected Vera during her hospitalization in Cumberland County. They had no effect on her beyond her hospitalization. In fact, by the terms of Bladen’s own order of 30 March 1989, Bladen DSS was to find a suitable placement for Vera upon her discharge from the hospital.

Third, the 31 March 1989 Cumberland County order that Vera receive thirty additional days of inpatient treatment included a provision that attorneys representing any parties not interview Vera without the express approval of that court. Limiting contact with her parents’ attorneys was a legitimate condition on Vera’s continued hospitalization. Moreover, assuming that a primary purpose of interviews by her parents’ attorneys was to seek visitation with Vera, the restriction on interviews with the attorneys was consistent with Bladen’s own order of 30 March 1989, which had prohibited visits with her parents.

Fourth, that Bladen lacked a facility like Cumberland Hospital and a foster placement for Vera separate from her brother does not confer authority on the trial court to transfer her to Cumberland County. We recognize that the trial judge may simply have been trying to place Vera in the setting best equipped to treat her. This effort must be made, however, within the limits of the court’s authority.

The order itself does not reveal adequate statutory authority for the trial court’s action and our review of other statutes has likewise revealed no basis for the order. Pursuant to N.C. Gen. Stat. § 7A-523(a), the Bladen County District Court acquired jurisdiction over Vera in June 1987 when Bladen DSS initiated proceedings alleging Vera to be “neglected.” Pursuant to N.C. Gen. Stat. § 7A-524, the Bladen County District Court retained continuing jurisdiction of Vera’s case. Neither N.C. Gen. Stat. §§ 7A-523 or 7A-524 vests thé court with the authority to transfer its jurisdiction to Cumberland County District Court.

While N.C. Gen. Stat. § 7A-558(b) authorizes a judge to transfer a proceeding that was begun in a district other than a juvenile’s residence to the district where the juvenile resides, this statute is not applicable here. Vera’s legal residence when the proceeding was initiated was Bladen County, the county of her parents’ residence. See N.C. Gen. Stat. § 153A-257(a). Neither her parents’ incarceration outside Bladen County nor her hospitalization outside Bladen County affected her legal residence. See id. at (a)(2). The proceeding was begun in the county of Vera’s residence, so the transfer mechanism of N.C. Gen. Stat. § 7A-558(b) was not triggered.

Finally, N.C. Gen. Stat. § 7A-647, entitled “Dispositional alternatives for delinquent, undisciplined, abused, neglected, or dependent juvenile,” does not authorize a transfer to Cumberland DSS.

The 11 April 1989 order of the Bladen County District Court is

Reversed.

Judges JOHNSON and Orr concur.