In re: J.K.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-823
Filed: 4 April 2017
Cumberland County, No. 14 JA 392
IN THE MATTER OF: J.K.
Appeal by respondent-mother from order entered 17 May 2016 by Judge Cheri
L. Siler-Mack in District Court, Cumberland County. Heard in the Court of Appeals
13 March 2017.
Christopher L. Carr, for petitioner-appellee Cumberland County Department of
Social Services and Beth A. Hall, for guardian ad litem.
Robert W. Ewing for respondent-appellant-mother.
STROUD, Judge.
Respondent-mother appeals from a permanency planning order and a custody
order, both entered the same day, both of which grant legal and physical custody of
her daughter to respondent-father. We remand the permanency planning order for
correction of a clerical error and reverse and remand the custody order since it does
not comply with the requirements of North Carolina General Statute § 7B-911 for
termination of juvenile court jurisdiction and entry of a civil custody order enforceable
and modifiable under North Carolina General Statute Chapter 50. We therefore
remand to the trial court for entry of a new order in accord with North Carolina
General Statute § 7B-911, if such an order is still appropriate, or for entry of any
IN RE: J.K.
Opinion of the Court
other order as needed if circumstances have changed such that termination of
juvenile court jurisdiction is no longer appropriate.
I. Background
On 29 September 2014, the Cumberland County Department of Social Services
(“DSS”) filed a juvenile petition alleging that one-year-old Jennifer1 was neglected
and dependent. According to the petition, DSS received two child protective services
referrals in September of 2014. Respondent-mother had a history of problems due to
her mental illness, and she failed to take her medication as prescribed. On 28
September 2014, respondent-mother was admitted to Cape Fear Valley Medical
Center because she was having auditory and visual hallucinations; this was
respondent-mother’s second hospital admission in one month due to the same issues.
Shortly after her admission to the hospital, respondent-mother tested positive for
marijuana. At that time, DSS was unable to locate any suitable relatives to provide
temporary care and supervision for Jennifer, so DSS took Jennifer into nonsecure
custody. On 1 December 2014, the trial court had a hearing regarding the nonsecure
custody order; the trial court ordered “[t]hat the juvenile shall continue to be placed
in the home with the Respondent Father and Paternal Grandmother.”2 On 18 August
2015, the trial court entered an order adjudicating Jennifer dependent.
1 A pseudonym is used to protect the juvenile’s privacy and for ease of reading.
2 The December 2014 order was not actually entered—signed and filed – until 22 April 2016,
nearly two years later.
-2-
IN RE: J.K.
Opinion of the Court
On 17 February 2016, the trial court held a permanency planning hearing. On
17 May 2016, the trial court entered two orders based upon the 17 February 2016
hearing. First, the trial court entered an order entitled “Permanency Planning Order
and Order to Close Juvenile Court Case File” (“Permanency Planning Order”).
(Original in all caps.) In the Permanency Planning Order the trial court made
findings of fact regarding both respondents’ and the juvenile’s circumstances. The
trial court also found as follows:
23. That the permanent plan of reunification with the
Respondent Father has been achieved.
24. That a termination of parental rights should not be
pursued in this matter inasmuch as the permanent
plan of reunification has been accomplished.
....
26. The Court finds that at this time it would be
appropriate to return legal and physical custody of
the juvenile to the Respondent Father, . . ., and that
will be the Order of the Court. The Court finds that
this will achieve the permanent plan of care for the
juvenile and that further Judicial Review hearings
are no longer necessary. The Court will allow the
Department and Guardian ad Litem to close their
respective Juvenile Court case files in this matter[.]
The trial court then ordered “[t]hat legal and physical custody of the juvenile . . . shall
be returned to the Respondent Father” and “[t]hat the Cumberland County
Department of Social Service and the Guardian ad Litem should be allowed to close
their Juvenile Court case files[.]” The trial court also released the respondents’ court-
-3-
IN RE: J.K.
Opinion of the Court
appointed counsel and granted visitation to respondent-mother for an hour of
visitation supervised by respondent–father every other week at a particular
McDonald’s restaurant.3
Also on 17 May 2016, the trial court entered another order, entitled simply
“ORDER” (“Custody Order”).4 The brief, two-page Custody Order incorporates the
findings from the Permanency Planning Order. The Custody Order includes a
conclusion of law that “North Carolina is the home state of the juveniles [(sic)] and
this Court has jurisdiction over the juvenile under the provisions of the Uniform Child
Custody Jurisdiction Enforcement Act for the purpose of entering an Order on
Custody.” The Custody order then grants legal and physical custody of the juvenile
to respondent-father and supervised visitation to respondent-mother, just as set forth
in the Permanency Planning Order. Respondent-mother filed notice of appeal “from
the Review Order changing custody of the above minor child that was filed on May
17, 2016.”
II. Standard of Review
Our review of a permanency planning order 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
3 Previously, DSS had been providing the supervision for visitation.
4Within the text of the order, the trial court calls the order an “Order on Custody[.]” The
custody order does not refer to any particular statutory basis for its provisions but only notes that it
was based upon evidence presented “at a Permanency Planning hearing[.]”
-4-
IN RE: J.K.
Opinion of the Court
of fact are conclusive on appeal when
supported by any competent evidence, even if
the evidence could sustain contrary findings.
In choosing an appropriate permanent plan
under N.C. Gen. Stat. § 7B–906.1 (2013), 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. Questions of statutory
interpretation are questions of law, which are
reviewed de novo by an appellate court.
Unchallenged findings of fact are deemed to be supported
by the evidence and are binding on appeal. Moreover,
erroneous findings that are unnecessary to support the
trial court’s conclusions of law may be disregarded as
harmless.
In re A.C., ___ N.C. App. ___, ___, 786 S.E.2d 728, 733 (2016) (citations and quotation
marks omitted).
III. Permanency Planning Order
Respondent-mother argues that “the trial court erred in granting . . .
Jennifer[’]s custody to the respondent father when it concluded that the return of the
juvenile to the respondents would be contrary [] to the welfare and best interests of
the juvenile.” (Original in all caps.) Specifically, respondent-mother argues the trial
court’s conclusions of law in the Permanency Planning Order are contradictory and
prevent this Court from adequately determining whether granting respondent-father
custody of Jennifer was in her best interests.
Here, the trial court made the following pertinent conclusions of law:
2. No reasonable means were available to protect the
-5-
IN RE: J.K.
Opinion of the Court
juvenile, short of out-of-home placement, because
return to the custody of the Respondents would be
contrary to the welfare of the juvenile.
3. That the primary permanent plan of reunification
with the Respondent Father with a secondary
permanent plan of guardianship with the Paternal
Grandmother; the Court approves of the permanent
plans and the plans are consistent with the
juvenile’s best interests.
4. That the primary permanent plan has been achieved
today.
5. That the Respondent Mother . . . is not a fit and
proper person for the care, custody and control of the
juvenile. That it is in the juvenile’s best interests to
have supervised visitation with the Respondent
Mother.
6. That the Respondent Father . . . is a fit and proper
person for the care, custody and control of the
juvenile.
7. That return of the juvenile to the custody of the
Respondents would be contrary to the welfare and
best interests of the juvenile.
8. That the juvenile remains in need of more care and
supervision than the Respondent Mother can
provide for the juvenile at this time.
....
10. That in the best interests of the juvenile, legal and
physical custody should be with the Respondent
Father . . . .
-6-
IN RE: J.K.
Opinion of the Court
Respondent-mother argues that the trial court’s conclusions are contradictory
as conclusions of law 2 and 7 do not support the court’s order awarding custody to
respondent-father because they conclude that the return of Jennifer’s custody to
“respondents” was contrary to her welfare and best interests. After careful review of
the record, we conclude the references to “the Respondents” instead of “Respondent
Mother” in conclusions of law 2 and 7 were clerical errors. See N.C. Gen. Stat. § 1A-
1, Rule 60(a) (2015).
Clerical mistakes are “mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission . . . .” Id.
A clerical error is an error resulting from a minor mistake
or inadvertence, especially in writing or copying something
on the record, and not from judicial reasoning or
determination. When, on appeal, a clerical error is
discovered in the trial court’s judgment or order, it is
appropriate to remand the case to the trial court for
correction because of the importance that the record speak
the truth.
In re D.B., 214 N.C. App. 489, 497, 714 S.E.2d 522, 527 (2011) (citations, quotation
marks, and brackets omitted).
After conducting the permanency planning hearing on 17 February 2016, the
trial court made the following unchallenged findings of fact:
5. That the juvenile has been placed in the home with
the Respondent Father since November 16, 2014.
That the juvenile is doing very well in the
placement.
-7-
IN RE: J.K.
Opinion of the Court
6. That the Paternal Grandmother is a good support
system for the Respondent Father.
7. That the juvenile attends day care five (5) days per
week. She interacts well with the other children at
the day care center. [Jennifer] is on a schedule[]
for toilet training. The juvenile is able to speak a
few words.
....
9. That the juvenile continues to display self injurious
behaviors such as scratching her face and neck as
well as grabbing her hair to the point of pulling it
out. That Dr. [Smith] at Coastal Carolina
Neuropsychiatric Center indicated that [Jennifer]’s
behaviors are most likely due to her lacking a stable
nurturing environment. That the Respondent
Father was provided with techniques to help with
the behaviors.
10. That the Respondent Mother is unemployed. She
receives disability benefits.
....
12. That the Respondent Mother has history of mental
health issues and hospitalizations. That the
Respondent Mother believes she was in witness
protection with Cape Fear Valley Medical Center.
That the Respondent Mother continues to deny
having any mental health problem and continues to
refuse to obtain and maintain treatment for her
mental health issues.
....
15. That the Respondent Mother has a CPS history in
Sampson County where she lost custody of two
children to their father.
-8-
IN RE: J.K.
Opinion of the Court
16. That the Respondent Mother has not been compliant
with recommended Court ordered services.
....
20. That the Respondent Father is employed with
Goodyear. He works as a driver for Uber Car
Services and has enrolled in school.
21. That the Respondent Father has completed Court
ordered services.
....
23. That the permanent plan of reunification with the
Respondent Father has been achieved.
....
26. The Court finds at this time it would be appropriate
to return legal and physical custody of the juvenile to the
Respondent Father . . . and that will be the Order of the
Court.
These binding findings of fact, see In re A.C., ___ N.C. App. at ___, 786 S.E.2d
at 733, support the trial court’s conclusion of law 10 that “in the best interests of the
juvenile, legal and physical custody should be with the Respondent Father” which
supports the ultimate decree granting custody of Jennifer to respondent-father’s
custody. Furthermore, the record fully supports a determination that it was in
Jennifer’s best interests to live with respondent-father and not respondent-mother.
Thus, we conclude the references to “the Respondents” in conclusions of law 2 and 7
were clerical errors in that they should read “Respondent Mother” only. Accordingly,
-9-
IN RE: J.K.
Opinion of the Court
we remand the Permanency Planning Order to the trial court to correct the clerical
errors in conclusions of law 2 and 7 to read “Respondent Mother.”
IV. Custody Order
Respondent next argues “the trial court erred in entering a civil custody order
without first terminating the jurisdiction of the juvenile court and making the
required finding that there was no need for continued State intervention on behalf of
the child.” (Original in all caps.) Specifically, respondent contends the trial court
failed to make the requisite findings of fact pursuant to North Carolina General
Statute § 7B-911 to terminate the juvenile court’s jurisdiction before entering the civil
Custody Order. Again, “Questions of statutory interpretation are questions of law,
which are reviewed de novo by an appellate court.” In re A.C., ___ N.C. App. at ___,
786 S.E.2d at 733.
We first note that the Custody Order is not really a “civil custody order” as
contemplated by North Carolina General Statute § 7B-911. The Custody Order was
entered in the juvenile court file and does not include any provisions transferring
jurisdiction of the case to a Chapter 50 custody matter:
N.C. Gen. Stat. § 7B–911 specifically provides the
procedure for transferring a Chapter 7B juvenile
proceeding to a Chapter 50 civil action. In certain cases
which have originated as abuse, neglect, or dependency
proceedings under Chapter 7B of the General Statutes, a
time may come when involvement by the Department of
Social Services is no longer needed and the case becomes a
custody dispute between private parties which is properly
- 10 -
IN RE: J.K.
Opinion of the Court
handled pursuant to the provisions of Chapter 50. N.C.
Gen. Stat. § 7B–911 sets forth a detailed procedure for
transfer of such cases which will ensure that the juvenile
is protected and that the juvenile’s custodial situation is
stable throughout this transition. For this reason, N.C.
Gen. Stat. § 7B–911(b) requires that the juvenile court
enter a permanent order prior to termination of its
jurisdiction. After transfer, if a party desires modification
of the juvenile’s custodial situation under Chapter 50, that
party must file the appropriate motion for modification and
demonstrate a substantial change in circumstances
affecting the best interests of the child. The procedure
required by N.C. Gen. Stat. § 7B–911 is not a mere
formality which can be dispensed with just because the
parties agree to a consent order. Jurisdiction cannot be
conferred upon the court by consent, but the trial court
must exercise its jurisdiction only in accordance with the
applicable statutes.
Sherrick v. Sherrick, 209 N.C. App. 166, 169–70, 704 S.E.2d 314, 317 (2011) (citations
omitted). Indeed, North Carolina General Statute § 7B-911 provides:
(a) Upon placing custody with a parent or other
appropriate person, the court shall determine whether or
not jurisdiction in the juvenile proceeding should be
terminated and custody of the juvenile awarded to a parent
or other appropriate person pursuant to G.S. 50-13.1, 50-
13.2, 50-13.5, and 50-13.7.
(b) When the court enters a custody order under
this section, the court shall either cause the order to be
filed in an existing civil action relating to the custody of the
juvenile or, if there is no other civil action, instruct the
clerk to treat the order as the initiation of a civil action for
custody.
If the order is filed in an existing civil action and the
person to whom the court is awarding custody is not a party
to that action, the court shall order that the person be
joined as a party and that the caption of the case be
- 11 -
IN RE: J.K.
Opinion of the Court
changed accordingly. The order shall resolve any pending
claim for custody and shall constitute a modification of any
custody order previously entered in the action.
If the court’s order initiates a civil action, the court
shall designate the parties to the action and determine the
most appropriate caption for the case. The civil filing fee is
waived unless the court orders one or more of the parties
to pay the filing fee for a civil action into the office of the
clerk of superior court. The order shall constitute a custody
determination, and any motion to enforce or modify the
custody order shall be filed in the newly created civil action
in accordance with the provisions of Chapter 50 of the
General Statutes. The Administrative Office of the Courts
may adopt rules and shall develop and make available
appropriate forms for establishing a civil file to implement
this section.5
(c) When entering an order under this section,
the court shall satisfy the following:
(1) Make findings and conclusions that support
the entry of a custody order in an action under
Chapter 50 of the General Statutes or, if the
juvenile is already the subject of a custody
order entered pursuant to Chapter 50, makes
findings and conclusions that support
modification of that order pursuant to G.S. 50-
13.7.
(2) Make the following findings:
a. There is not a need for continued State
intervention on behalf of the juvenile
through a juvenile court proceeding.
b. At least six months have passed since
the court made a determination that
the juvenile’s placement with the
person to whom the court is awarding
custody is the permanent plan for the
juvenile, though this finding is not
5 Unfortunately, from our research it appears that no forms for implementation of North
Carolina General Statute § 7B-911 have yet been developed.
- 12 -
IN RE: J.K.
Opinion of the Court
required if the court is awarding
custody to a parent or to a person with
whom the child was living when the
juvenile petition was filed.
N.C. Gen. Stat. § 7B-911 (2015) (emphasis added).
Here, after the 17 February 2016 permanency planning hearing, on 17 May
2016 the trial court entered the Permanency Planning Order establishing the
permanent plan as custody with respondent-father, ordering DSS and the guardian
ad litem to close their juveniles case files, and relieving the respondents’ attorneys
from any further duties; all of these provisions indicate that the trial court intended
to terminate juvenile jurisdiction. But based upon the record before us, the trial court
could not yet enter an order under North Carolina General Statute § 9B-711 since
the permanent plan of reunification with respondent father was adopted on the very
same date, 17 May 2016, and thus six months had not “passed since the court made
a determination that the juvenile’s placement with the person to whom the court is
awarding custody is the permanent plan for the juvenile.” Id.
The trial court’s separate Custody Order returning legal and physical custody
of Jennifer to respondent-father appears to be intended to transfer the case to be
addressed in the future as a Chapter 50 civil custody matter, but the order does not
include the provisions required by North Carolina General Statute § 7B-911, and it
was premature. See id. Specifically, since the respondents did not have another
custody matter already pending, the civil custody order would need to:
- 13 -
IN RE: J.K.
Opinion of the Court
 “instruct the clerk to treat the order as the initiation
of a civil action for custody”
 “initiate[] a civil custody action”
 “designate the parties to the action and determine
the most appropriate caption for the case”
 “[m]ake findings and conclusions that support
the entry of a custody order in an action under
Chapter 50 of the General Statutes”
 “make the following findings:
a. There is not a need for continued State
intervention on behalf of the juvenile
through a juvenile court proceeding.
b. At least six months have passed since
the court made a determination that
the juvenile’s placement with the
person to whom the court is awarding
custody is the permanent plan for the
juvenile[.]”
Id.
The trial court’s Custody Order did “[m]ake findings and conclusions that
support the entry of a custody order in an action under Chapter 50”and made findings
which tend to show that “[t]here is not a need for continued State intervention on
behalf of the juvenile through a juvenile court proceeding[,]” although the order did
not use exactly these words. Id. But the trial court did not make a finding that “[a]t
least six months have passed since the court made a determination that the juvenile’s
placement with the person to whom the court is awarding custody is the permanent
plan for the juvenile,” nor could this finding be made, since the permanent plan was
- 14 -
IN RE: J.K.
Opinion of the Court
not adopted until 17 May 2016; this finding is required since Jennifer was not living
with respondent-father “when the juvenile petition was filed.” Id.
Although the “initial order removing custody” of Jennifer was entered on 28
September 2014, and Jennifer was first placed with respondent-father on 16
November 2014, the first and only permanency planning hearing held in this case
was the 17 February 2016 hearing, as memorialized in the 17 May 2016 Permanency
Planning Order. See generally N.C. Gen. Stat. § 7B-906.1 (2013). The prior version
of North Carolina General Statute § 7B-906.1 which was in effect when the petition
was filed required that a permanency planning hearing be held within 12 months of
the “initial order removing custody[:]”6
Within 12 months of the date of the initial order removing
custody, there shall be a review hearing designated as a
permanency planning hearing. Review hearings after the
initial permanency planning hearing shall be designated
as subsequent permanency planning hearings. The
subsequent permanency planning hearings shall be held at
least every six months thereafter or earlier as set by the
court to review the progress made in finalizing the
permanent plan for the juvenile, or if necessary, to make a
new permanent plan for the juvenile.
N.C. Gen. Stat. § 7B-906.1(a) (2013).
6 The current version, which became effective on 1 July 2016, and the intermediate version,
effective from 1 October 2015 until 30 June 2016, also required a permanency planning hearing to be
held within 12 months of the initial order removing custody. See N.C. Gen. Stat. § 7B-906.1, Effects
of Amendments (2015 & Supp. 2016).
- 15 -
IN RE: J.K.
Opinion of the Court
Permanency planning hearings were scheduled several times prior to February
2016; one was scheduled for 4 November 2015, but it had to be continued “[d]ue to
the lateness of the hour and the voluminous docket[.]” The November 2015 hearing
was rescheduled and continued a couple more times based on the lack of court time
to hear the case due to the other cases on the docket. Despite the trial court’s efforts
to hold the permanency planning hearing sooner, it was seriously delayed. And
during this long delay, Jennifer was placed with respondent-father and doing well,
while respondent-mother persisted in her refusal to comply with her recommended
treatment and medication to address her mental illness. By the time the permanency
planning hearing was held, we would agree with the trial court that there seemed to
be no practical reason to continue DSS’s involvement in the case, but North Carolina
General Statute § 7B-911 requires that at least six months pass after the permanent
plan of placement with respondent-father before the trial court can enter an order
transferring the case as a civil custody matter under Chapter 50. See N.C. Gen. Stat.
§ 7B-911. If the permanent plan had been in place over six months, we could have
remanded the case for a clearer initiation of the civil case and the required findings,
but since it was not, we must reverse the Custody Order and remand for additional
proceedings. See generally id.
At this point the primary permanent plan for placement with respondent-
father has been in place since 17 May 2016 and we have affirmed the Permanency
- 16 -
IN RE: J.K.
Opinion of the Court
Planning Order, with the minor correction of clerical errors. Assuming no substantial
change in the circumstances of the respondent parents or Jennifer, the trial court
could, on remand, enter a civil custody order terminating the juvenile court’s
jurisdiction under North Carolina General Statute § 7B-911, but an additional
hearing will be necessary on remand to determine if this action is still appropriate.
V. Conclusion
For the reasons discussed above, we remand the Permanency Planning Order
for correction of clerical errors. We reverse the Custody Order and remand for
additional proceedings before the trial court to enter any additional order needed,
consistent with this opinion.
REVERSED in part and REMANDED.
Chief Judge McGEE and Judge McCULLOUGH concur.
- 17 -