In re: J.K.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-823
Filed: 18 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 affirm the permanency planning order and
remand for correction of a clerical error. We also 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. On remand, the trial court should enter a new order in accord with North
Carolina General Statute § 7B-911.
IN RE: J.K.
Opinion of the Court
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 non-secure
custody. On 1 December 2014, the trial court had a hearing regarding the non-secure
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.
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
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.
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IN RE: J.K.
Opinion of the Court
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-
appointed counsel and granted visitation to respondent-mother for an hour of
visitation supervised by respondent–father every other week at a particular
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IN RE: J.K.
Opinion of the Court
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 juvenile[] 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
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
3 Previously, DSS had been providing the supervision for visitation.
4 Within the text of the Custody 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[.]”
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IN RE: J.K.
Opinion of the Court
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
juvenile, short of out-of-home placement, because
return to the custody of the Respondents would be
contrary to the welfare of the juvenile.
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IN RE: J.K.
Opinion of the Court
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 . . . .
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
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IN RE: J.K.
Opinion of the Court
“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.
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[]
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IN RE: J.K.
Opinion of the Court
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.
16. That the Respondent Mother has not been compliant
with recommended Court ordered services.
....
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IN RE: J.K.
Opinion of the Court
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,
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
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IN RE: J.K.
Opinion of the Court
Respondent-mother 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-mother
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 a civil custody order. Again, “[q]uestions 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
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
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IN RE: J.K.
Opinion of the 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 in relevant part:
(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 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
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IN RE: J.K.
Opinion of the Court
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 . . . .
(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.
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. 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
5 Unfortunately, from our research it appears that no forms for implementation of North
Carolina General Statute § 7B-911 have yet been developed.
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IN RE: J.K.
Opinion of the Court
Statute § 7B-911. See id. Specifically, since the respondents did not have another
custody matter already pending, any civil custody order would need to:
 “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 a finding that “[t]here is not a need for
continued State intervention on behalf of the
juvenile through a juvenile court proceeding.”
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. At this point in time, the primary permanent plan
for placement with respondent-father has been in place since 17 May 2016 and we
have affirmed the Permanency Planning Order, with remand for the correction of
minor clerical errors. We also reverse and remand the Custody Order so that the
trial court may on remand enter a civil custody order terminating the juvenile court’s
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IN RE: J.K.
Opinion of the Court
jurisdiction in compliance with North Carolina General Statute § 7B-911. The trial
court may, in its sole discretion, hold an additional hearing prior to entry of the new
order on remand.
V. Conclusion
For the reasons discussed above, we affirm the Permanency Planning Order
but remand for correction of clerical errors. We reverse and remand the Custody
Order for additional proceedings before the trial court to enter a new order consistent
with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Chief Judge McGEE and Judge McCULLOUGH concur.
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