In re: M.S.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1162
Filed: 19 April 2016
Harnett County, No. 14 JA 101
IN THE MATTER OF: M.S.
Appeal by respondent-mother and the minor’s stepfather from adjudication
and disposition order entered 1 May 2015 by Judge Addie H. Rawls in Harnett County
District Court. Heard in the Court of Appeals 4 April 2016.
Duncan B. McCormick for petitioner-appellee Harnett County Department of
Social Services.
Marie H. Mobley for guardian ad litem.
Richard Croutharmel for respondent-mother, appellant.
David A. Perez for respondent-stepfather, appellant.
ZACHARY, Judge.
Following the adjudication of the minor child, Mary,1 as an abused and
neglected juvenile, an appeal was taken to this Court by Mary’s mother (respondent),
and by J.C., who is married to Mary’s mother and is referred to in court documents
as her “stepfather.” On appeal, respondent’s counsel has filed a “no-merit” brief
pursuant to N.C.R. App. P. Rule 3.1(d) (2014), and J.C. has offered arguments
regarding the merits of the trial court’s adjudication and disposition orders. We
1 To protect the child’s privacy, we refer to her by the pseudonym Mary in this opinion.
IN RE: M.S.
Opinion of the Court
conclude that there is no basis for reversal of the trial court’s order, and that the
record fails to establish that J.C. has standing to appeal from the trial court’s order.
Accordingly, we affirm the trial court’s order and dismiss J.C.’s appeal.
I. Background
On 22 July 2014, the Harnett County Department of Social Services (“DSS”)
filed a juvenile petition alleging that Mary was an abused and neglected juvenile and
obtained nonsecure custody of Mary. The petition alleged that Mary was born in the
Philippines in 2000, that her father was deceased, and that J.C., who was identified
as Mary’s “step-father,” had sexually abused Mary over a period of years.
Two hearings were conducted on the petition in December 2014 and March
2015. Mary, who was fourteen at the time of the hearings, testified that J.C. had
sexually molested her on numerous occasions when she was between nine and
thirteen years old. Mary provided specific details of J.C.’s abuse, which had included
inappropriate touching of Mary’s private parts, J.C. touching Mary with his penis,
and at least one attempt by J.C. to undress Mary. Mary had reported the incidents
to respondent, who refused to believe her or to allow her to participate in professional
services such as a child medical examination or therapy. Mary’s older sister, who
was nineteen years old at the time of the hearing, testified that J.C. had also molested
her when she was eleven or twelve years old.
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Opinion of the Court
On 1 May 2015, the trial court entered an order containing more than sixty
findings of fact describing Mary’s home situation and J.C.’s sexual abuse of Mary.
The trial court found that Mary did not receive proper care and supervision in the
home of respondent and J.C. and that she resided in an environment injurious to her
health. The court also found that respondent had not provided adequate protection
and a safe environment for her daughter and that Mary resided in a home where
another juvenile had been subjected to abuse or neglect by J.C. Based upon these
findings of fact, the court adjudicated Mary to be an abused and neglected juvenile as
defined by N.C. Gen. Stat. § 7B-101(1) and (15) (2014).
In its dispositional order, the trial court ordered that Mary’s custody would
remain with DSS and that there would be no visitation between Mary and either her
mother or J.C. Respondent and J.C. each noted an appeal to this Court from the trial
court’s adjudication and dispositional orders.
II. Standard of Review
“The allegations in a petition alleging that a juvenile is abused, neglected, or
dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-
805 (2015).
When this Court reviews an order in a juvenile abuse,
neglect or dependency proceeding, we determine whether
the trial court made proper findings of fact and conclusions
of law in its adjudication and disposition orders. In so
doing, we consider whether clear and convincing evidence
in the record supports the findings and whether the
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Opinion of the Court
findings support the trial court’s conclusions. If there is
evidence to support the trial court’s findings of fact, they
are deemed conclusive even though there may be evidence
to support contrary findings. We consider matters of
statutory interpretation de novo.
In re W.V., 204 N.C. App. 290, 293, 693 S.E.2d 383, 386 (2010) (citing In re J.S., 182
N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007), In re Gleisner, 141 N.C. App. 475, 480,
539 S.E.2d 362, 365 (2000), In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246,
252-53 (1984), and Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554
S.E.2d 331, 332 (2001)).
III. Appeal by J.C.
We first address the issue of J.C.’s standing to appeal from the trial court’s
orders. “Although [J.C.’s] brief does not address the issue of standing, we are
compelled to address this issue.” In re T.B., 200 N.C. App. 739, 742, 685 S.E.2d 529,
532 (2009). “Standing is jurisdictional in nature and ‘[c]onsequently, standing is a
threshold issue that must be addressed, and found to exist, before the merits of [the]
case are judicially resolved.’ ” In re T.M., 182 N.C. App. 566, 570, 643 S.E.2d 471, 474
(quoting In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004)), aff’d per
curiam, 361 N.C. 683, 651 S.E.2d 884 (2007). “As the party invoking jurisdiction,
[J.C. has] the burden of proving the elements of standing.” Neuse River Found., Inc.,
v. Smithfield Foods, Inc., 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (citation
omitted), disc. review denied, 356 N.C. 675, 577 S.E.2d 628 (2003).
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Opinion of the Court
N.C. Gen. Stat. § 7B-1001(a) (2014) provides in relevant part that an “appeal
of a final order of the court in a juvenile matter shall be made directly to the Court of
Appeals. . . . [T]he following juvenile matters may be appealed: . . . (3) Any initial
order of disposition and the adjudication order upon which it is based.” Under N.C.
Gen. Stat. § 7B-1002 (2014), appeal from an initial order of adjudication and
disposition may be taken only by:
(1) A juvenile acting through the juvenile’s guardian ad
litem previously appointed under G.S. 7B-601.
(2) A juvenile for whom no guardian ad litem has been
appointed under G.S. 7B-601. . . .
(3) A county department of social services.
(4) A parent, a guardian appointed under G.S. 7B-600 or
Chapter 35A of the General Statutes, or a custodian as
defined in G.S. 7B-101 who is a nonprevailing party.
(5) Any party that sought but failed to obtain termination
of parental rights.
In the present case, J.C. clearly is not the juvenile, a court-appointed guardian
ad litem, a county department of social services, or a party who sought unsuccessfully
for termination of parental rights. Therefore, the only ground on which J.C. might
assert a right to appeal from the trial court’s order of adjudication and disposition
would be pursuant to N.C. Gen. Stat. § 7B-1002(4), as Mary’s “parent” or “custodian
as defined in G.S. 7B-101.” Upon review of the relevant statutes and the record, we
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conclude that the record fails to contain any evidence that J.C. is either Mary’s parent
or her legal custodian.
N.C. Gen. Stat. § 7B-101 (2014) defines the following terms as follows:
...
(3) Caretaker. -- Any person other than a parent,
guardian, or custodian who has responsibility for the
health and welfare of a juvenile in a residential setting. A
person responsible for a juvenile’s health and welfare
means a stepparent, foster parent, an adult member of the
juvenile’s household, [or] an adult relative entrusted with
the juvenile’s care[.] . . . (emphasis added).
...
(8) Custodian. -- The person or agency that has been
awarded legal custody of a juvenile by a court.
The record contains nothing to suggest that J.C. was awarded legal custody of
Mary by a court and, as a result, he cannot assert a basis to appeal as her “custodian”
pursuant to N.C. Gen. Stat. § 7B-101(8). Moreover, N.C. Gen. Stat. § 7B-101(3)
expressly defines “caretaker” to include a stepparent, such as J.C. On the record
before us, we conclude that J.C. had the status of “caretaker” of Mary.
In reaching this conclusion, we have necessarily made a distinction between
“parent” and “stepparent,” a distinction that we conclude is in accord with N.C. Gen.
Stat. § 7B-101 and N.C. Gen. Stat. § 7B-1002. We note that N.C. Gen. Stat. § 7B-
101(8) defines “caretaker” as a person “other than a parent, guardian, or custodian”
who is responsible for the health and welfare of a juvenile, and specifies that this
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term includes “a stepparent.” Thus, N.C. Gen. Stat. § 7B-101 distinguishes between
a parent and a stepparent. In addition, in N.C. Gen. Stat. § Chapter 48, which
governs adoption procedures, N.C. Gen. Stat. § 48-1-101(18) (2014) defines
“stepparent” as “an individual who is the spouse of a parent of a child, but who is not
a legal parent of the child.” (emphasis added).
We conclude that J.C. is not a proper party for appeal pursuant to N.C. Gen.
Stat. § 7B-1002 and that he is a ‘caretaker’ under N.C. Gen. Stat. § 7B-101(3). We
hold that N.C. Gen. Stat. § 7B-1002(4), which permits a “parent” to appeal from an
order of adjudication and disposition, does not authorize an appeal by a stepparent
in the absence of record evidence that the stepparent has become the child’s parent
through adoption or is otherwise qualified under the statute. “Due to insufficient
information in the record to determine whether [J.C.] has standing to pursue this
appeal, we dismiss the appeal.” T.B., 200 N.C. App. at 740, 685 S.E.2d at 530.
IV. Appeal by Respondent
Counsel for respondent has filed a “no merit” brief pursuant to N.C.R. App. P.
3.1(d) (2014). In compliance with the provisions of that rule, counsel states that after
thoroughly and conscientiously reviewing the record on appeal and consulting with
other experienced appellate attorneys he is unable to identify any issues with
sufficient merit upon which to base an argument for relief on appeal. He asks this
Court to review the record for possible meritorious issues that may have been
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overlooked by counsel. He also identifies possible arguments that he considered and
explains why he rejected them. He attached to the brief the letter he mailed to
respondent, advising her of his inability to find possible meritorious issues and of her
right to file her own written arguments directly with this Court. Counsel also
informed respondent of the procedures to follow if she elected to file her own
arguments and provided her with the necessary documents for that purpose.
Respondent has not filed her own written arguments. After reviewing the
record on appeal, we are unable to find anything to support an argument for
meaningful relief on appeal. We find ample evidence to support the findings of fact,
which establish that J.C. committed indecent liberties upon Mary, and, accordingly,
that Mary is an abused juvenile. The trial court’s findings also establish that Mary
did not receive proper care from respondent and J.C. and that she resided in an
environment injurious to her welfare. The court’s findings of fact thus support its
conclusion of law that Mary is an abused and neglected juvenile.
We affirm the adjudication and disposition order.
AFFIRMED IN PART, DISMISSED IN PART.
Judges HUNTER, JR., and DAVIS concur.
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