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In re H.D.

Court of Appeals of North Carolina

February 17, 2015

IN THE MATTER OF: H.D., K.R

Heard in the Court of Appeals 9 December 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Leake & Stokes, by Larry Leake, for petitioner-appellee Madison County Department of Social Services.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Tobias R. Coleman, for guardian ad litem.

Mark Hayes, for respondent-appellant mother.

STROUD, Judge. Judges Dillon and Dietz concur.

OPINION

Appeal by respondent from orders entered on or about 16 November 2012 by Judge F. Warren Hughes and 11 February 2014 by Judge Ted McEntire in District Court, Madison County No. 10 JA 24-25.

STROUD, Judge.

Respondent seeks review of three orders: an order which changed the permanent plan for the children to adoption and the adjudication and disposition orders terminating respondent's parental rights to her daughters. Madison County Department of Social Services filed a motion to dismiss respondent's appeal from the order adopting a permanent plan of adoption, and respondent then filed a petition for a writ of certiorari requesting this Court to hear her appeal on the contested order. For the following reasons, we deny Madison County Department of Social Services's motion to dismiss and respondent's petition for certiorari and affirm the three orders.

I. Background

On 6 April 2010, the Madison County Department of Social Services (" DSS" ) filed juvenile petitions seeking adjudications of neglect and dependency for respondent's two daughters. The petitions alleged that respondent admitted to DSS that she and her husband were drinking alcohol while supervising the children in April of 2010, in violation of a safety plan established in response to prior incidents. DSS alleged that " the family continues to be in constant crisis and the parents are unable to provide for the supervision and care of the juvenile[s] and lack appropriate alternative child care arrangement." On 23 November 2010, the district court entered an order adjudicating the girls dependent juveniles.

Over the next two years, DSS made several attempts to return the girls to the care of respondent but each time eventually had to intervene again. On 12 July 2012, the district court amended the girls' permanent plan of reunification with respondent by adding a concurrent plan of adoption. On or about 16 November 2012, the district court signed an order changing the permanent plan for the girls to adoption. On 11 February 2014, the trial court entered adjudication and disposition orders terminating respondent's parental rights to the children based on her lack of reasonable progress. Respondent appeals.

II. Permanency Planning Order

Respondent purports to appeal from the 16 November 2012 order changing the permanent plan to adoption. Respondent addresses the order changing the permanent plan to adoption as an order ceasing reunification efforts though the order does not explicitly cease reunification efforts or require DSS to file a motion seeking termination of respondent's parental rights. But even without any explicit language directing cessation of reasonable efforts to achieve reunification or requiring termination of parental rights, as a practical matter the order does cease reunification efforts. Here, the trial court found that " Respondent Mother fails to attend visits or complete her case plan" and " has pending criminal charges and has not been participating in drug screens[,]" and as such the girls " will be unable to go home within six months[; ]" " [i]t is proper to change the plan for the girls to one of adoption[; ]" and " [v]isits with the Respondent Mother are hereby terminated due to her failure to attend and her non-compliance." In addition to these findings, the court made uncontested findings regarding DSS's several failed attempts to return the girls to respondent's care. " While these findings of fact do not quote the precise language of subsection 7B-507(b) [regarding ceasing reunification efforts], the order embraces the substance of the statutory provisions requiring findings of fact that further reunification efforts would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time. N.C.G.S. § 7B-507(b)(1)." In re L.M.T., 367 N.C. 165, 169, 752 S.E.2d 453, 456 (2013) (quotation marks omitted).

A. Appeal of 16 November 2012 Order

Nonetheless, respondent failed to designate the 16 November 2012 order ceasing reunification in her notice of appeal, and due to this failure, DSS moved to dismiss respondent's appeal of the 16 November 2012 order or in the alternative, sought sanctions for the error. Thereafter, respondent petitioned this Court to review the 16 November 2012 order by writ of certiorari. Again we turn to In re L.M.T., which provided:

Parents may seek appellate review of cease reunification orders only in limited circumstances. In this case, respondent appealed under subsection 7B-1001(a)(5)(a), which provides that
a. The Court of Appeals shall review an order entered under section 7B-507 to cease reunification together with an appeal of the termination of parental rights order if all of the following apply:
1. A motion or petition to terminate the parent's rights is heard and granted.
2. The order terminating parental rights is appealed in a proper and timely manner.
3. The order to cease reunification is identified as an issue in the record on appeal of the termination of parental rights.
In other words, if a termination of parental rights order is entered, the appeal of the cease reunification order is combined with ...

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