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In re T.P.

Court of Appeals of North Carolina

July 5, 2017

IN RE: T.P, T.P. and T.P., Three Minor Juveniles.

          Heard in the Court of Appeals 7 June 2017.

         Appeal by respondent from order entered 24 October 2016 by Judge H. Thomas Church in Iredell County District Court. Iredell County, No. 15 JA 159-61

          Lauren Vaughan for petitioner-appellee Iredell County Department of Social Services.

          Melanie Stewart Cranford for guardian ad litem.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L. Terres, for respondent.

          DAVIS, Judge.

         T.P.[1] ("Respondent") appeals from the trial court's 24 October 2016 order placing her three children in the custody of the Iredell County Department of Social Services ("DSS") based on a report of abuse, neglect, or dependency that DSS had received from law enforcement officers. At the time this report was received, the court had previously discontinued periodic judicial reviews and released counsel in connection with proceedings stemming from a prior adjudication of the children as abused juveniles. On appeal, Respondent argues that the court (1) lacked subject matter jurisdiction to enter the 24 October 2016 order; and (2) erred by failing to conduct an adjudicatory hearing pursuant to Article 8 of the Juvenile Code.

         This appeal requires us to consider how a trial court obtains subject matter jurisdiction to enter an order removing the custody of juveniles from their parent in a proceeding governed by N.C. Gen. Stat. § 7B-401(b). After careful review, we vacate the trial court's order for lack of subject matter jurisdiction.

         Factual and Procedural Background

         "Tasha, " "Tina, " and "Tyler" are Respondent's children from three different fathers - G.P, P.S, and E.K.[2] On 25 August 2015, DSS filed three verified petitions alleging abuse and neglect of Tasha, Tina, and Tyler. On 20 October 2015, an adjudication hearing was held in Iredell County District Court before the Honorable H. Thomas Church. Following the hearing, the trial court entered an order adjudicating the three children to be abused. On 17 November 2015, a dispositional hearing was held, and the trial court issued an order on 1 December 2015 placing the three children in the custody of DSS. Pursuant to the trial court's order, permanency planning hearings were subsequently held every 90 days.

         Following a 6 September 2016 permanency planning hearing, the trial court entered an order on 7 September 2016 determining that Respondent was "fit and proper to exercise the care, custody, and control of the juveniles" and ordering that "[t]he legal and physical custody of the juveniles . . . shall be returned to Respondent Mother." P.S. was given joint legal and physical custody of Tina. G.P. and E.K. were allowed supervised visits with their children. The 7 September 2016 order stated that the court was "retain[ing] jurisdiction" but determined that "no further regular review hearings are scheduled." The order also provided that DSS "is relieved of active monitoring responsibility, the Guardian ad Litem Program is relieved, and all counsel is [sic] relieved."

         On 14 September 2016, DSS received a new Child Protective Services report stating that law enforcement officers had responded to a domestic altercation two days earlier between Respondent and E.K. On 15 September 2016, a DSS social worker met with Respondent, who admitted that the altercation had occurred and that same day signed a safety plan in which she agreed to obtain a domestic violence protective order ("DVPO") against E.K. Based on its investigation of the incident, DSS determined that immediate removal of the minor children from Respondent's custody was not required.

         On 16 September 2016, DSS filed a "Motion for Review" in the existing juvenile matters as to each of the three children, requesting the trial court "to hear and further consider the case" due to a "[c]hange in situation." The motions detailed the 14 September report from law enforcement officers, the social worker's meeting with Respondent, and the safety plan to which Respondent had agreed. The motions further stated that Respondent had denied that any of the children were present during the altercation but that E.K. had indicated to law enforcement officers that his son had, in fact, been present. The motions also asserted that Respondent had "stated that she was not going to [seek a DVPO], because she was going to move out of the county." On 3 October 2016, DSS filed a "Juvenile Court Summary" stating, in pertinent part, that despite the safety plan Respondent had signed in which she agreed that she would obtain a protective order against E.K., she had failed to follow through by actually obtaining the DVPO.

         On 4 October 2016, the trial court held a hearing on the Motions for Review. The social worker, Respondent, and E.K. testified regarding the events of 12 September 2016. DSS recommended that "legal and physical custody of [Tasha] and [Tyler] be placed with [DSS] with [DSS] having placement authority" and that "legal and physical custody of [Tina be placed] with Respondent Father [P.S.]" On 24 October 2016, the court entered an order containing the following pertinent findings of fact:

3. This case came on for a Motion for Review filed September 16, 2016, by DSS and a Permanency Planning Review, the above-named juveniles having been found within the jurisdiction of the court as abused on October 20, 2015. The current allegations involve a physical assault that occurred on or about September 12, 2016, between Respondent Mother and [E.K.] in which it is alleged they have been violating Orders of ...

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