IN RE: T.P, T.P. and T.P., Three Minor Juveniles.
in the Court of Appeals 7 June 2017.
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
Vaughan for petitioner-appellee Iredell County Department of
Melanie Stewart Cranford for guardian ad litem.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Joyce L. Terres, for 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
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.
and Procedural Background
" "Tina, " and "Tyler" are
Respondent's children from three different fathers - G.P,
P.S, and E.K. 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.
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."
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
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.
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