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In re C.P.

Court of Appeals of North Carolina

March 6, 2018

IN THE MATTER OF: C.P.

          Originally heard in the Court of Appeals 14 December 2017.

          Petition for Rehearing allowed 14 February 2018.

         Appeal by respondent-mother from order entered 21 March 2017 by Judge Joseph Moody Buckner in Orange County No. 15 JA 63 District Court.

          Holcomb and Stephenson, LLP, by Angenette Stephenson, for Orange County Department of Social Services, petitioner-appellee.

          K&L Gates LLP, by Leah D'Aurora Richardson, for guardian ad litem.

          W. Michael Spivey, for respondent-appellant mother.

          BERGER, JUDGE.

         Respondent-mother appeals from an order that adjudicated the juvenile, C.P. ("Carl"), [1] as a neglected and dependent juvenile, and awarded permanent guardianship to the juvenile's half-brother ("Chris"). On January 2, 2018, this Court filed an opinion that reversed the adjudication that Carl is a dependent juvenile, and vacated the order for failing to order reunification as a concurrent plan and failing to make required findings regarding guardianship with Chris. On January 29, 2018, petitioner-appellee Orange County Department of Social Services ("OCDSS") filed a Petition for Rehearing pursuant to Rule 31 of the North Carolina Rules of Appellate Procedure. We subsequently allowed the Petition for Rehearing, and this opinion replaces the original opinion. After careful review, we affirm the portion of the trial court's order that ceases reunification efforts; reverse the adjudication that Carl is a dependent juvenile; and vacate the order for failing to order reunification as a concurrent permanent plan and failing to make required findings regarding guardianship with Chris.

         Factual and Procedural Background

         On July 14, 2015, OCDSS filed a juvenile petition alleging that thirteen-year-old Carl was a neglected and dependent juvenile. A hearing was held on August 6, 2015 and an order was entered on August 27, 2015 in which the trial court (1) adjudicated Carl and his older sister[2] as neglected and dependent, and (2) awarded custody of Carl and his sister to their adult half-brother. Respondent-mother appealed.

         On October 4, 2016, this Court reversed and remanded the case for a new hearing because the order did not result from a proper adjudicatory hearing or valid consent by Respondent-mother. In re K.P., C.P., ___ N.C.App. ___, ___, 790 S.E.2d 744, 749 (2016). On remand, the trial court held an "adjudication/disposition and permanency planning hearing" on March 2, 2017. The trial court (1) adjudicated Carl as dependent and neglected, and (2) awarded guardianship of Carl to his adult half-brother in an order dated March 21, 2017. Respondent-mother filed notice of appeal.

         Respondent-mother concedes that she failed to serve a copy of her written notice of appeal on the guardian for the juvenile. See N.C. R. App. P. 3.1(a). Although Respondent-mother failed to comply with Rule 3.1(a) of the North Carolina Rules of Appellate Procedure, this Court has the discretionary authority "to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action." N.C. R. App. P. 21(a)(1). Therefore, we grant Respondent-mother's petition for writ of certiorari and address the merits of this case.

         Analysis

         Respondent-mother first contends that the court erred by adjudicating Carl as a dependent juvenile. The Juvenile Code defines a dependent juvenile as one whose "parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9) (2015). "Under this definition, the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005). Respondent-mother argues that all of the evidence and findings show that Carl was always in the care of a suitable relative, and thus he could not be adjudicated as dependent. OCDSS concedes that this adjudication was error because at the time of the ...


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