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In re J.D.M.-J.

Court of Appeals of North Carolina

June 19, 2018

IN THE MATTER OF: J.D.M.-J., O.M.L.J.

          Heard in the Court of Appeals 31 May 2018.

          Appeal by respondent from order entered 25 August 2017 by Judge Christy E. Wilhelm in Cabarrus County Nos. 16 JA 91-92 District Court.

          Hartsell & Williams, PA, by H. Jay White and Austin "Dutch" Entwistle III, for petitioner-appellee Cabarrus County Department of Human Services.

          J. Thomas Diepenbrock for respondent-appellant.

          Poyner Spruill LLP, by Caroline P. Mackie, for guardian ad litem.

          DAVIS, Judge.

         A.M. ("Respondent") appeals from an order that awarded custody of her minor children J.D.M.-J. ("Jacob")[1] and O.M.L.J. ("Opal") to their aunt and uncle in Arizona, terminated the juvenile proceeding, and transferred the matter for entry of a civil custody order under Chapter 50 of the North Carolina General Statutes. On appeal, she argues that the trial court failed to (1) comply with the statutory procedure for terminating the proceeding in juvenile court; (2) ensure compliance with the Interstate Compact on the Placement of Children (the "ICPC"); (3) verify that the custodians possessed adequate resources and understood the legal significance of the placement of the children in their custody; and (4) comply with statutory requirements in establishing Respondent's visitation rights. After a thorough review of the record and applicable law, we vacate the trial court's order and remand for further proceedings.

         Factual and Procedural Background

         Respondent is the mother of Opal and Jacob.[2] Opal was born in December 2006 and Jacob in September 2008. In December 2014, the Cabarrus County Department of Human Services ("DHS") received a report that Respondent had not been properly monitoring Jacob's blood sugar levels in connection with his juvenile diabetes and that the house was not clean or safe for the children.

         In December 2015 and January 2016, DHS received numerous reports alleging that (1) there was fighting in the home between Respondent and her oldest child ("April")[3]; (2) Respondent was not properly caring for Jacob's diabetes; (3) Opal was not receiving her ADHD medication as prescribed; (4) Jacob was missing school; and (5) Opal and Jacob were attending school with inadequate clothes and inattention to personal hygiene.

         DHS began providing in-home services to the family in response to these reports. In April and May 2016, DHS received new reports stating that Respondent was providing inadequate care for both children's medical needs, Opal had been disruptive at school, and Opal was being physically abused by April at home.

         On 20 June 2016, Respondent was hospitalized, and Opal and Jacob were staying with a family friend. The friend reported that she was not comfortable caring for the children while Respondent was in the hospital. On 22 June 2016, DHS filed juvenile petitions alleging that Opal and Jacob were neglected juveniles. The children were placed in nonsecure custody with DHS the same day. On 11 August 2016, Respondent consented to an order that adjudicated the children to be neglected, established a primary permanent plan of reunification with a secondary permanent plan of guardianship, and required her to comply with a case plan.

         A permanency planning hearing was held on 10 August 2017 before the Honorable Christy E. Wilhelm in Cabarrus County District Court. Respondent testified at the hearing along with Lisa Fullerton and Rachel Willert, two social workers employed by DHS.

         On 25 August 2017, the trial court entered a permanency planning order awarding custody of Opal and Jacob to Beverly and Johnnie Worley (the children's maternal aunt and uncle), who lived in Phoenix, Arizona. The court terminated jurisdiction in the juvenile action and ordered that the matter be transferred to a Chapter 50 civil custody action. Respondent filed a timely notice of appeal.

         Analysis

         On appeal, Respondent argues that the trial court erred by failing to (1) make necessary findings required under N.C. Gen. Stat. § 7B-911 before terminating jurisdiction in the juvenile action; (2) ensure compliance with the ICPC; (3) verify that the Worleys had adequate resources to serve as custodians and that they understood the legal significance of the placement of the children in their custody; and (4) make statutorily required findings regarding Respondent's visitation rights. We address each argument in turn.

         I. Findings Required by N.C. Gen. Stat. § 7B-911

         Respondent initially contends - and both DHS and the guardian ad litem ("GAL") concede - that the trial court failed to make required findings in connection with the portion of its order terminating the juvenile proceeding and initiating a civil action under Chapter 50. N.C. Gen. Stat. § 7B-911(c) provides, in relevant part, as follows:

(a) Upon placing custody with a parent or other appropriate person, the court shall determine whether or not jurisdiction in the juvenile proceeding should be terminated and custody of the juvenile awarded to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.
(b) When the court enters a custody order under this section, the court shall either cause the order to be filed in an existing civil action relating to the custody of the juvenile or, if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody.
. . . .
If the court's order initiates a civil action, the court shall designate the parties to the action and determine the most appropriate caption for the case. . . . The order shall constitute a custody determination, and any motion to enforce or modify the custody order shall be filed in the newly created civil action in accordance with the provisions of Chapter 50 of the General Statutes. . . .
(c) When entering an order under this section, the court shall . . . .
. . . .
(2) Make the following findings:
a. There is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding.
b. At least six months have passed since the court made a determination that the juvenile's placement with the person to whom the court is awarding custody is the permanent plan for the juvenile, though this finding is not required if the court is awarding custody to a parent or to a person with whom the child was living when the juvenile petition was filed.

N.C. Gen. Stat. § 7B-911 (2017) (emphasis added).

         Here, it is undisputed that the trial court made no findings satisfying either subsection (2)(a) or (2)(b). Nor do the findings it did make allow this Court to infer that these statutory provisions were met. See In re A.S., 182 N.C.App. 139, 144, 641 S.E.2d 400, 403-04 (2007) (upholding order that failed to contain explicit findings under N.C. Gen. Stat. § 7B-911(c)(2) but made findings demonstrating that trial court no longer considered DSS intervention necessary).

         Indeed, the trial court's order is internally inconsistent. On the one hand, it requires continued involvement with the juveniles by DHS by stating the following:

6. CCDHS should continue to make reasonable efforts to prevent or eliminate the need for placement of the juveniles.
. . . .
9. The juveniles's [sic] placement and care are the responsibility of CCDHS and the agency shall arrange for the foster care or other placement of the juvenile. CCDHS is granted the authority or [sic] to obtain medical treatment, educational, psychological, or ...

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