in the Court of Appeals 28 February 2019.
by respondent-mother from order entered 12 February 2018 by
Judge Paul A. Holcombe, III, in Johnston County No. 16 JA 198
brief filed for petitioner-appellee Johnston County
Department of Social Services.
Jeffrey L. Miller for respondent-appellant mother.
H. Mobley for guardian ad litem.
Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia
Jurney, for guardian-appellees.
the mother of the minor child J.L. ("Jay"),
appeals from the trial court's permanency planning order
awarding guardianship of the child to his foster parents
("Mr. and Ms. C"). We hold the trial court erred by
failing to indicate that the findings of fact supporting the
determination that respondent was unfit as a parent and had
acted inconsistent with her constitutionally protected
parental status were found to a clear and convincing evidence
standard of proof and by failing to notify respondent of her
right to file a motion for review of the visitation plan, as
required by General Statutes, section 7B-905.1(d). We vacate
those portions of the trial court's 12 February 2018
permanency planning order and remand for further proceedings
consistent with this opinion. The order is otherwise
days after Jay's birth in October 2016, the Johnston
County Department of Social Services ("DSS") filed
a juvenile petition alleging Jay was a neglected and
dependent juvenile. The petition alleged that: (1) DSS
received a Child Protective Services ("CPS") report
that respondent had a history with CPS in Wake County and
Johnston County; (2) three other children had been removed
from respondent's care; (3) respondent had been unable to
acquire adequate housing, complete parenting classes, attend
budgeting classes, or remain compliant with recommended
mental health treatment, and as a result, the permanent plan
for those children had been changed to adoption; (4)
respondent subsequently relinquished her parental rights to
those children; (5) respondent's current roommate had
a history with CPS and did not have custody of any of her own
children; and (6) respondent displayed concerning behaviors
at the hospital, including failing to feed Jay in a timely
manner, an "overall lack of knowledge in basic infant
care" during feedings and diaper changes, and an
inability to control the amount of force exerted when moving
Jay's limbs. The same day, DSS obtained nonsecure custody
of Jay and placed him in foster care with Mr. and Ms. C.
hearing on the petition was held on 7 December 2016.
Respondent stipulated to the factual basis of the petition
and consented to an adjudication of neglect and dependency.
The trial court entered an order on 2 February 2017
adjudicating Jay to be a neglected and dependent juvenile.
The same day, the trial court entered a separate
dispositional order continuing custody of Jay with DSS. Jay
remained placed in foster care with Mr. and Ms. C, and
respondent was allowed one-hour of supervised visitation
twice a month. The trial court ordered respondent to
cooperate with DSS and follow any and all DSS
recommendations, which included the following: complete
parenting classes and demonstrate learned knowledge; complete
a mental health assessment and follow all recommendations;
take all medications as prescribed; submit to drug screens as
requested by DSS; obtain and maintain safe, stable housing
that is clean, appropriately furnished, and free from
substance abuse and domestic violence; obtain and maintain
sufficient financial resources to meet Jay's needs;
educate herself regarding budgeting and demonstrate learned
knowledge; and conduct herself in an appropriate manner
permanency planning hearing on 22 March 2017, the trial court
entered an order ceasing reunification efforts with
respondent and establishing a primary permanent plan of
custody or guardianship with a court-approved caretaker, with
a secondary plan of adoption. Jay remained in DSS custody and
in his foster care placement with Mr. and Ms. C.
Respondent's visitation was reduced to a monthly,
one-hour supervised visit.
subsequent permanency planning hearing was held on 2 and 9
August 2017. At the beginning of the hearing, DSS informed
the trial court it had located the foster parents who had
adopted two of Jay's older half-siblings ("Mr. A and
Ms. F"), and it recommended that Jay be moved to that
foster home. Jay's guardian ad litem
("GAL") and respondent agreed with DSS's
recommendation. At that time, counsel for Jay's current
foster parents, Mr. and Ms. C, indicated they intended to
file a motion to intervene in the matter. The trial court
stated Mr. and Ms. C could not be made parties to the case,
but it would permit their counsel to facilitate their
testimony on direct examination since it was required to hear
information from any person providing care for the juvenile.
See N.C. Gen. Stat. § 7B-906.1(c) (2017).
During the hearing, the trial court heard testimony from the
following witnesses: (1) Jay's social worker; (2)
Jay's GAL; (3) Jay's foster parents, Mr. and Ms. C;
(4) the GAL for Jay's two older half-siblings who were
adopted by Mr. A and Ms. F; and (5) Ms. F. After receiving
all of the evidence, the trial court orally rendered its
decision to grant guardianship of Jay to Mr. and Ms. C and
entered a temporary order to that effect on 9 August 2017.
The temporary order stated that a final order would be
prepared and entered within thirty days.
September 2017, before the final order from the hearing was
entered, respondent filed a motion to re-open the evidence
for the purpose of presenting expert testimony. The trial
court granted the motion, and a hearing on the motion was
held on 8 November 2017. At the hearing, the trial court
heard testimony from two psychologists regarding the impact
on Jay of being removed from the foster home of Mr. and Ms. C
and being placed in the foster home of Mr. A and Ms. F with
two of his half-siblings. Dr. Stephanie Best was called by
counsel for respondent. Dr. Ginger Calloway, who was procured
to testify by Mr. and Ms. C, was called by Jay's GAL
attorney advocate and directly examined by counsel for Mr.
and Ms. C. On 12 February 2018, the trial court entered a
subsequent permanency planning order again awarding
guardianship of Jay to Mr. and Ms. C. The trial court further
ordered that respondent was to have no face-to-face
visitation with Jay, but she could have telephonic
communication with him as monitored by Mr. and Ms. C.
Respondent timely appealed.
preliminary matter, we note that Mr. and Mrs. C's brief
submitted to this Court is entitled
"Guardians-Appellees' Motion to Dismiss and
Brief" and contains a section requesting that
respondent's appeal be dismissed due to lack of standing.
well established that "[m]otions to an appellate court
may not be made in a brief but must be made in accordance
with N.C. R. App. P. 37." Horton v. New South Ins.
Co., 122 N.C.App. 265, 268, 468 S.E.2d 856, 858 (1996)
(citation omitted); see also Smithers v. Tru-Pak Moving
Sys., 121 N.C.App. 542, 545, 468 S.E.2d 410, 412 (1996)
("[The] [d]efendant's motion to dismiss
plaintiff's appeal is not properly before us. A motion to
dismiss an appeal must be filed in accord with Appellate Rule
37, not raised for the first time in the brief as defendant
has done here." (citation omitted)). Because Mr. and Ms.
C have not filed a motion to dismiss respondent's appeal
in accordance with Rule 37, the motion to dismiss contained
in their brief is not properly before this Court.
however, compelled to address whether respondent has standing
to appeal. "Standing is jurisdictional in nature and
[c]onsequently, standing is a threshold issue that must be
addressed, and found to exist, before the merits of [the]
case are judicially resolved." In re T.M., 182
N.C.App. 566, 570, 643 S.E.2d 471, 474 (2007) (alterations in
original) (citation omitted). "As the party invoking
jurisdiction," respondent has the burden of proving that
she has standing to file an appeal. In re T.B., 200
N.C.App. 739, 742, 685 S.E.2d 529, 532 (2009) (citation
Juvenile Code provides that an appeal may be taken to this
Court from "[a]ny order, other than a nonsecure custody
order, that changes the legal custody of a juvenile."
N.C. Gen. Stat. § 7B-1001(a)(4) (2017). Under General
Statutes, section 7B-1002(4), "[a] parent . . . who is a
nonprevailing party" may bring an appeal. Id.
§ 7B-1002(4) (2017).
case, both statutory requirements are satisfied. First, the
trial court's 12 February 2018 permanency planning order
awarding guardianship of Jay to Mr. and Ms. C changed legal
custody of Jay from DSS to Mr. and Ms. C. See id.
§ 7B-600(a) (2017) (providing, in relevant part, that
"[t]he guardian shall have the care, custody, and
control of the juvenile"). Second, respondent is
Jay's parent who was a "nonprevailing party"
below. "A prevailing party is defined as one in whose
favor the decision or verdict is rendered and judgment
entered[.]" T.B., 200 N.C.App. at 746, 685
S.E.2d at 534 (alteration in original) (quoting House v.
Hillhaven, Inc., 105 N.C.App. 191, 195, 412 S.E.2d 893,
896 (1992)). At the subsequent permanency planning hearing,
respondent's counsel argued that Jay should be placed in
the foster home of Mr. A and Ms. F, and she objected to Mr.
and Ms. C being granted guardianship of Jay. Contrary to
respondent's request, the trial court awarded
guardianship of Jay to Mr. and Ms. C, thereby declining to
place him with Mr. A and Ms. F. Because the trial court
failed to grant respondent's request, she has
demonstrated that she was a nonprevailing party. Cf.
id. at 746, 685 S.E.2d at 534 (concluding the maternal
grandmother was not a nonprevailing party when the trial
court granted her requests that the paternal grandmother and
her husband not be awarded permanent physical custody and
that she be granted visitation privileges).
support of their argument that respondent lacks standing to
challenge the trial court's permanency planning order
appointing them as Jay's guardians, Mr. and Ms. C cite to
this Court's opinion In re C.A.D., 247 N.C.App.
552, 786 S.E.2d 745 (2016). In C.A.D., the
respondent-mother argued that the trial court erred by
ceasing reunification efforts in a permanency planning order
because her children should have been placed with their
maternal grandparents. Id. at 563, 786 S.E.2d at
751. The maternal grandparents were the former custodians of
at least one of the juveniles involved in the case and could
have appealed from the order at issue, but they did not.
Id. at 556, 786 S.E.2d at 747. This Court held that
the respondent-mother lacked standing to raise the argument
because she was not aggrieved by the trial court's
[T]he maternal grandparents have not appealed the trial
court's permanency plan. They do not complain of the
court's findings of fact or conclusions of law, and they
do not complain they were injuriously affected by the trial
court's decision to pursue adoption. [The] [r]espondent
cannot claim an injury on their behalf. Therefore, she has no
standing to raise . . . [this] claim.
Id. at 563, 786 S.E.2d at 752.
instant case is distinguishable from C.A.D. Here,
Mr. A and Ms. F were not parties to the case and could not
have independently appealed from the trial court's 12
February 2018 order. See N.C. Gen. Stat. §
7B-1002 (enumerating the proper parties to take an appeal).
Respondent is not attempting to present a claim on behalf of
Mr. A and Ms. F, but instead asserts her own parental
interest in having Jay placed in a foster home with two of
his half-siblings. See In re D.S., __ N.C.App. __,
__, 817 S.E.2d 901, 904-05 (2018) (holding respondent-father
had standing to contend on appeal that the trial court erred
in failing to consider placement with the paternal