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In re J.L.

Court of Appeals of North Carolina

March 19, 2019

IN THE MATTER OF: J.L.

          Heard in the Court of Appeals 28 February 2019.

          Appeal by respondent-mother from order entered 12 February 2018 by Judge Paul A. Holcombe, III, in Johnston County No. 16 JA 198 District Court.

          No brief filed for petitioner-appellee Johnston County Department of Social Services.

          Jeffrey L. Miller for respondent-appellant mother.

          Marie H. Mobley for guardian ad litem.

          Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, for guardian-appellees.

          BRYANT, JUDGE.

         Respondent, the mother of the minor child J.L. ("Jay"), [1] 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 affirmed.

         Two 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;[2] (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.

         A 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 during visitations.

         After a 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.

         A 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.

         On 1 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.

         Standing

         As a 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.

         It is 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.

         We are, 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 omitted).

         The 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).

         In this 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).

         In 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 decision, stating:

[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.

         The 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 grandmother ...


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