Opinion
No. 04-1517.
Filed January 3, 2006.
Cumberland County Nos. 01 J 255-256.
Appeal by respondent-mother from an order entered 1 December 2003 by Judge Richard T. Brown in Cumberland County District Court. Heard in the Court of Appeals 20 September 2005.
John F. Campbell for petitioner-appellee Cumberland County Department of Social Services. Attorney Advocate Jodi P. Carpenter for appellee Guardian ad Litem. Katharine Chester for respondent-appellant.
Respondent-mother, M.S., appeals an order granting physical custody of her two minor children, J.S. and P.S. to their paternal grandparents, currently residing in California. For the following reasons, we dismiss this appeal.
Initials have been used throughout to protect the identity of the juveniles.
Facts and Procedural History
On 9 October 1999, an incident report was filed at Fort Bragg stating that M.S. had been assaulted by her husband. The Cumberland County Department of Social Services (DSS) became involved because of the incident of domestic violence and drafted a case plan focusing on protecting the children from domestic violence in December 1999. Respondent-mother was told by DSS that she needed to protect her children from being in an injurious environment created by domestic violence.
Respondent-mother engaged in counseling with a therapist who identified father as abusive, and recommended she get a protective order. DSS continued to write case plans requiring the children be protected from their father and respondent-mother continued in counseling for herself and for her children, but was warned that, unless she could protect her children from the violence of their father, a Petition would be filed.
This case was commenced when the Cumberland County Department of Social Services filed a Petition on 14 May 2001 alleging that J.S. and P.S. were neglected and dependent. Non-secure custody was continued for more than a year before the Adjudication/Disposition hearing was held on 24 June 2002. Home studies were ordered on relatives in California, and the children continued in foster care, with the parents having visitation.
A Permanency Planning Hearing was held on 20 September 2002. A second Permanency Planning Hearing was scheduled and continued several times, coming on for hearing at the 20 March 2003 session of Juvenile Court, Cumberland County, before the Honorable Richard T. Brown, District Court Judge. Testimony continued on 5 June, 24-25 June, July 25, and 11 August 2003.
The trial court entered an Order on 24 November 2004 placing the children with their paternal grandparents. The trial court found that it had "concerns" about the respondent-mother's mental health. It concluded that, while both sets of grandparents could provide homes for the children, the children should be placed with the paternal grandparents where there would be "more detachment and less interference by the respective parents until the parents have addressed and resolved the issues which concern the [c]ourt." The trial court ordered that the children be in the physical custody of the paternal grandparents in California, but ordered that they remain in the legal custody of Cumberland County Department of Social Services. It further ordered that "there be extensive visitation for both parents in the home of their respective parent to be specifically determined by the appropriate supervising California agency." Respondent-mother appeals pursuant to N.C. Gen. Stat. § 7B-1001.
The dispositive issue in this matter is whether the trial court's order is a final order from which respondent-mother may appeal. Respondent-mother asserts the trial court's order is a final order of disposition following adjudication. We disagree and dismiss this appeal.
Section 7B-1001 of the North Carolina General Statutes states:
Upon motion of a proper party as defined in G.S. 7B-1002, review of any final order of the court in a juvenile matter under this Article shall be before the Court of Appeals. . . . A final order shall include:
(1) Any order finding absence of jurisdiction;
(2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;
(3) Any order of disposition after an adjudication that a juvenile is abused, neglected, or dependent; or
(4) Any order modifying custodial rights.
N.C. Gen. Stat § 7B-1001 (2003). This Court recently held:
the statutory language of G.S. § 7B-1001(3), referring to an "order of disposition after an adjudication that a juvenile is abused, neglected, or dependent", means the dispositional order that is entered after an adjudication under G.S. § 7B-905, and does not mean every permanency planning, review, or other type of order entered at some unspecified point following such a disposition.In re B.N.H., ___ N.C. App. ___, ___, 611 S.E.2d 888, 890, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005). However, an order which changes the permanency plan falls under Section 7B-1001(3) and may be appealed. In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 136-37 (2003) (order changing the disposition from reunification to termination appealable under Section 7B-1001(3)).
The order appealed here did not change the permanency plan for the juveniles. The order places physical custody with the paternal grandparents and continues legal custody with the Cumberland County Department of Social Services, to be transferred to the appropriate supervising California agency when the children are placed with their paternal grandparents. There is no mention of a change in the permanency plan of reunification with the parents, and the trial court specifically orders that there shall be "extensive visitation for both parents. . . ."
Physical custody of the children was transferred to their paternal grandparents pursuant to the Interstate Compact on the Placement of Children (ICPC), as set out in N.C. Gen. Stat. §§ 7B-3800-3806. Under the ICPC, the Cumberland County Department of Social Services "shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in [North Carolina]. . . ." N.C. Gen. Stat. § 7B-3800, art. V(a) (2003). Furthermore, "[s]uch jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law." Id.
Thus, the trial court's order is not a final order appealable under N.C. Gen. Stat. § 7B-1001. The order does not make a finding of an absence of jurisdiction; does not determine the action and prevent a judgment from which an appeal might be taken; is not an order of disposition after an adjudication that a juvenile is abused, neglected, or dependent; and does not modify the parents custodial rights. Accordingly we dismiss respondent-mother's appeal.
Dismissed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).