Summary
holding that subsequent termination of parental rights renders a parent's appeal from a permanency planning order moot
Summary of this case from In re H.N.D.Opinion
No. COA03-766
Filed June 15, 2004
Appeal and Error — appealability — permanency planning order — termination of parental rights — mootness
Respondent mother's appeal from a permanency planning order making adoption the permanent plan for her minor child is dismissed as moot, because: (1) while the appeal was pending, the trial court entered a termination of parental rights (TPR) order, and any findings in the permanency planning order that are also in the TPR order are superceded by the latter; (2) the TPR order was based upon N.C.G.S. § 7B-1111(a)(9) and does not rely on the permanency planning order that is the subject of this appeal; and (3) even if the Court of Appeals were to reverse the trial court's order making adoption the permanent plan for the minor child, this action would have no practical effect on the existing controversy.
Judge TIMMONS-GOODSON dissenting.
Appeal by respondent mother from order entered 14 April 2003 by Judge L. Suzanne Owsley in Burke County District Court. Heard in the Court of Appeals 29 March 2004.
Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services. Nancy Einstein Triebert, Attorney Advocate. Nancy R. Gaines for respondent-appellant. Juleigh Sitton, Guardian ad Litem.
Respondent mother (Angel Babcock) appeals from a permanency planning order making adoption the permanent plan for her minor child (hereinafter V.L.B.).
On 17 June 2002 the Burke County Department of Social Services (DSS) filed a Juvenile Petition alleging neglect. On 19 August 2002, the trial court entered an order, based upon the stipulations of the parties, that (1) the allegations of neglect in the petition were true, and (2) V.L.B. was a dependent juvenile within the meaning of N.C.G.S. § 7B-101(9). The court continued disposition until psychological evaluations could be obtained. In the meantime, custody remained with DSS, as the court concluded reunification was not in the best interest of V.L.B. at that time. On 6 January 2003, following a permanency planning hearing, the trial court entered an order setting adoption as the permanent plan for V.L.B. Respondent gave notice of appeal from this 6 January order, assigning as error the trial court's failure to make adequate findings of fact pursuant to N.C.G.S. § 7B-907.
This appeal does not concern the variance between the allegations of neglect in the petition and the court's conclusion of dependency.
On 29 September 2003 the trial court entered an order terminating respondent-mother's parental rights over V.L.B. We grant the motions filed by DSS and the attorney advocate to dismiss this appeal as moot.
In determining whether an appeal should be dismissed as moot, this Court has held:
A case is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. Further, whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.
In re Stratton, 159 N.C. App. 461, 463, 583 S.E.2d 323, 324, appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003) (internal quotation marks and citations omitted).
In Stratton, the respondent appealed an adjudication of neglect and dependency alleging errors arising from conduct during the adjudication hearing as well as insufficiency of the evidence. While the appeal was pending, the trial court entered a termination of parental rights (TPR) order. This Court took judicial notice of the TPR order and dismissed the appeal as moot. This Court held, inter alia, that the issues raised on appeal had been rendered "academic" by the subsequent TPR order. This Court reasoned that the findings in the adjudication ordered were superceded by the subsequent findings in the TPR order, and that the trial court had made an "entirely independent" determination of neglect. Id. at 463, 583 S.E.2d at 324.
The purposes associated with a permanency review hearing are "to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C.G.S. § 7B-907(a) (2003). These hearings are generally held "within 12 months after the date of the initial order removing custody" and every six months thereafter. Id. The criteria set forth in N.C.G.S. § 7B-907(b) (2003) are designed to ensure that courts adhere to the purposes of the statute. Significantly, we observe there is little alignment between the criteria set forth in G.S. § 7B-907(b), and the grounds for termination of parental rights set forth in N.C.G.S. § 7B-1111(a) (2003).
The 29 September 2003 TPR order addressing respondent's parental rights over V.L.B. is based upon G.S. § 7B-1111(a)(9) (termination of parental rights as to other children), and does not rely on the permanency planning order that is the subject of this appeal. Indeed, the court, after hearing the testimony of witnesses and admitting the entire "court file" into evidence, made independent findings and conclusions that do not rely on the permanency planning order. In the present case, like Stratton, any findings in the permanency planning order that are also in the TPR order are superceded by the latter. Accord In re N.B., 163 N.C. App. 182, 184, ___ S.E.2d ___, ___ (2004). These circumstances, together with (1) our observation concerning the lack of a direct relationship between the criteria in G.S. § 7B-907(b) and the grounds in G.S. § 7B-1111(a), and (2) our reliance on the principles in Stratton, lead us to an inescapable conclusion that the present appeal has become moot.
For example, while one of the findings of fact in the permanency review order on appeal is that respondent "had her parental rights to 5 prior children terminated[,]" the TPR order reveals respondent admitted the same in a responsive pleading to the TPR motion.
In relying on Stratton and N.B., we recognize that we are necessarily failing to follow the reasoning and holding set forth in In re Hopkins, 163 N.C. App. 38, 42-43, ___ S.E.2d ___, ___ (2004). We observe that, although there has been some recent effort to reconcile these two lines of cases, In re J.C.S. and R.D.S., 164 N.C. App. 96, 102-03, ___ S.E.2d ___, ___ (2004), the lines are, in practice, irreconcilable.
Like our colleague in the dissent, we appreciate the importance of providing review to orders of the trial division. However, we fail to discern how any decision related to the present appeal can have any practical effect on the juvenile or the respondents. Moreover, we have less confidence than the dissent in this Court's practical ability to "deny review to fruitless appeals" or "sanction . . . recalcitrant attorneys and parties that file them." Likewise, this Court has not generally resolved juvenile appeals within a time frame that would enable county social services agencies to comport with their statutory duty to file petitions for termination of parental rights within certain time frames prescribed in N.C.G.S. § 7B-907(e) (2003) (requiring petition to be filed within 60 calendar days from the date of permanency planning hearing). The dissent, like Hopkins, fails to account for this clear legislative mandate and could give parents the power to indefinitely suspend entry of a TPR by taking repeated appeals.
Even if this Court were to reverse the trial court's order making adoption the permanent plan for V.L.B., this would have no practical effect on the existing controversy.
Dismissed as moot.
Judge THORNBURG concurs.
Judge TIMMONS-GOODSON dissents.