Opinion
No. COA13–72.
2013-08-6
In the MATTER of A.D., B.L., S.M.-D.
Dean W. Hollandsworth for petitioner-appellee. Hunt Law Group, P.C., by James A. Hunt, for respondent-appellant.
Appeal by respondent from order entered 31 October 2012 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 11 June 2013. Dean W. Hollandsworth for petitioner-appellee. Hunt Law Group, P.C., by James A. Hunt, for respondent-appellant.
Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for guardian ad litem-appellee.
GEER, Judge.
Respondent mother appeals from a permanency planning order granting custody of two of her minor children—A.D. (“Alice”) and B.L. (“Becky”)—to the girls' fathers. Respondent mother primarily contends on appeal that the trial court violated the requirements of N.C. Gen.Stat. § 7B–911 (2011) when it entered a single order that both (1) terminated the court's jurisdiction in this juvenile proceeding under Chapter 7B of the General Statutes and (2) also entered a civil custody order under Chapter 50 of the General Statutes. This court has already considered and rejected this argument in In re A.S. & S.S., 182 N.C.App. 139, 641 S.E.2d 400 (2007). Because we find respondent mother's remaining argument unpersuasive, we affirm the order of the trial court.
The pseudonyms “Alice” and “Becky” are used throughout this opinion to protect the privacy of the minor children and for ease of reading. The girls' brother is referred to by the pseudonym “Sam.”
Facts
On 13 October 2011, the New Hanover County Department of Social Services (“DSS”) filed a petition asserting that Alice, Becky, and their brother Sam were neglected juveniles. The petition alleged that the juveniles did not receive proper care, supervision, or discipline from respondent, were not provided necessary medical care, and lived in an environment injurious to their welfare.
The petition specifically alleged that respondent mother had been diagnosed with attention deficit hyperactivity disorder (“ADHD”), mood disorder not otherwise specified, and cluster B personality traits, including antisocial, borderline, histrionic, and narcissistic personality disorders. Respondent mother had been receiving counseling for her mental health conditions, but she discontinued the counseling and allowed her Medicaid coverage to lapse. According to the DSS petition, respondent mother's failure to treat her conditions led to her inappropriately disciplining the children such as by slapping Alice and using a belt to punish Becky.
In addition, respondent mother had not cooperated with administering Sam's medicine for ADHD and had neglected to make a follow up appointment after Sam's sleep study for treatment of sleep disorders. Further, respondent mother was on probation following her conviction for truancy because of the children's excessive absences from school. At the time of the petition, she had additional truancy charges pending.
DSS was granted nonsecure custody of the three children. In an order entered 9 November 2011, the trial court authorized placement of the three children with their maternal grandparents. That order also granted Alice's and Becky's fathers the visitation that they had been awarded in their separate civil custody actions.
On 23 January 2012, the juveniles were adjudicated neglected after all parties stipulated to the allegations set out in the petition. In its disposition, the trial court continued custody with DSS and placement of the children with their maternal grandparents. The trial court ordered that respondent mother comply with the conditions of her Family Services Agreement, which included successful completion of parenting classes, participation in a mental health assessment, and completion of all treatment recommendations resulting from that assessment.
Following a review hearing held on 19 April 2012, the trial court entered an order on 18 May 2012 continuing custody with DSS, but authorizing placement of Alice and Becky with their respective fathers. Sam continued to be placed with his grandparents.
On 1 October 2012, the trial court held a permanency planning review hearing. The court entered an order on 31 October 2012 finding that DSS had made reasonable efforts to prevent or eliminate the need for placement outside of the home, including facilitating weekly contacts between respondent mother and her children, referring respondent mother to prescription assistance programs, providing monthly assistance purchasing medication, and providing respondent mother with monthly monetary assistance. Despite those efforts, respondent mother had failed to comply with court-ordered mental health treatment. The trial court found that it was not possible to return custody of the children to respondent mother and that further reunification efforts would “be clearly futile and inconsistent with the Juveniles' health, safety, and need for a safe, permanent home within a reasonable period of time and, as such, efforts by [DSS] at reunification of the Juveniles with the Respondent–Mother should be ceased.”
The trial court found that Alice and Becky had made “remarkable progress” during the time they had been placed with their fathers and that Sam had likewise flourished under the care of his grandparents. The trial court granted legal guardianship of Sam to his maternal grandmother and step-grandfather and granted sole legal custody of Alice and Becky to their respective fathers. The trial court granted respondent mother visitation.
The trial court further found that there was “no need for continued state intervention on behalf of [Alice and Becky]” and that the court was “awarding sole custody to a parent.” The trial court, therefore, directed:
This Order shall be filed in the existing Civil Court actions concerning [Becky] designated as New Hanover County File No.: 11 CVD 1990 and [Alice], designated as New Hanover County File No.: 11 CVD 1722 as a modification of the existing Custody Order and a custody determination respectively pursuant to N.C.G.S. § 7B–911 and any subsequent motions to modify or enforce this Order shall be filed in such civil actions and the Juvenile actions concerning these two children shall be hereby be [sic] terminated upon the filing of this Order in the Civil actions, whereby this Order shall be in full force and effect and subject to subsequent modification by filing a Motion in the Cause.
Respondent mother timely appealed from the permanency planning review order.
I
Respondent mother first argues that the trial court failed to comply with N.C. Gen.Stat. § 7B–911(c) when it entered an order terminating the juvenile court's jurisdiction under Chapter 7B of the General Statutes and ordering that the Chapter 7B order also be filed in the Chapter 50 civil custody case. N.C. Gen.Stat. § 7B–911(c) provides:
The court may enter a civil custody order under this section and terminate the court's jurisdiction in the juvenile proceeding only if:
(1) In the civil custody order the court makes findings and conclusions that support the entry of a custody order in an action under Chapter 50 of the General Statutes or, if the juvenile is already the subject of a custody order entered pursuant to Chapter 50, makes findings and conclusions that support modification of that order pursuant to G.S. 50–13.7; and
(2) In a separate order terminating the juvenile court's jurisdiction in the juvenile proceeding, the court finds:
a. That there is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding; and
b. That 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.
Respondent mother contends that N.C. Gen.Stat. § 7B–911(c) required the trial court to enter two separate orders: one in the juvenile proceeding terminating the court's jurisdiction and a second distinct order filed in the civil custody action awarding custody under Chapter 50. This Court rejected that precise argument in In re A.S., 182 N.C.App. at 142, 641 S.E.2d at 402, holding that under N.C. Gen.Stat. § 7B–911(c), “there is no requirement that the trial court enter two different orders. The trial court may enter one order for placement in both the juvenile file and the civil file as long as the order is sufficient to support termination of juvenile court jurisdiction and modification of custody.”
We are bound by In re A.S. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Since respondent mother does not argue that the order's findings were deficient under N.C. Gen.Stat. § 7B–911(c), we hold that the trial court properly complied with the statute.
II
Respondent mother next argues that the trial court violated N.C. Gen.Stat. § 7B–906(b)(1) (2011) when it waived further review hearings without making any finding of fact that the girls had “resided with a relative or ha [d] been in the custody of another suitable person for a period of at least one year.” N.C. Gen.Stat. § 7B–906(b)(1) does not, however, apply with respect to Alice and Becky.
Respondent mother has appealed a permanency planning order entered pursuant to N.C. Gen.Stat. § 7B–907 (2011). N.C. Gen.Stat. § 7B–907(c) specifically provides that “[i]f at any time custody is restored to a parent, or findings are made in accordance with G.S. 7B–906(b), the court shall be relieved of the duty to conduct periodic judicial reviews of the placement.” Here, the trial court, in its permanency planning order, ended DSS' custody of Alice and Becky and returned custody to one of their parents, their fathers. As a result, under N.C. Gen.Stat. § 7B–907(c), the trial court was no longer required to conduct review hearings. No findings under N.C. Gen.Stat. § 7B–906(b) were necessary.
Moreover, the trial court properly terminated its juvenile jurisdiction pursuant to N.C. Gen.Stat. § 7B–911, leaving any future issues to be decided as part of the civil custody case pending under Chapter 50. N.C. Gen.Stat. § 7B–906 is no longer pertinent to this case. Because respondent mother makes no other argument regarding the order, we affirm.
Affirmed. Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).