Opinion
No. COA10-970
Filed 18 January 2011 This case not for publication
Appeal by respondent from orders entered 11 June 2009 by Judge Regina R. Parker in Beaufort County District Court. Heard in the Court of Appeals 21 December 2010.
Alice Anne Espenshade for petitioner-appellee. Richard E. Jester for respondent-appellant mother. Pamela Newell for guardian ad litem.
Beaufort County Nos. 09 JA 19 09 JA 20.
Respondent-mother Katrina H. appeals from the trial court's permanency planning orders granting custody of her two children, F.H. and T.W., to their maternal aunt and relieving Beaufort County Department of Social Services ("DSS") of further efforts toward reunification with respondent. After careful review, we affirm the trial court's orders.
Facts
On 24 February 2004, DSS received a report that F.H. had been sexually abused by her grandfather. After conducting an investigation and providing treatment services, DSS closed the case in November 2004. Respondent retained custody of the juveniles and promised she would keep F.H. away from her grandfather.
In December 2008, DSS received reports that respondent had allowed F.H. to be in the presence of her grandfather. After an investigation, DSS substantiated emotional abuse of the juveniles and that they lived in an environment injurious to their welfare. DSS filed juvenile petitions on 19 March 2009, in which it alleged F.H. was an abused and neglected juvenile and that T.W. was a neglected juvenile. DSS did not seek nonsecure custody of the juveniles when it filed the petitions.
After a hearing on 14 August 2009, the trial court filed juvenile adjudication orders for each juvenile, in which the court concluded that the juveniles were neglected. The trial court entered separate disposition orders on 27 October 2009 and amended disposition orders on 1 and 8 December 2009. The trial court ordered placement of T.W. to continue with a cousin and placement of F.H. to continue with the juveniles' maternal aunt. The court further ordered DSS to work with respondent on the case plan for reunification. In furtherance of the plan for reunification, the trial court ordered respondent to: (1) abstain from all drug use, and submit samples for drug testing as requested by her social worker; (2) seek stable housing that she could independently maintain; (3) work with her mental health case manager and accept community support services if she qualified for them; (4) seek advice on improving management of her diabetes and demonstrate better control of her blood sugar levels; (5) consult with her therapist and consider medication to reduce her symptoms of depression; (6) continue to regularly attend and participate in individual therapy; and (7) participate in F.H.'s therapy when requested by F.H.'s therapist. Respondent did not appeal from the adjudication or the disposition orders.
On 26 March 2010, the trial court held a combined review and permanency planning hearing for both juveniles and entered separate orders for each juvenile on 11 June 2010. The court awarded legal custody of both juveniles to their maternal aunt. The court also relieved DSS of its duty to work toward reunification of the juveniles with respondent, and relieved the guardian ad litem program from further duties in the case. Respondent timely appealed to this Court from the trial court's 11 June 2010 permanency planning orders.
I
As an initial matter, we note that because the trial court's permanency planning orders legally changed custody from respondent to the juveniles' maternal aunt, respondent is permitted to appeal the court's orders pursuant to N.C. Gen. Stat. § 7B-1001(a)(4) (2009), which provides that "[a]ny order, other than a nonsecure custody order, that changes legal custody of a juvenile" is immediately appealable. This Court, therefore, has jurisdiction to review the trial court's orders. See In re J.V., 198 N.C. App. 109, 111, 679 S.E.2d 843, 844-45 (2009) (finding jurisdiction to review permanency planning order pursuant to N.C. Gen. Stat. § 7B-1001(a)(4) where order modified custody of juvenile).
II
Turning to respondent's arguments on appeal, she first challenges the trial court's determination under N.C. Gen. Stat. § 7B-907(b) (2009) that the juveniles should not be returned to her custody within six months. Specifically, respondent maintains that, because DSS initially filed the abuse, neglect, and dependency petitions in this case due to "[F.H.]'s exposure to possible sexual abuse" by her grandfather, and because "[t]hat situation has been completely resolved[,]" the trial court could not, in determining whether the juveniles should be returned to respondent's custody, base its decision on respondent's failure to "check off" those items included in her court-ordered case plan that are "unrelated" to the alleged sexual abuse.
Respondent is correct in that DSS initially became involved in this case due to reports of renewed contact between F.H. and her grandfather. The removal of the risk of sexual abuse, however, is not determinative in this case. During DSS' investigation into the reports, it identified respondent's mental health and substance abuse problems as risks of harm to the juveniles. Dr. Raymond Webster determined respondent suffered from schizoaffective disorder, bipolar type, and noted emerging schizophrenia of the paranoid type. Dr. Webster also "found [respondent] to be in a chronic state of anxiety, fearfulness, hopelessness and having an incapacity for joy." DSS received another report on 17 April 2009 involving "improper care, injurious environment, improper supervision and substance abuse." Upon investigation, every adult member of the juveniles' household "tested positive for recent marijuana use."
On 20 August 2009, the trial court entered initial adjudication orders in which the court concluded that F.H. and T.W. were neglected juveniles. The trial court noted in its order that respondent had "consent[ed] to the entry" of findings of facts "sufficient to sustain a conclusion of law that [the juveniles] [are] neglected juvenile[s], as that term is defined in N.C.G.S. Sec. 7B-101." In its initial disposition orders, entered 27 October 2009, the trial court explained that "[s]ince the filing of the petition[s], mother has agreed to work towards the goals set out in her case plan, to address substance abuse, depression, and better management of her diabetes." The court then ordered respondent, "in furtherance of the plan for reunification," to:
A. [A]bstain from all drug use, and submit samples for drug testing as requested by her social worker.
B. Seek stable housing that she can maintain on her own.
C. Work with her mental health case manager, and accept community support services if she qualifies for same.
D. Seek advice on improving management of her diabetes, and demonstrate better control of blood sugars.
E. Consult with her therapist, and consider medication to reduce depressive symptoms.
F. Continue to regularly attend and participate in individual therapy.
The trial court further noted in its disposition orders that respondent had "concur[red] in the specific recommendations made in [DSS' court summary, the guardian ad litem's court report, and respondent's psychological evaluation], and in the proposed case plan."
Nothing in the record suggests that respondent, contrary to the court's orders, objected during the initial disposition hearing to any specific requirement being included in her case plan. Nor does respondent argue on appeal that she objected to the requirements of the case plan. More importantly, respondent did not appeal the initial adjudication and disposition orders. See N.C. Gen. Stat. § 7B-1001(a)(3) (making "[a]ny initial order of disposition and the adjudication order upon which it is based" immediately appealable); In re T.B., ___ N.C. App. ___, ___, 685 S.E.2d 529, 532 (2009) ("An appeal may be taken from an order of disposition following an adjudication of neglect, abuse, or dependency."). Thus, the propriety of those orders is not before this Court.
As for the trial court's 11 June 2010 permanency planning orders, which are properly before this Court, respondent does not contend that the evidence in the record does not support the court's findings of fact or that its findings do not support its conclusions of law. Rather, respondent simply claims that she should not have been required to complete as part of her plan for reunification any items unrelated to the sexual abuse. At its core, respondent's argument is an attempt to challenge the necessity of the tasks she was ordered to accomplish in the initial disposition orders — an issue beyond the scope of this appeal. Respondent's argument is overruled.
III
Respondent also argues that the trial court erred in leaving visitation "arrange[ments]" to the discretion of the juveniles' aunt. We, however, take judicial notice of the trial court's subsequent order, entered 4 October 2010, in which it sets out a detailed visitation plan. See In re H.D.F., 197 N.C. App. 480, 492, 677 S.E.2d 877, 885 (2009) (taking judicial notice of subsequent order granting custody to parent). In its 4 October 2010 order, the trial court grants respondent, with specific restrictions, visitation with the juveniles in her home "on the second and fourth Sunday of each month, from one to three p.m." as well as any other times on which she and the juveniles' aunt agree. As the relief respondent requested on appeal has been granted, we dismiss her argument as moot. See id. (dismissing as moot parent's challenge to trial court's determination that it was in child's best interest to remain in foster care when trial court entered subsequent order awarding custody to parent). The trial court's 11 June 2010 orders are affirmed.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).