Opinion
No. COA11–1593.
2012-05-15
In the Matters of H.G., A.H., and C.H., All Minor Children.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir–Peek, for appellee G.W. Richard Croutharmel for respondent-appellant mother.
Appeal by mother from order entered 29 September 2011 by Judge Michael D. Duncan in Yadkin County District Court. Heard in the Court of Appeals 2 May 2012. Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir–Peek, for appellee G.W. Richard Croutharmel for respondent-appellant mother.
Pamela Newell for guardian ad litem.
STEELMAN, Judge.
All hearings and orders that are the subject of this appeal were conducted after the issuance of the mandate by the Court of Appeals in a prior appeal. The orders entered by the trial court contained sufficient findings to support its termination of the juvenile proceedings and transfer of the matter to a civil custody proceeding.
I. Factual and Procedural History
G.W. (G.W.), the maternal step-grandmother of the juveniles H.G., A.H., and C.H. (juveniles), was awarded custody of the juveniles in a civil custody action filed on 28 September 2009. S.H. (mother) is the mother of the juveniles. On 31 December 2009, the Yadkin County Department of Social Services (DSS) filed a petition alleging that the juveniles were neglected. On 3 June 2010, Judge Jeanie R. Houston entered an order adjudicating the juveniles neglected. In a 20 September 2010 disposition order, Judge Houston placed the juveniles in the custody of DSS; ordered mother to comply with an out-of-home family services plan designed by DSS; and ordered DSS to continue reasonable efforts toward reunification with mother, but to cease reunification efforts with G.W. Judge Houston also ordered an updated home study of mother's South Carolina home. G.W. appealed.
Judge David V. Byrd temporarily placed the juveniles with G.W. in an order entered on 3 February 2011. Judge Byrd entered another permanency planning order on 27 June 2011, in which he found that G.W. was the best placement option for the juveniles and ordered that the permanent plan remain reunification. Judge Byrd also ordered DSS to monitor G.W.'s home and her progress.
On 19 July 2011, this Court filed an opinion affirming Judge Houston's 3 June 2010 adjudication and 20 September 2010 disposition orders. In re H.G., –––N.C.App. ––––, 714 S.E.2d 276 (2011) (unpublished). On 29 September 2011, Judge Duncan entered a permanency planning order. Judge Duncan ordered that the juveniles be returned to G.W.'s physical and legal custody. Judge Duncan terminated the jurisdiction of the juvenile court and ordered that a new civil custody order be filed. On 29 September 2011, Judge Duncan also entered a separate Amended Civil Custody Order, in which he found DSS intervention was no longer necessary and awarded custody of the juveniles to G.W.
Mother appeals.
II. Trial Court's Authority
Mother first argues that Judge Duncan lacked the authority to enter the permanency planning order placing the juveniles in G.W.'s custody because that order was inconsistent with Judge Houston's disposition order on 20 September 2010 and because Judge Houston's order was the subject of a pending appeal. We disagree.
In any case where a court removes a juvenile from a parent or guardian's custody, the court “shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter.” N.C. Gen.Stat. § 7B–906(a) (2011). The court is also required to conduct a permanency planning hearing within 12 months of the date of the dispositional order removing custody. N.C. Gen.Stat. § 7B–907(a) (2011). After a custody review or permanency planning hearing, the trial court “may make any disposition authorized by G.S. 7B–903, including the authority to place the juvenile in the custody of either parent or any relative found by the court to be suitable” and found by the court to be in the best interests of the juvenile. N.C. Gen.Stat. § 7B–906(d); N.C. Gen.Stat. § 7B–907(c).
In the instant case, Judge Duncan conducted a permanency planning hearing and entered a permanency planning order. In so doing, Judge Duncan made specific findings addressing the changes in the condition of G.W.'s home. Judge Duncan entered an appropriate order based on changed circumstances in this case. Judge Duncan satisfied the trial court's statutory duties to monitor the juveniles' best interests following a change in custody and to enter subsequent orders providing for their best interests.
Mother further argues that the appeal from Judge Houston's order was pending at the time that Judge Byrd entered an order. Mother contends that Judge Byrd's order formed the basis for Judge Duncan's permanency planning order that is the subject of this appeal.
During the pendency of an appeal, a trial court may not exercise its jurisdiction “until the appeal is resolved and the mandate has issued.” In re M.I.W., ––– N.C. ––––, ––––, 722 S.E.2d 469, 473 (2012). See alsoN.C. Gen.Stat. § 7B–1003 (2011). “Exercising jurisdiction, in the context of the Juvenile Code, requires putting the court's jurisdiction into action by holding hearings, entering substantive orders or decrees, or making substantive decisions on the issues before it.” M.I.W., ––– N.C. at ––––, 722 S.E.2d at 473.
In the instant case, this Court filed its opinion in the appeal from Judge Houston's orders on 19 July 2011. The mandate issued 20 days later, on 8 August 2011. Judge Duncan held hearings on 15 September 2011 and 22 September 2011. Judge Duncan entered the permanency planning order on 29 September 2011. The trial court acted within the parameters of N.C. Gen.Stat. § 7B–1003.
This argument is without merit.
III. Findings of Fact
In her remaining argument, mother contends that Judge Duncan violated N.C. Gen.Stat. § 7B–911(c) by failing to make sufficient findings of fact when he terminated jurisdiction over the Chapter 7B action and transferred the matter for entry of a civil custody order. We disagree.
The trial court may terminate its jurisdiction in the juvenile proceeding only if the court finds in “a separate order terminating the juvenile court's jurisdiction” that “there is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding[.]” N.C. Gen.Stat. § 7B–911(c) (2011). “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.” In re A.S. & S.S., 182 N.C.App. 139, 142, 641 S.E.2d 400, 402 (2007).
In the instant case, the trial court's permanency planning order in the juvenile proceeding does not include a finding of fact specifically stating that there is not a need for continued State intervention on behalf of the juveniles. However, in the same order, the trial court found that G.W. is a “fit and proper person to have the primary custody and control” of the juveniles. The trial court also found that DSS recommended that custody be given to G.W. “because she has demonstrated that she is ready to be the primary caretaker” of the juveniles.
Moreover, in the civil custody order, the trial court specifically found that the juveniles “are no longer in need of services from the Yadkin County Department of Social Services or in need of continued state intervention through a juvenile proceeding. The jurisdiction of the Court in the juvenile proceeding terminates with the filing of this Custody Order.” The trial court's order, when viewed in conjunction with the civil custody order, contains the findings required by N.C. Gen.Stat. § 7B–911(c).
We note that mother entered notice of appeal only from Judge Duncan's permanency planning order. Mother did not appeal the civil custody order. The record on appeal that mother filed does not include the civil custody order. The civil custody order was added to the record through a supplement filed by the appellee. We have previously held that where a respondent fails to appeal from the civil custody order, the respondent cannot challenge that order in an appeal from a custody order entered in the Chapter 7B case. In re H.S.F., 182 N.C.App. 739, 744, 645 S.E.2d 383, 385–86 (2007).
This argument is without merit.
AFFIRMED. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).