Opinion
No. COA11–1224.
2012-04-17
In the Matter of J.N.M. and J.D.W.
James W. Spicer, III, for Petitioner Greene County Department of Social Services. Ivey, McClellan, Gatton & Talcott, L.L.P., by Charles M. Ivey, IV, for Guardian ad Litem.
Appeal by Respondent-mother from orders entered 28 June 2011 by Judge R. Les Turner in Greene County District Court. Heard in the Court of Appeals 27 March 2012. James W. Spicer, III, for Petitioner Greene County Department of Social Services. Ivey, McClellan, Gatton & Talcott, L.L.P., by Charles M. Ivey, IV, for Guardian ad Litem.
Sydney Batch for Respondent-mother.
STEPHENS, Judge.
Respondent-mother appeals from permanency planning orders that placed her minor children, J.N.M. (“Jean”) and J.D.W. (“James”), in the joint custody of their father and paternal grandmother.
Pseudonyms are used to protect the privacy of the children.
On 9 April 2010, Greene County Department of Social Services (“DSS”) filed juvenile petitions alleging that Jean and James were neglected juveniles in that they lived in an environment injurious to their welfare. The petitions alleged a history of domestic violence between Respondent-mother and her husband, as well as concerns about Respondent-mother's mental health status. On that same date, the trial court entered a nonsecure custody order placing the children in DSS custody. The children were adjudicated neglected on 20 August 2010. Following a permanency planning review hearing conducted on 18 April and 23 May 2011, by orders entered 28 June 2011, the trial court awarded joint custody of Jean and James to their father and paternal grandmother. Respondent-mother appeals, arguing that the trial court erred (1) in failing to follow the requirements of N.C. Gen.Stat. § 7B–907(f), (2) in terminating its jurisdiction of the matter, and (3) in granting custody of the juveniles to the father and paternal grandmother. Because we vacate the orders for failure to comply with section 7B–907(f), we do not address Respondent-mother's other arguments.
Respondent-mother's husband is the children's stepfather.
We note that the orders entered for each juvenile are identical except for the juvenile's name listed in the decretal portions.
Requirements of Section 7B–907
Respondent-mother argues that the trial court failed to follow the mandate of N.C. Gen.Stat. § 7B–907(f) to verify that the paternal grandmother understood the legal significance of being granted joint custody of the children or had the financial means to provide for them on a long-term basis. We agree.
We first consider whether section 7B–907(f) applies to the circumstances before us. In pertinent part, this statute provides:
If the court determines that the juvenile shall be placed in the custody of an individual other than the parents ... the court shall verify that the person receiving custody ... understands the legal significance of the placement or appointment and will have adequate resources to care appropriately for the juvenile.
N.C. Gen.Stat. § 7B–907(f) (2011) (emphasis added). Here, the court placed the juveniles in the joint physical and legal custody of their father and paternal grandmother. DSS and the Guardian ad Litem contend that, because the father retained custody, the requirements of section 7B–907(f) are not triggered. We are not persuaded. Where a nonparent gains legal custody of a child, she takes on responsibilities and privileges in making decisions on that child's behalf. For example, the orders here decree that the paternal grandmother is “granted authority to consent to medical, surgical, dental, psychiatric, psychological or other treatment” for the children. The responsibilities and privileges of a child's nonparent legal custodian are not reduced or alleviated simply because a biological parent also retains custody. Thus, we believe a trial court must ensure that the nonparent is aware of these responsibilities and privileges and is able to adequately provide for the juvenile's needs. As a result, we hold that the requirements of section 7B–907(f) apply where, as here, a nonparent is awarded joint legal custody with a parent. See In re B.G., 197 N.C.App. 570, 677 S.E.2d 549 (2009) (where this Court considered whether the trial court met the requirements of section 7B–907(f) after the trial court placed the juvenile with nonparent relatives, but awarded joint legal custody to the relatives and the father), appeal dismissed,––– N.C. ––––, 701 S.E.2d 324 (2010).
This Court has held that section 7B–907(f) requires the trial court to verify that a party receiving custody of a juvenile “understands the legal significance of the appointment ... and will have adequate resources to care” for the child, although it does not “require that the court make any specific findings in order to make the verification.” In re J.E., 182 N.C.App. 612, 616–17, 643 S.E.2d 70, 73 (concluding that evidence from a home study report that the nonparents could afford to care for the child and “appear to have a clear understanding of the enormity of the responsibility of caring for” the child showed that the trial court complied with section 7B–907(f)'s requirements), disc. review denied,361 N.C. 427, 648 S.E.2d 504 (2007).
Evidence before the trial court in this case showed that the paternal grandmother worked full-time, and that the father and paternal grandmother met all of the children's basic needs. The evidence further showed that the paternal grandmother helped enroll James in pre-kindergarten, helped get both children to medical appointments, and participated in the children's care. The court found that the children had been placed in the home of their father and paternal grandmother for more than one year and were doing extremely well in the placement. This evidence indicates that the paternal grandmother had the resources to provide for the children.
However, our review of the record reveals no evidence that the trial court verified the paternal grandmother's understanding of the legal significance of receiving joint legal custody of the children. The paternal grandmother did not testify at the hearings and it is unclear whether she attended either of them. No reports in the record from DSS, the Guardian ad litem, or any other source mention whether the paternal grandmother was aware of the legal significance of gaining custody of the children, or even had “a clear understanding of the enormity of the responsibility of caring for” the children, as did the nonparent relatives in In re J.E., 182 N.C.App. at 616–17, 643 S.E.2d at 73. We note that, although the paternal grandmother had been helping to care for the children for some time, their legal custody had been with DSS since their removal from the home of their mother. In addition, the trial court found as fact that both the father and paternal grandmother faced criminal charges at the time of the hearing. The father testified that he had two felony charges pending against him at that time. In light of these circumstances, we think it particularly important that the trial court “verify that [the paternal grandmother] understands the legal significance of the placement.” Accordingly, we remand this case to the trial court for it to verify that the paternal grandmother understands the legal significance of receiving legal custody of the juveniles. In light of our decision, we do not reach Respondent-mother's remaining arguments.
Because portions of the recording of the hearing were unintelligible, the transcript does not clearly identify the charges facing the paternal grandmother, although Respondent-father did refer to “a gun in the house” and stated, “they told my mama they couldn't have [the gun] because the house is in her name.”
VACATED and REMANDED. Judges McGEE and HUNTER, ROBERT N., JR., concur.
Report per Rule 30(e).