CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

The common thread running throughout the Juvenile Code (G.S. 7A-516, et seq. [see now G.S. 7B-100 et seq.]) is that the court must consider the child's best interests in making all placements whether at the dispositional hearing or the review hearing. In re Shue, 63 N.C. App. 76, 303 S.E.2d 636 (1983), modified, 311 N.C. 586, 319 S.E.2d 567 (1984).

Purpose of Juvenile Code. - None of the purposes of the Juvenile Code were met by subjecting a child's family to Department of Social Services supervision because of an adult relative's abuse of the child in his home during a sleepover because an adjudication of abuse and neglect neither promoted the child's best interest nor protected her mother's fundamental right to parent her child; the child's mother and stepfather took appropriate steps to ensure the child's safety. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).

Legislative Intent. - When, in a dependency proceeding, a trial court's order transferring a child's custody from a department of social services to foster parents was entered eight months late, this resulted in protracted custody proceedings that left the legal relationship between parent and child unresolved and left the child in legal limbo, thwarting the legislature's wish that children be placed in safe, permanent homes within a reasonable amount of time, as stated in G.S. 7B-100(5). In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

In dependency proceedings, to hold that the failure of a department of social services to list the address of an allegedly dependent child in a petition under G.S. 7B-402, or that the department's failure to file an affidavit required by G.S. 50A-209(a) could prevent a trial court from acquiring subject matter jurisdiction over the juvenile action, would be to elevate form over substance; such a holding would additionally impose jurisdictional limitations that the general assembly clearly never intended in G.S. 7B-100(3) when it sought to balance the interests of children with the rights of parents in juvenile actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Contrary to the mother's assertion, leaving her sons in their current foster placements with periodic visitation by her was not working as a plan; this arrangement was not only contrary to the permanent plan established by the trial court, it also served to deny the children the prospect of a safe, permanent home within a reasonable amount of time as contemplated by the Juvenile Code. Termination of the mother's parental rights was affirmed. In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020).

Best Interest of the Child is Paramount. - The common thread running throughout the Juvenile Code, G.S. 7B-100 et seq., is that the court's primary concern must be the child's best interest; a child's interest in being protected from abuse and neglect is paramount to his parents' constitutional interest in the custody of their child. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).

Holding that G.S. 7B-1003 did not deprive a trial court of jurisdiction to grant a motion for termination of parental rights that was filed during the pendency of an appeal from the trial court's dispositional order was consistent with the purposes of the Juvenile Code because the holding minimized procedural delay unnecessary to protect parental rights that interfered with addressing a child's needs. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469 (2012).

Trial court's conclusion that termination of a mother's parental rights was in the child's best interests did not constitute an abuse of discretion because it properly considered the statutory factors; the trial court found that the conduct of the mother and father demonstrated that they would not promote the child's health, physical, and mental well-being and that the child was no closer to returning home than she was on the day she entered into the care of the department of social services. In re N.G., 374 N.C. 891, 845 S.E.2d 16 (2020).

Court properly terminated a father's parental rights because the father's choices and actions resulted in a lengthy delay in his projected release date from incarceration and significantly limited his access to classes, programs, services, and employment which directly related to his case plan; there was no error in the trial court's findings of fact regarding the father's failures in accomplishing his case plan, most of which resulted from circumstances for which he was responsible. In re G.B., - N.C. - , - S.E.2d - (Apr. 16, 2021).

Court properly terminated a father's parental rights because the father's choices and actions resulted in a lengthy delay in his projected release date from incarceration and significantly limited his access to classes, programs, services, and employment which directly related to his case plan; there was no error in the trial court's findings of fact regarding the father's failures in accomplishing his case plan, most of which resulted from circumstances for which he was responsible. In re G.B., - N.C. - , - S.E.2d - (Apr. 16, 2021).

While one of the essential aims of the Juvenile Code is to reunite a parent with a child after the child is taken from the parent's custody, reunification may not always be a viable option. A trial court did not fail to consider the purpose and legislative intent of G.S. 7B-100(4) when it terminated a mother's parental rights after finding clear, cogent, and convincing evidence that supported neglect as a ground for termination. In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003).

Goal of G.S. 7B-100(5) is to place children in safe, permanent houses within a reasonable time, and allowing parents to delay termination proceedings by appealing custody review orders would have thwarted G.S. 7B-100(5); G.S. 7B-1003 did not deprive the trial court of jurisdiction to terminate the mother's parental rights during the pendency of the custody review order appeal as G.S. 7B-1003 applied only to dependency proceedings, not to termination proceedings. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

The purpose of former G.S. 7A-277 was to give to delinquent children the control and environment which might lead to their reformation and enable them to become law abiding and useful citizens, a support and not a hindrance to the State. In re Whichard, 8 N.C. App. 154, 174 S.E.2d 281 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258, 29 L. Ed. 2d 719 (1971).

Juvenile Hearing. - Former Subchapter XI of Chapter 7A, which contained the former North Carolina Juvenile Code, did not classify a juvenile hearing as civil or criminal. State v. Smith, 328 N.C. 161, 400 S.E.2d 405, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991).

Constitutional Rights at Juvenile Hearing. - There are certain constitutional rights which a juvenile has at a juvenile hearing which are not required in civil trials, such as the right to counsel if there is a possibility of commitment and the privilege against self incrimination. This would suggest a juvenile hearing is not a civil case. State v. Smith, 328 N.C. 161, 400 S.E.2d 405, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991).

Trial court did not abuse its discretion in quashing s mother's subpoena for her child's testimony because its decision to quash the subpoena was based on a reasonable weighing of the relevance of the child's testimony and the detrimental effect that testifying would have on the child; the trial court's evidentiary rulings assured fairness and equality and provided the mother with a meaningful opportunity to participate in the termination proceeding. In re A.H., 250 N.C. App. 546, 794 S.E.2d 866 (2016), review denied, 2017 N.C. LEXIS 294 (2017).

The court must consider the welfare of the delinquent child as well as the best interest of the State. In re Hardy, 39 N.C. App. 610, 251 S.E.2d 643 (1979).

State's Interest in Juvenile Proceeding. - The fact that the proceeding is not an ordinary criminal prosecution, but is a juvenile proceeding, does not lessen, but should actually increase, the burden upon the State to see that the child's rights are protected. In re Meyers, 25 N.C. App. 555, 214 S.E.2d 268 (1975).

Limits to Agency Interference With Parent-Child Relationship. - Department of Social Services has an important role in protecting children; however, because parents have a fundamental right to parent their children, the courts must acknowledge the limits within which governmental agencies may interfere with or intervene in the parent-child relationship. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).

The county was not entitled to appeal an order to pay for the mental health evaluation of a juvenile although it had to be given notice and the opportunity to be heard at the juvenile hearing. In re Voight, 138 N.C. App. 542, 530 S.E.2d 76 (2000).

The district court's authority in juvenile dispositions is limited to utilization of currently existing programs or those for which the funding and machinery for implementation is in place. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).

The former North Carolina Juvenile Code (former G.S. 7A-516 et seq.) did not grant the district courts the authority to order the State, through the Division of Youth Services, to develop and implement specific treatment programs and facilities for juveniles. In re Swindell, 326 N.C. 473, 390 S.E.2d 134 (1990).

Court Order May Not Exceed Court's Authority. - When a student has been lawfully suspended or expelled pursuant to G.S. 115C-391 and the school has not provided a suitable alternative educational forum, court-ordered public school attendance is not a dispositional alternative available to the juvenile court judge, absent a voluntary reconsideration of or restructuring of the suspension by the school board to allow the student's restoration to an educational program within its system. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).

Delinquency Proceedings May Result in Commitment. - Juvenile proceedings to determine delinquency, though not the same as criminal prosecutions of an adult, may nevertheless result in commitment to an institution in which the juvenile's freedom is curtailed. In re Meyers, 25 N.C. App. 555, 214 S.E.2d 268 (1975).

Dismissal of Petitions Against Juveniles Treated Unequally. - The trial court erred in not dismissing petitions against six juveniles who received unequal treatment relative to other juveniles who were alleged to have committed the same or similar offenses by design, in that each respondent was prosecuted because he or she, or his or her parents, was unwilling or unable to pay $1,000 compensation to the victim, while the other juveniles, who were similarly situated, were not prosecuted because they, or their parents, were able or willing to pay $1,000 thereto. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Interlocutory Order Not Appealable. - Because an order was best characterized as a temporary child custody order under G.S. ch. 50 rather than as a disposition order under G.S. ch. 7B, and was set for review in approximately four months, it was an interlocutory order that did not affect any substantial right and was not appealable. In re N.T.S., 209 N.C. App. 731, 707 S.E.2d 651 (2011), review denied 365 N.C. 203, 710 S.E.2d 7, 2011 N.C. LEXIS 462 (N.C. 2011).

Lack of Jurisdiction Found. - Because a district court never exercised jurisdiction over defendant for the charge of conspiracy to commit armed robbery, the superior court that convicted him never obtained jurisdiction via transfer of the charge; because the trial court lacked jurisdiction over defendant for the conspiracy charge, his conviction was vacated. State v. Jackson, 165 N.C. App. 763, 600 S.E.2d 16 (2004).

Applied in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re A.M., 192 N.C. App. 538, 665 S.E.2d 534 (2008); In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).

Cited in In re Wright, 137 N.C. App. 104, 527 S.E.2d 70 (2000); Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000); In re Allison, 143 N.C. App. 586, 547 S.E.2d 169 (2001); In re Eckard, 144 N.C. App. 187, 547 S.E.2d 835 (2001); In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395 (2003); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003); In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re N.B., 183 N.C. App. 114, 644 S.E.2d 22 (2007); In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007); In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008); In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); In re B.S.O., 225 N.C. App. 541, 740 S.E.2d 483 (2013); In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013); In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014); In re R.R.N., 233 N.C. App. 647, 757 S.E.2d 503 (2014), review denied 367 N.C. 524, 762 S.E.2d 213, 2014 N.C. LEXIS 622 (2014); In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015); State v. Watkins, 247 N.C. App. 391, 785 S.E.2d 175 (2016), review denied, 792 S.E.2d 508, 2016 N.C. LEXIS 672 (2016).

Opinions of Attorney General

Abuse Occurring in County Operated Secure Detention Facility. - The Department of Social Services has the authority to investigate an abuse complaint (involving a juvenile) which allegedly occurred in a county operated secure detention facility which is licensed by the North Carolina Office of Juvenile Justice. See Opinion of Attorney General to Mr. Lowell L. Siler, Esq., Deputy County Attorney, County of Durham, 2000 N.C. AG LEXIS 17 (9/11/2000).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Abuse by Teacher. - Abuse by a teacher does not fall under the mandatory reporting duty. Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603 (W.D.N.C. 2008).

Constitutionality. - Former G.S. 7A-278 did not violate the equal protection clause of the United States Constitution by classifying and treating children differently from adults. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).

Allowing a child to be adjudged undisciplined and placed on probation without benefit of counsel, while at the same time requiring counsel before a child may be adjudged delinquent, did not deny equal protection of the laws to the undisciplined child. In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972).

Former G.S. 7A-289.32(2) and former G.S. 7A-517(21) (see now G.S. 7B-101(15)) did not violate constitutional standards of equal protection or definiteness. Department of Social Servs. v. Johnson, 70 N.C. App. 383, 320 S.E.2d 301 (1984).

"Caretaker" Limited. - In concluding that a stepfather's cousin was a child's caretaker, the trial court stretched G.S. 7B-101(3) beyond its intended scope, as the stepfather's cousin was simply a relative who sexually assaulted the child while the child was under the cousin's temporary supervision. The trial court erred in applying the Juvenile Code on these facts and in adjudicating the child abused and neglected. In re R.R.N., 233 N.C. App. 647, 757 S.E.2d 503 (2014), review denied 367 N.C. 524, 762 S.E.2d 213, 2014 N.C. LEXIS 622 (2014).

Court of appeals properly determined that the trial court erred in adjudicating a child abused and neglected because an adult relative was not the child's "caretaker" when he sexually abused her at his home during a sleepover because he was not entrusted with her care; the child's mother and stepfather responded appropriately, and thus, the abuse of the child by the adult relative did not warrant the State's intrusion into the family unit. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).

Stepfather had no standing to appeal an adjudication and disposition order because (1) the stepfather was not the child's "custodian," as the stepfather was not awarded the child's custody, so the stepfather was the child's "caretaker," which included a stepparent, and (2) G.S. 7B-1002(4), letting a "parent" appeal an order of adjudication and disposition, did not let a stepparent appeal without showing the stepparent became the child's parent through adoption or was otherwise qualified. In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).

"Community-Based Program". - Although the term "community-based program" is a term of art, its usage by the General Assembly reflects its concern that responses to the problems of the juveniles coming before the courts be fashioned in a flexible manner so as to address the best interests of the child in ways other than probation and commitment to training schools (now youth development centers). In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).

The term community ought to be interpreted in a broad manner, connoting an interrelationship among persons who live in the same general area, but who also share the same laws, rights, and interests. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).

"Custodian". - Definition of "custodian" in 7A-517(11) was, see now 7B-101(8), was much narrower than the previous definition. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 699, 349 S.E.2d 589 (1986).

"Dependent". - Trial court erred in adjudicating a mother's three-month-old son as dependent, pursuant to G.S. 7B-101(9), as the trial court's finding of fact that the mother was not willing to investigate the needs of her son in a safe environment, after the infant suffered a severe head trauma while in the father's sole care, was not supported by clear and convincing evidence; as the mother did not neglect her son, nor was he deemed abused, he was not dependent because he had a parent capable of providing care and supervision. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).

Children were dependent where the parents were neither able to care for them nor did they suggest appropriate alternate replacements; the father's proposed replacement was insufficient because there was no evidence that his aunt was willing or able to care for the children. In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005).

Trial court's findings supported its conclusion that the children were dependent under G.S. 7B-101(9) because it found that the mother could not care for her children without constant assistance, and that such assistance was not available to her. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).

Clear, cogent, and convincing evidence in the record supported the findings that the minor child was dependent as defined by G.S. 7B-101, the mother failed to show the ability to properly parent the minor child and attend to his special needs, and the mother had not seen the minor child since January 2007 and had not given gifts or support or shown any love or affection for the child since she last saw him. The findings in turn supported the trial court's conclusions that the minor child was dependent and abandoned, both of which are statutory grounds for termination. In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009).

Mother's children were properly adjudicated dependent because (1) the children's legal custodian died, and (2) the evidence supported a finding that no other appropriate relatives were available to provide care for the children. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Evidence supported termination of the father's parental rights; the child had been placed in the custody of Youth and Family Services (YFS) as a result of being adjudicated dependent, and the conditions which led to the child being placed in YFS custody were not necessarily tied to the fault of either parent, and instead, those conditions were based entirely on circumstances surrounding the child at the time he was adjudicated dependent, and the father made almost no effort to either establish himself as a parent who could provide for the child, nor did he arrange alternative child care arrangements. In re A.W, 237 N.C. App. 209, 765 S.E.2d 111 (2014).

Trial court erred by concluding that a child was dependent because its order did not include findings that addressed either prong of dependency; there were no findings that the parents' behaviors rendered them wholly unable to parent the child; there were no findings that the parents lacked an alternative child care arrangement. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Trial court erred in adjudicating a child as a dependent juvenile because he had an appropriate alternative child care arrangement with his half-brother, who was a responsible adult. In re C.P., 258 N.C. App. 241, 812 S.E.2d 188 (2018).

"Juvenile" - The rights afforded under former G.S. 7A-595 to be informed of Miranda rights, as well as to have a parent, guardian, or custodian present during questioning apply only to persons defined to be a juvenile under G.S. 7A-517 (see now this section). State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998).

"Dependent Juvenile" - Trial court's finding of fact that the child's mother had not appropriately cared for him was not supported by clear and convincing evidence; similarly, the finding of fact that the mother was not willing to investigate the needs of the child in a safe environment was not supported by clear and convincing evidence. Further, the child was not neglected as to his mother; therefore, pursuant to G.S. 7B-101(9), the child was not dependent as to his mother because she was capable of providing care for and supervision of the child. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).

Trial court properly concluded that the children were dependent juveniles where the mother suffered from significant psychological conditions, the existence of which she did not dispute on appeal, and these conditions impaired her ability to parent the children; one doctor noted that the mother had suicidal ideation and tendencies, that she was in a chronic state of stimulus overload, that she suffers from Chronic Post Traumatic Stress Disorder, Major Personality Disorder, Major Depressive Disorder, and Dependent Personality Disorder and that these serious psychological problems impaired the mother's ability to parent. In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).

Trial court did not err by adjudicating the mother's two children as dependent juveniles because the grandmother, as their legal custodian, was deceased, the mother did not present herself as a potential caregiver, and there were no appropriate family members immediately available to care for them long term. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Trial court's findings that the child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons demonstrated that he was abused. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).

Child's dependency adjudication was erroneous because (1) the parties agreed such a decision would be based on the court's conversations with the child in chambers, and (2) nothing showed the child provided the court with any information about the child's father's ability to care for the child or was competent to do so. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).

Child was not a dependent juvenile as required to terminate parental rights because she was not "in need of assistance or placement" at the time that the mother's petition to terminate a father's parental rights was filed since was in the legal and physical custody of her mother. In re K.R.C., 374 N.C. 849, 845 S.E.2d 56 (2020).

"Neglect." - Because the trial court was acting under a misapprehension of the law, as it used the definition of "serious neglect" pertaining to the responsible individuals' list, as opposed to the definition of "neglect" pertaining to an adjudication of a juvenile as neglected, the trial court's adjudication of "serious neglect" was reversed, and the case was remanded for the trial court's consideration of neglect within the proper statutory framework. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).

Findings were insufficient to support a determination that the father had neglected his child because the father's incarceration alone could not serve as clear, cogent, and convincing evidence of neglect, the order did not establish that the father failed to comply with the domestic violence-related portions of his case plan or engaged in continued acts of domestic violence, trial court's finding that the father had submitted three diluted drug screens was insufficient to support a determination as to the likelihood of future neglect, and the trial court's finding that the father had not provided financially for the child, along with its determination that the father received SSI benefits and was not required to pay child support, did not support its finding of neglect. In re K.N., 373 N.C. 274, 837 S.E.2d 861 (2020).

Evidence supported the finding of neglect as to the mother's daughter; the mother did not act immediately to stop the daughter's sexual abuse by the mother's boyfriend, and the mother tried to discredit her daughter in therapy sessions and prioritized her relationship with her boyfriend before her daughter's welfare. The mother did not demonstrate a willingness or ability to ensure her daughter was protected. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).

Evidence did not support the finding of neglect as to the mother's son; the trial court relied on instances of the daughter's past sexual abuse to adjudicate the son neglected, but no findings were made of any risk of physical, mental or emotional impairment to the son or the presence of other factors supporting a conclusion that he was neglected. The only specific finding regarding the son was that he was happy and healthy. In re S.M.L., - N.C. App. - , - S.E.2d - (July 21, 2020).

Father could not contend that certain issues did not lead to the juvenile's adjudication as neglected because he stipulated to the findings of fact and consented to the child's adjudication as a neglected juvenile; therefore, one finding of fact, which was stipulated to by the father in the adjudication order, supported another finding of fact in the order terminating the father's parental rights in the child. In re O.W.D.A., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Termination of the mother's rights on the grounds of neglect was supported by substantial evidence; the trial court determined that mother's last-minute progress was insufficient to outweigh her long-standing history of alcohol and substance abuse and domestic violence, as well as the impact these behaviors had on the children, and it was not error for the trial court to find that there likely would be a repetition of neglect in the future should they be returned to mother's care. In re H.A.J., - N.C. - , - S.E.2d - (Mar. 19, 2021).

Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under the former Juvenile Code (formerly G.S. 7A-516 et seq.) are not special proceedings. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudicating a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).

In dependency proceedings brought under G.S. 7B-101, the failure of a petition to list an allegedly dependent juvenile's address pursuant to G.S. 7B-402 did not deprive the trial court of jurisdiction because this was "routine clerical information," and the trial court could easily determine from information provided in the petition whether the court had subject matter jurisdiction over the case. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Trial court had subject matter jurisdiction over the juvenile petition filed by the caseworker even though the caseworker did not sign it and, thus, the trial court could enter its termination of parental rights order regarding the father; while the caseworker did not specifically state in the petition that the caseworker was an authorized representative of the director of the Department of Social Services, the caseworker's verification of the petition was sufficient for the trial court to exercise jurisdiction over the case. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

In a case in which the court appointed custodians of a minor child filed a petition to terminate the parental rights of the child's mother, the trial court lacked jurisdiction because the custodians lacked standing. The custodians did not fit within any of the requirements under G.S. 7B-1103(a), and contrary to their argument, their status as custodians of the minor child did not give them the same rights as a guardian; G.S. 7B-1103 referred to both custody and guardianship, and it could not be held that the words custody and judicially appointed guardian as used in G.S. 7B-1103 were not intended to have specific, distinct meanings. In re B.O., 199 N.C. App. 600, 681 S.E.2d 854 (2009).

Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Federal & State Interrelationships. - G.S. 7B-200(a) states that the court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent; the statute defines "court" as the district court division of the General Court of Justice - that is, state district court, not federal district court. G.S. 7B-101(6). Wood v. Mecklenburg County Dep't of Soc. Servs., - F. Supp. 2d - (W.D.N.C. Aug. 18, 2008).

Limits to Agency Interference With Parent-Child Relationship. - Before subjecting families to ongoing Department of Social Services supervision and an array of possible adverse collateral consequences that can flow from an adjudication of abuse or neglect trial courts should consider the purposes of the Juvenile Code when determining whether intervention is necessary to protect the welfare of the child. In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).

Applicability To Termination Proceedings. - Although G.S. 7B-101(9), G.S. 7B-1111(a)(6) concerned dependency, those provisions are applicable to termination of parental rights proceedings where neglect is pursued. In re L.W., 175 N.C. App. 387, 623 S.E.2d 626 (2006), review denied, appeal dismissed, 360 N.C. 534, 633 S.E.2d 818 (2006).

Amendment to a juvenile petition alleging abuse, neglect, and dependency to add allegations of sexual abuse did not change the nature of the conditions upon which the petition was based in violation of G.S. 7B-800, because the amendment did not change the nature of the condition DSS had already alleged, abuse under G.S. 7B-101(1). In re M.G., 363 N.C. 570, 681 S.E.2d 290 (Aug. 28, 2009).

Findings of Fact Required. - Trial court erred in concluding that a child was dependent because the trial court made no findings of fact concerning the mother's ability to provide care or supervision for the child or that the mother lacked an alternative child care arrangement to support the court's conclusion that the child was dependent. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Trial court erred in terminating parental rights on the ground of neglect because the termination order contained no finding of a probability of a repetition of the neglect, which led to the child's removal from the parents' care; the record contained evidence that could support, although not compel, a finding of neglect, but without further fact-finding, the court of appeals could not determine whether the trial court's conclusions were supported by its findings. In re L.L.O., 252 N.C. App. 447, 799 S.E.2d 59 (2017).

Trial court erred by, in effect, removing custodial grandparents from a juvenile proceeding because (1) the grandparents were mandatory parties to the proceeding, and the court did not enter the findings statutorily required when discharging a party from a proceeding. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).

Findings of Fact Conclusive on Appeal. - Mother's testimony during the adjudication hearing fully supported the trial court's challenged findings of fact, and therefore those findings were conclusive on appeal In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).

Findings and Verbatim Allegations. - Findings in this neglect case contained some verbatim allegations, plus 15 additional findings that were not verbatim allegations and were properly considered; the trial court was cautioned that its order had to reflect an adjudication, not mere one-sided recitations of allegations presented at the hearing. In re M.K., 241 N.C. App. 467, 773 S.E.2d 535 (2015).

Subsequent Custody Denied. - Plaintiff did not have standing to seek custody of his biological children as an "other" person under G.S. 50-13.1(a) where his parental rights were previously terminated for neglect. Krauss v. Wayne County Dep't of Social Servs., 347 N.C. 371, 493 S.E.2d 428 (1997).

Definition of "Neglected Juvenile" Not Unconstitutional. - The statutory definition of a "neglected juvenile" in former G.S. 7A-517 was not unconstitutional by reason of vagueness, nor does it violate constitutional safeguards as to equal protection. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Former G.S. 7A-517(21) (see now G.S. 7B-101(15)) of this section is not unconstitutionally vague. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), appeal dismissed, 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983).

The determination of neglect requires the application of the legal principles set forth in former G.S. 7A-517(21) (see now G.S. 7B-101(15)) and is therefore a conclusion of law; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Classification of Neglected Children Is Reasonable. - The classification of neglected children by former G.S. 7A-517 is founded upon reasonable distinctions, affects all persons similarly situated without discrimination, and has a reasonable relation to the public peace, welfare and safety. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

"Abandonment" Defined. - Abandonment imports any willful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Abandonment has also been defined as willful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child. In re APA, 59 N.C. App. 332, 296 S.E.2d 811 (1982).

Neglect Based on Abandonment. - Mother neglected child by way of abandonment where the mother had wilfully refused to perform her obligations as a parent, had withheld her presence, love, care, and opportunity to display filial affection from the child, and failed to financially contribute to the support of the child for a significant period of time. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003).

Definitions Not Mutually Exclusive. - A child may be both "dependent" and "neglected" within the definitions of former G.S. 7A-517(13) and (21) (see now G.S. 7B-101(9) and (15)). Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Abused Juvenile. - In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, because the binding findings of fact established that the son sustained multiple non-accidental injuries and the father was responsible for the injuries, the trial court did not err in concluding that the son was an abused juvenile. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).

Trial court did not in finding that a child was an abused juvenile where she had undergone five invasive examinations before she was four years old based on the mother's and grandmother's claims of sexual abuse, and although two child welfare agencies found no signs of physical or sexual abuse, they reported that the child displayed signs of emotional abuse. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).

Lack of Parental Concern. - An individual's lack of parental concern for his child is simply an alternate way of stating that the individual has failed to exercise proper care, supervision, and discipline as to that child. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Any child whose physical, mental or emotional condition has been impaired or is in danger of becoming impaired as a result of the failure of his or her parent to exercise that degree of care consistent with the normative standards imposed upon parents by society may be considered neglected. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).

A child who is found to have been disciplined so severely that bruises and internal abrasions result is a "neglected" juvenile. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).

To deprive a child of the opportunity for normal growth and development is perhaps the greatest neglect a parent can impose upon a child. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Refusal to Educate as Neglect. - It is fundamental that a child who receives proper care and supervision in modern times is provided a basic education. A child does not receive "proper care" and lives in an "environment injurious to his welfare" when he is deliberately refused this education, and he is "neglected". In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693 (1976); In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).

Failure to Provide Medical Care or Remedial Care Constitutes Neglect. - This section provides that if a child is not provided necessary medical care, it is neglected. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

Child with a severe speech defect which could be treated by medical or other remedial care, as well as a hearing defect, which problems could be overcome with proper treatment and therapy which were available to child without expense to her mother, was "neglected" where her mother refused to permit her to receive this opportunity to progress toward her full development. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, appeal dismissed and cert. denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

A finding of neglect by clear and convincing evidence was proper where the children were kept at home, and they did not receive proper medical care, supervision, or adequate nutrition. In re Bell, 107 N.C. App. 566, 421 S.E.2d 590, appeal withdrawn, 333 N.C. 168, 426 S.E.2d 699 (1992).

Clear, cogent, and convincing evidence supported a conclusion that a child did not receive proper care and supervision, and that the neglect was likely to result in physical, mental, or emotional impairment, or a substantial risk of such impairment under G.S. 7B-101(15) as: (1) a mother had over two years to work on a case plan with a department of social services and had ample time to follow through with the services designed to assist her in learning to parent; (2) the mother had attended only one mental health appointment and had not participated in vocational rehabilitation; (3) a father missed a psychological evaluation despite a social worker's efforts to provide transportation; (4) the service providers were unable to make contact with the parents; and (5) the parents delayed seeking medical attention for the child after a social worker telephoned the father and told him about the need to take the child to a pediatrician. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Even accepting the parents' argument that they did not inflict a child's broken ribs, because they either failed to notice their baby's extensive injuries and pain, or noticed but ignored them, their failure to obtain medical attention constituted neglect per G.S. 7B-101(15). In re S.W., 187 N.C. App. 505, 653 S.E.2d 425 (2007).

It was not in the children's best interests to return home where the children were neglected as the mother tried to hit the father with a board, missed, and struck the two-month old child in the head, and the parents failed to seek medical treatment for that injury or for the child's other medical conditions; In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (2013).

Trial court did not err in adjudicating the second child dependent and neglected as the mother was unable to provide for the second child's care or supervision and lacked an appropriate alternative child care arrangement, and her actions placed the child at a substantial risk of some physical, mental, or emotional impairment because, while the second child was in the mother's custody, she continuously failed to obtain meaningful mental health services for the child that could have prevented or mitigated the child's need for repeated hospitalizations at a psychiatric hospital; she greatly minimized and denied the seriousness of the child's condition; and the mother even exacerbated the child's condition. In re C.B., 245 N.C. App. 197, 783 S.E.2d 206 (2016).

Failure to Provide Clean Home and Child Care. - Failure of parents, during the three months additional time allowed to them to make improvements, to provide a clean and suitable home for their children and to provide for appropriate child care when they were absent, was strong supporting evidence for the conclusion that the children were genuinely neglected within the terms of subdivision (21) of this section. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985).

The inability to maintain secure living arrangements is relevant to a determination of whether there is a substantial risk of injury to the juvenile. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Trial court did not err by concluding that grounds existed to terminate a father's parental rights because the evidence and findings of fact supported its determination that the father lacked the willingness or ability to establish a safe home for his child; the father's parental rights to another child had been involuntarily terminated, and his mental health concerns did not allow him to provide a safe home. In re N.G., 374 N.C. 891, 845 S.E.2d 16 (2020).

Neglect may be manifested in ways less tangible than failure to provide physical necessities. Therefore, on the question of neglect, the trial judge may consider, in addition, a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship. In re APA, 59 N.C. App. 322, 296 S.E.2d 811 (1982).

Findings Regarding Neglect. - Because the trial court's findings of fact support its legal conclusions that the juveniles were neglected, the lack of findings in the adjudication order regarding the mother's fault or culpability in contributing to the adjudication of neglect was immaterial. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Termination of the mother's parental rights based on neglect was proper; issues of inappropriate discipline and domestic violence remained, the mother had not secured her own housing, and the findings supported the conclusion that there was a high probability of the repetition of neglect if the children were returned to the mother's care. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).

Even assuming findings in the trial court's prior orders sufficed to support the corresponding adjudicatory findings, the findings did not support the conclusion that the children were neglected juveniles; the fact that the mother verbally attacked the school bus driver and blocked children from boarding did not support a neglect determination, nor did the children's absences from school, which did not show the children were being denied an education. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Unchallenged findings were sufficient to support a conclusion that the child was neglected where they established that the mother's improper care of the child and repeated allegations of sexual abuse exposed the child to harmful medical procedures, creating an environment injurious to her welfare. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).

Grounds existed to terminate the father's parental rights based on neglect where although the father had made some progress toward completing his court-ordered case plan, his success was extremely limited and insufficient in light of the child's placement in state custody for over two years. In re J.C.L., 374 N.C. 772, 845 S.E.2d 44 (2020).

In a case in which the mother's sister transferred alcohol into water bottles, her brother grabbed some water bottles that he believed were unopened from the kitchen, the mother fed the child formula that she prepared using one of the water bottles, and the child suffered acute alcohol intoxication, the findings of fact in the trial court's order did not support its conclusion of law that the child was a neglected juvenile because the findings, such as they were, supported a determination that a tragic and unfortunate accident occurred - an accident which might have been preventable with the benefit of hindsight, but which the mother had no way of knowing would occur, nor had any means to prevent it, absent some form of precognition. In re V.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Findings that the child's home is clean and that she is well fed and clothed are not dispositive on the issue of neglect. In re Thompson, 64 N.C. App. 95, 306 S.E.2d 792 (1983).

Findings Supported Adjudication of Abuse and Emotional Impairment. - Findings of fact supported the conclusion that, as a result of the conflict between her parents, the child suffered serious emotional damage, evidenced by her anxiety and health issues, which was injurious to her welfare; findings regarding the child's emotional abuse being exacerbated by the father's anger, repeated attempts to demean and blame the mother, and pressure on the child during the custody dispute, supported an adjudication of abuse and emotional impairment necessary for an adjudication of neglect. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).

Determination of Child's Residence. - Child was living in the home of respondent mother even though the child resided in the hospital until the Department of Social Services intervened. In re A.B., 179 N.C. App. 605, 635 S.E.2d 11 (2006).

Evidence of abuse of another child in the home is relevant in determining whether a child is a neglected juvenile; however, the removal of all other children from the home once a child has either died or been subjected to sexual or severe physical abuse is not required. In re Nicholson, 114 N.C. App. 91, 440 S.E.2d 852 (1994).

Trial court properly adjudicated a mother's son a neglected child because the trial court was permitted, although not required, to conclude that the son was neglected based on evidence that the mother had abused her daughter by intentionally burning her six months earlier; the mother was arrested and charged with felony child abuse days before the son's birth and less than three months before the adjudication order. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Trial court did not err in adjudicating the first child neglected because the mother allowed the child to be continually exposed to the second child's erratic, troubling, and violent behavior; she failed to obtain meaningful medical services for the second child while she was in her custody that could have mitigated that behavior; and she showed no concern for the effect the second child's behavior might have on the first child. In re C.B., 245 N.C. App. 197, 783 S.E.2d 206 (2016).

One communication in a two-year period does not evidence the personal contact, love, and affection that inheres in the parental relationship. In re Graham, 63 N.C. App. 146, 303 S.E.2d 624, cert. denied, 309 N.C. 320, 307 S.E.2d 170 (1983).

A parent's insistence on attempting to teach a mentally retarded child himself constitutes neglect, if it denies that child the right to attend special education classes critical to the child's development and welfare. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).

Trial court did not err in finding that 15 year old with an IQ of 41, who had been taken out of public school and was being taught at home by his father, was neglected, in granting legal custody to the Department of Social Services, and in ordering the child to be returned to public school. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).

Jury Instructions. - In a case in which defendant was convicted of misdemeanor child abuse for inflicting physical injuries on his son with a paddle, the trial court committed reversible error when it struck a proposed instruction defining "moderate punishment" as punishment which caused lasting injury to the child. The instruction allowed the jury to convict if it determined that the punishment administered by defendant was not "moderate," without giving further guidance as to what constitutes "moderate" punishment, except that the jury was to use their own reason and common sense. State v. Varner, 252 N.C. App. 226, 796 S.E.2d 834 (2017).

Evidence Considered. - Trial court could be presumed to have disregarded the incompetent evidence because the trial court made no findings pertaining to hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation, and the trial court was authorized to consider the hearsay evidence and other evidence to show propensity in its dispositional order. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Evidence of Neglect Sufficient to Withstand Motion to Dismiss. - The petitioner offered substantial evidence sufficient to withstand a motion to dismiss where the evidence presented, taken in the light most favorable to petitioner, amounted to the following: (1) that respondent's eight year-old daughter had been left alone for approximately three and a half hours by respondent as a form of discipline; (2) that she was found to have a cut on her lip and bruising on her face; (3) that respondent's boyfriend had spanked her at church when she misbehaved, and had grabbed her face and hit her face when they arrived home; (4) that respondent's boyfriend had punched holes in the walls, and that he had once cracked the car windshield with his fist while the children were in the vehicle; (5) that respondent was completely uncooperative with petitioner; (6) that respondent's son had a wound on his upper lip which respondent insisted was a cold sore but was later determined to be an infected cut; and (7) that respondent had a blackened eye. In re Gleisner, 141 N.C. App. 475, 539 S.E.2d 362 (2000).

Although G.S. 7B-101(15) was silent on whether a juvenile to be adjudicated as neglected had to sustain some injury as a result of neglect, there had to be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline; and where there was no finding that the juvenile had been impaired or was at substantial risk of impairment, there was no error if all the evidence supported such a finding. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Evidence of Abuse and Neglect Sufficient to Withstand Motion to Dismiss - Trial court did not err in denying the mother and father's motions to dismiss filed at the close of the county welfare agency's case and the close of all of the evidence, as the evidence that the older daughter was abused and the younger daughter was neglected was supported by evidence sufficient to withstand their motions to dismiss. In re Morales, 159 N.C. App. 429, 583 S.E.2d 692 (2003).

Evidence Held Sufficient to Show Neglect. - There was ample clear, cogent and convincing evidence that a juvenile's injuries were the result of nonaccidental means, that her injuries were "intentionally" inflicted upon her and that, therefore, she was neglected, despite mother's alleged love and devotion. In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213 (1985).

Facts that father had little if any contact with his daughter in the year before he murdered his daughter's mother; that since the murder, father had been incarcerated; that father had twice given his consent for the child's adoption by his sister and her husband; that father had known that the child was in petitioners' custody and had nevertheless made no effort to contact petitioners, to send support for daughter to petitioners, or to establish any verbal or written communication with the child, supported the trial court's conclusion that father "acted in such a way as to evince a lack of parental concern for the child" and were sufficient to constitute neglect pursuant to G.S. 7A-289.32(2) [see now G.S. 7B-1111(a)(1)] and 7A-517(21) [see now G.S. 7B-101(15)]. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Child held to be a neglected juvenile where the child was substantially at risk due to the instability of her living arrangements, the mother and child moved at least six times during the four months the mother retained custody, the child was substantially at risk through repeated exposure to violent individuals, one of whom used cocaine, and where the environment in which the mother and child lived was injurious in that it involved drugs, violence, and attempted sexual assault. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Where mother had a severe alcohol problem, had driven while under the influence with her minor children as passengers, became intoxicated at home to the point of falling down and becoming unable to care for her younger children, and her drinking contributed to her children's emotional problems evidence was sufficient to show neglect. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398 (1998).

Evidence supported a trial court's finding that father abused, neglected, or negligently provided care for his three-month old child where it showed that: (1) the father lived with the child; (2) the father knew his son had a medical condition; (3) the father took the child to the hospital; (4) the father left the hospital on a second occasion without the child being seen; (5) the father did not obtain subsequent medical treatment for his son; and (6) the child's injuries were serious and had been inflicted over a period of time. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).

Evidence was sufficient to support a finding that the parents of a three-month old child abused, neglected, or negligently cared for the child where it showed that: (1) the parents could not reconstruct who cared for the child for days, or even weeks; (2) the parents failed to furnish a detailed account or proper medical history to explain the child's injuries; (3) both parents knew that the child had a medical condition; (4) the second time the child was taken to the hospital the parents left the hospital without the child being seen because they were tired of waiting; (5) the child's injuries were serious; and (6) the child's injuries were inflicted over a period of time. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).

Trial court properly terminated the father's parental rights on the ground that the father neglected the children, because the father expressed some interest in visitation rights, but only if a paternity test showed that the father was one child's biological father. In re Mills, 152 N.C. App. 1, 567 S.E.2d 166 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 627 (2003).

Where (1) a mother did not keep medical appointments for a child, resulting in the child's uncontrollable behavior; (2) children were unattended; (3) the children's school could not contact the mother; (4) a child was sleep-deprived and hungry; and (5) while the mother was incarcerated, the children were padlocked in their rooms without bathroom access and the refrigerator was padlocked, the evidence was sufficient to support the trial court's adjudication of the children as neglected, under G.S. 7B-101(15). In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Trial court's determination that that mother neglected the child was supported by evidence that the mother failed to provide any parental guidance, personal contact, love or custodial/spiritual support for at least six months prior to the filing of the grandmother's petition. Lechuga v. Ore (In re Ore), 160 N.C. App. 586, 586 S.E.2d 486 (2003).

Evidence that a father, who had been incarcerated since his child's birth, had not provided any financial support for the child from his compensation for his prison employment, had not sought personal contact with the child or attempted to convey love or affection to the child, and did not inquire about the child in his infrequent correspondence with the child's mother, showed the father neglected the child, as defined in G.S. 7B-101(15), allowing termination of his parental rights, under G.S. 7B-1111(a)(1). In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).

Testimony of a pediatrician and a mental health professional was sufficient evidence of child abuse to support the trial court's finding that two minor children were abused and neglected children, and that the children's placement and care was the responsibility of the county department of social services. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).

Noting that the neglect statute, G.S. 7B-101(15), afforded a trial court some discretion in determining the weight to be given evidence of a past adjudication of neglect and the likelihood of its continuation in the future, an appeals court held that the trial court's findings of fact, which included a 16 year old mother's prior adjudication of neglect, marijuana use, and her demonstrated inability to care for an infant, supported the conclusion that the child was a neglected child. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).

Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).

Where the evidence showed that a child resided in the same home where four other children had been neglected, this fact was sufficient to support a finding that the child was being neglected under G.S. 7B-101(15); although the father was in jail, the mother was accused of the previous neglect. In re P.M., 169 N.C. App. 423, 610 S.E.2d 403 (2005).

Trial court did not abuse its discretion in terminating a mother's parental rights based on neglect where: (1) the mother failed to maintain stable housing and was unemployed, (2) the mother failed to comply with a child support order, (3) the mother had left the child with others, including an incident initiating the child's removal from her custody, (4) the mother failed to provide proper medication for the child, (5) the mother had attempted suicide, had not cooperated with social workers, did not follow through with mental health counseling, and did not complete parenting classes, and (6) the mother only sporadically visited and contacted the child for over five years. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300 (2005).

When it was alleged that a mother's parental rights to two children should be terminated because she (1) neglected them while they were in an agency's care within the meaning of G.S. 7B-101, under G.S. 7B-1111(a)(1), (2) willfully left the children in foster care for more than 12 months without showing reasonable progress to correct the conditions that led to their removal, under G.S. 7B-1111(a)(2), and (3) willfully failed to pay a reasonable portion of the cost of the children's care while in an agency's custody, under G.S. 7B-1111(a)(3), and the petition was sustained on all three grounds, when the mother objected to findings as to only one ground on appeal, the other findings were binding, under N.C. R. App. P. 10, and, as only one ground had to be found to terminate parental rights, it was unnecessary to consider the mother's appellate argument as to the ground she challenged. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45 (2005).

Social services department presented clear, cogent, and convincing evidence from which the trial court could find and conclude that child was at risk of some physical, mental, or emotional impairment where the mother kept the child at her cousin's home in a filthy room with clothes and dirty diapers strewn about, she would leave the home for several days at a time and, upon her return, she would sleep for long periods of time with the child in the bed and would not awaken when the child cried, the mother came home drunk or under the influence of drugs on one occasion and attempted to remove the child from the home in the middle of the night, and the mother was unable to complete a substance abuse treatment program because of frequent altercations with other residents. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

In a termination of parental rights hearing, clear, cogent and convincing evidence showed a mother's children were neglected, as defined in G.S. 7B-101(15), for purposes of termination, as the mother did not (1) complete classes in parenting, budgeting, and homemaking, (2) obtain mental health counseling, (3) have a phone, or (4) keep a clean home, all as required by her case plan, and she offered no specific plan for the children's care while she worked, if they were returned to her, and her residential instability was shown. In re J.W., 173 N.C. App. 450, 619 S.E.2d 534 (2005), aff'd, 360 N.C. 176, 625 S.E.2d 780 (2006).

Admittedly, there was not testimonial evidence that a mother failed to provide consistent financial support to the minor child. However, when compared to the overwhelming, substantive evidence supporting findings of fact four and five, that the mother physically harmed the minor child by hitting her with a belt and failed to consistently attend assigned mental health sessions as she only attended five of 10 sessions, and finding of fact six, that the mother failed to regularly visit the minor child, the substantive evidence supported the trial court's conclusion that the minor child was neglected pursuant to G.S. 7B-101(15). In re A.J.M., 177 N.C. App. 745, 630 S.E.2d 33 (2006).

Trial court's order concluding that a mother's children were neglected and ordering the continued legal custody of the children with a state agency was affirmed because the trial court's findings supported its conclusion of law that the children were neglected juveniles under G.S. 7B-101(15); the findings included instances of drug abuse and domestic violence by the mother and the father of one of her children. In re T.S., 178 N.C. App. 110, 631 S.E.2d 19 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302 (2007).

Trial court's conclusion that the father neglected both children because the minor children did not receive proper care or supervision and they lived in an environment injurious to their welfare was proper where the father admitted that he had been required to call the police because the mother had been throwing things. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).

Evidence sufficiently supported the trial court's finding that the mother's children were neglected, including that the mother delayed taking the one child for medical treatment for the one child's bruises because of the mother's fear that the county social services agency would take custody of the children and that the other two children had disciplinary and developmental problems while in the mother's care. In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007).

Trial court did not err in concluding that the minor child was a neglected juvenile, as the allegation in the petition that the minor child was neglected because the minor child lived in an environment injurious to the minor child's welfare was proven by clear and convincing evidence; indeed, the evidence showed that the minor child's older sibling was adjudicated abused and neglected because the mother's boyfriend, who was cohabitating with the mother at the time of the abuse, pled guilty to several felony sex offenses. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Adjudication of neglect was supported by evidence that the mother admitted to "thumping" the five-year-old daughter in the face hard enough with a finger to leave a bruise shaped like the mother's finger, the bruising of the four-year-old child's upper leg was from a severe blow delivered by his stepfather with a brush, respondents' effort to convince the younger child to lie about what happened to cause the bruise on his leg, the fact that the older child told the social worker that the bruise on her face came from falling in the bathtub, the same lie respondents tried to exact from the younger child, and the mother's admission that she left the younger alone in the bathtub every night for 20 to 30 minutes. In re L.T.R., 181 N.C. App. 376, 639 S.E.2d 122 (2007).

Trial court properly adjudicated a child to be a neglected juvenile where the testimony showed that the mother had left the child alone in a motel room when she was only 16 months old. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).

Fact that the mother admitted to using cocaine for at least two months prior to the child's birth, the mother and the child tested positive for cocaine at the time of the child's birth, that there were incidents of domestic violence between respondents, and that the mother refused to sign a safety assessment plan, provided clear and convincing evidence supporting a finding of neglect. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).

Mother's parental rights were properly terminated because the district court's findings that the mother changed employment every couple of months and had transportation problems that contributed to the mother's employment issues and the mother's difficulties in visitation with all of her children supported a determination that the child at issue was neglected under G.S. 7B-101. In re J.T.W., 361 N.C. 341, 643 S.E.2d 579 (2007).

Sufficient evidence supported the conclusion that a mother neglected the mother's child under G.S. 7B-101(15) and G.S. 7B-1111(a)(1) because the mother failed to stop substance abuse after the children were removed from the home and failed to meet their basic needs during a trial period. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007).

Child living with the maternal grandmother at the time a county department of social services' petition for neglect was filed was properly adjudicated neglected under G.S. 7B-101(15) because the relevant question was fitness of the child's mother to care for the child at the time of the proceedings; evidence showed the mother was not fit at that time. In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).

Findings relating to the prior adjudication of neglect and subsequent termination of parental rights as to the parents' first child and the parents' failure to comply with their case plan, when combined with the parents' failure to acknowledge culpability for their first child's injuries, supported the conclusion that the child was a neglected juvenile based on the high risk of future abuse or neglect. In re N.G., 186 N.C. App. 1, 650 S.E.2d 45 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355 (2008).

Termination of a mother's parental rights to her two minor children was upheld on appeal where the unchallenged findings of fact made by the trial court established by clear, cogent, and convincing evidence in the record that the mother had willfully left her children in foster care without making reasonable progress to correct the conditions that led to their placement. The findings supporting that conclusion included: the children were in foster care for over 12 months; the mother missed seven out of eleven appointments and failed to complete a substance abuse treatment program; missed five out of ten parenting classes; tested positive for drugs several times; failed to establish a permanent residence and had been moving around from family and friends for a total of eight separate residences; failed to obtain employment; and failed to stay in contact with the Department of Social Services. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).

Termination of a father's parental rights was upheld on appeal since the father failed to challenge any of the findings of fact made by the trial court, namely that prior to the date the motion to terminate his parental rights was filed, he never established paternity over the minor child at issue, never legitimated the child by statute or marriage, nor had he provided any financial support. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).

Where the children were taken into custody based on a referral from a hospital after the parents engaged in a physical fight where not only were the children present, but the mother was holding her youngest child in arms, and the mother failed to complete a required parenting program, failed to attend individual counseling, and failed to address her substance abuse issues, the evidence supported the conclusion that the children were neglected under G.S. 7B-101. In re D.B., 186 N.C. App. 556, 652 S.E.2d 56 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734 (2008).

Father's encouragement of smoking, drinking, and marijuana use by his biological children supported a determination that they were neglected children, but did not constitute abuse. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).

Termination order was supported by clear, cogent, and convincing evidence based on the mother's unfitness to have custody, and the overwhelming evidence of neglect, including improper supervision of her children, inappropriate discipline, and the severely unsanitary condition of the family's home due to the many different farm animals living therein, as well as a roach infestation. Further, given evidence of the significant positive progress that the children made since they were taken from the mother's custody, termination was in the children's best interests. In re J.A.P., 189 N.C. App. 683, 659 S.E.2d 14 (2008).

Unchallenged findings showing that, inter alia, the mother's home had no heat, the mother had not seen the child for a significant period of time, and the mother had begun allowing a sex offender to live with the mother, supported a finding of neglect. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).

Clear and convincing evidence supported a trial court's finding that a minor child was neglected and dependent pursuant to G.S. 7B-101(9) and (15) because the child was in an injurious environment where her father continued to be present despite his agreement to stay away; because the child's mother was not seeking to enforce the Safety Assessment Plan the father signed, the county youth and family services found it necessary to obtain a Non-Secure Custody Order to protect the child. In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).

Trial court did not err in terminating the parental rights of a mother and father because the record provided ample competent evidence to support the trial court's factual findings, and the findings of fact supported the trial court's conclusion of law, that their child was neglected and that it was probable that the neglect would be repeated. In re D.D., - N.C. App. - , - S.E.2d - (June 16, 2009).

Finding of neglect as to the mother under G.S. 7B-101(15) was supported by, inter alia, evidence that one child was locked outside for the home for a significant period of time even though the mother was home, two children frequently missed school, and the third child had not obtained routine immunizations and suffered from a yeast infection, eczema, and cradle cap. In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).

Findings of fact supported the trial court's conclusion that the child was neglected pursuant to G.S. 7B-101(15) because, inter alia, the trial court found that the child's sister, who lived in the same home, had been physically abused, that the child's parents had engaged in acts of domestic violence in the child's presence, that the mother was subsequently attacked by the father, after which she received a domestic violence protective order but never ceased contact with the father, and that the mother had abused alcohol and/or controlled substances. In re D.B.J., 197 N.C. App. 752, 678 S.E.2d 778 (2009).

Clear and convincing evidence showed that children were neglected because the children were substantially at risk due to (1) one child's life-threatening injuries and the children's parents' explanations that were inconsistent with the injuries, (2) the instability and volatility of the children's living conditions, (3) the parents' deceptive natures, and (4) living in an injurious environment that involved violence. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).

Sufficient evidence supported the termination of a mother's parental rights because the child was properly found to be a neglected juvenile under G.S. 7B-101(15) since the mother failed to complete a substance abuse program and attended only 10 of 29 scheduled visits with the child and such neglect was likely to continue since the mother was engaged in substance abuse, lacked employment, and failed to obtain stable housing. In re S.C.R., 198 N.C. App. 525, 679 S.E.2d 905 (2009), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).

Child was a neglected juvenile under G.S. 7B-101(15) as a father grew and consumed marijuana in the home, engaged in domestic violence in the child's presence, choked the mother to unconsciousness while the child was in vitro, called a social worker by a derogatory word, and engaged in domestic violence with a prior spouse. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

Mother's appeal of an order terminating the mother's parental rights to the mother's child pursuant to G.S. 7B-1111 was denied because the evidence was overwhelming in support of the initial finding that the child was neglected and would continue to be neglected if the mother regained custody; mother had failed to maintain a stable residence, was often in arrears on rent, and since August 31, 2006, there had been seven summary ejectment actions filed against the mother. In re K.J.L., 206 N.C. App. 530, 698 S.E.2d 150 (2010).

Because a father had visited his son infrequently failed to pay support, and would be incarcerated for five years or more, his parental rights to his son were terminated pursuant to G.S. 7B-1111(a) on the grounds that the father had neglected his son and had failed to provide any meaningful support for the son; termination of the father's parental rights would permit the son's stepfather to adopt the son and provide stability for the child. In re A.J.M.P., 205 N.C. App. 144, 695 S.E.2d 156 (2010).

Trial court did not err in terminating a father's parental rights to two children for neglect under G.S. 7B-1111(a)(1) and G.S. 7B-101(15), despite the progress the father made in a rehabilitation program during his incarceration. The father had exhibited a pattern of recovery and relapse regarding his addiction to crack-cocaine and marijuana, and the trial court properly considered that his success at rehabilitation while incarcerated was not indicative of how he would deal with his addiction once released. In re J.H.K., 215 N.C. App. 364, 715 S.E.2d 563 (2011).

Clear, cogent, and convincing evidence supported a trial court's termination of a mother's parental rights to her four-year-old child, based on neglect under G.S. 7B-1111(a)(1), because the mother failed to maintain stable employment and housing, had continued dependence on others to meet her basic needs, and the trial court had discretion to consider evidence that the mother's older child had been adjudicated a neglected child, pursuant to G.S. 7B-101(15); since the mother's release from jail in April 2008, she had five jobs and eight residences. In re C.G.R., 216 N.C. App. 351, 717 S.E.2d 50 (2011), review denied 365 N.C. 573, 724 S.E.2d 533, 2012 N.C. LEXIS 303 (2012).

Trial court did not err by concluding that children were neglected juveniles pursuant to G.S. 7B-101(15) because the children had never received any medical care while in the parents' home, and the father had beaten one of the children; the trial court properly considered evidence tending to show that the children's younger sister was an abused or neglected juvenile in determining whether the father and mother had neglected the children, and its findings of fact clearly established that the children lived in an environment that was injurious to their welfare. In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).

Sufficient evidence supported the trial court's adjudication of neglect of a five-year-old child because the mother no longer attended mental health therapy, declined free daycare, did not allow access to her records to determine whether she was compliant with her mental health medication, and the mother's refusal to cooperate with the Department of Social Services placed the child at risk of substantial harm; one erroneous finding of fact by the trial court, which was based on hearsay, did not constitute reversible error. In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823 (2013).

District court did not err when it adjudicated both children neglected juveniles because the mother placed the children at a substantial risk of physical, mental, or emotional impairment as a consequence of her failure to provide proper care, supervision, or discipline as she felt so overwhelmed that she could not care for the children that she left them with their father, a person she believed was a substance abuser, without even interacting with him in person to assess his sobriety and current fitness to care for the children; and the mother had disciplined the younger child in such an inappropriate manner that he had been adjudicated an abused juvenile and the mother was charged with misdemeanor child abuse. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).

Trial court's determination that a child was a neglected juvenile was supported by the evidence because its findings supported the conclusion that the child was not receiving proper care and supervision under the mother's care and that he was living in an environment injurious to his welfare; the trial court found that the mother had problems with drugs and that she had previously injured the child while abusing drugs. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).

Evidence that the mother was physically assaulted by the father while pregnant and continued to allow the father to have contact with the children despite a protect order support a finding of neglect. In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015).

Competent evidence supported the trial court's findings in part that: the father engaged in aggressive and violent behaviors in the home, he hit one child in the mouth causing a busted lip, and he struck the other child at least once; these findings showed that the children lived in an environment injurious to their welfare and that they were at a substantial risk of physical, mental, or emotional impairment. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Findings supported the conclusion that all four children were neglected, as there was ample evidence to support the finding that the mother sustained bruises from her fall after being pushed by the father, the trial court found that the youngest two children did not need to be in the middle of a fight to be subjected to an injurious environment, and the evidence supported the finding that all four children knew about the physical altercations; the trial court did not act under a misapprehension of the law, as the findings sufficiently detailed the impacts the father's violence with the mother had on the children. In re M.K., 241 N.C. App. 467, 773 S.E.2d 535 (2015).

Child was properly adjudicated as neglected because (1) the child's male cousin's sexual improprieties with the child showed a lack of proper care, and (2) the child was present when adults used marijuana, slept with the cousin, and was passed between adults with no determination of fitness, showing substantial risk of harm. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).

Because the evidence supported the trial court's findings that a minor child's father indicated an unwillingness to enter into a family services agreement, had never met with the child, and had no bond with the child, there was evidence to support the trial court's conclusion that the child was neglected by the father. Thus, there was evidence to terminate the father's parental rights on this statutory ground. In re C.L.S., 245 N.C. App. 75, 781 S.E.2d 680 (2016).

When the department took nonsecure custody of the children, all five were in the care of their grandmother, having no home, no electricity, no plumbing, and no food, and thus neglect was the same for all five children, and the availability of the boys' father, while relevant to an adjudication of dependency, had no bearing on an adjudication of neglect; the trial court could not have found that some of the children were neglected while others were not, and the trial court was to adjudicate the three boys, as well as the girls, neglected juveniles. In re Q.A., 245 N.C. App. 71, 781 S.E.2d 862 (2016).

Findings were sufficient for the trial court to conclude that the child was a neglected juvenile; he suffered an actual impairment due to his exposure to controlled substances, and the mother's erratic behavior and disregard for the domestic violence protection order against the father exposed the child to a substantial risk of impairment, and it was proper for a trial court to adjudicate a juvenile neglected, even if the juvenile never actually resided in the parent's home, as was the case here. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).

Trial court's findings supported its conclusion that respondents' child was a neglected juvenile in that respondents failed to provide proper supervision for the child. Even if inflicted by the child on himself, the child's injuries were nevertheless the result of physical harm by other than accidental means that respondents allowed to occur due to their failure to maintain the child's medication and provide adequate supervision to meet the child's special needs. In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).

Trial court did not err by adjudicating a child neglected because the parents failed to remedy the conditions that required the child to be placed with her sister in a safety plan, such that they were unable to provide the child with proper care. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Adjudication that the child was a neglected juvenile was affirmed because the prior orders entered into the record were not the sole basis for the trial court's decision; the child presently faced substantial risk in her living environment as the mother continued to fail to acknowledge her role in her rights being terminated to her six other children, she denied the need for any services for the child's case, and she became involved with the father, who had engaged in domestic violence, even though domestic violence was one of the reasons her other children were removed from her home; and the mother had not made sufficient progress in recognizing domestic violence warning signs, and in accurately assessing poor decisions from the past. In re J.A.M., 372 N.C. 1, 822 S.E.2d 693 (2019).

Child was neglected because the child's father was convicted for sexually abusing children and denied responsibility for those convictions, had persistent and serious mental health issues that affected the father's ability to parent the child, and lacked stable housing until shortly before the termination hearing. Furthermore, the district court found that there was a high probability that a repetition of neglect would occur in the future if the child were to be placed with the father. In re N.P., 374 N.C. 61, 839 S.E.2d 801 (2020).

Child was properly adjudicated dependent where although there was no evidence that the father had sexually abused her, the mother's allegations rendered him unavailable to provide care or supervision at the time of the petition. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).

Termination of the father's parental rights was proper on the ground of neglect because he failed to appreciably address his substance abuse issues; he had only shown an extended abstinence from cocaine use while incarcerated; he did not complete substance abuse treatment; he incurred serious felony charges during the pendency of the case and was convicted of discharging a firearm into occupied property; during his incarceration, he made no attempt to contact the child and had limited contact with the Department of Social Services; and he could not use his incarceration as a shield against a conclusion that there was a probability of future neglect. In re A.S.T., - N.C. - , - S.E.2d - (Nov. 20, 2020).

Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Evidence supported a finding of neglect under former G.S. 7A-517(21) where the trial court found that the respondent parents intended to live with their new infant in the home of the maternal grandparents where their previous child died; where the child's father had been convicted of causing the infant's death; where the mother had been advised regarding the cause of this non-accidental death but continued to support the father's version of events; where the parents had neither expressed nor exhibited any concern for the future safety of their newborn in their home; and where the father "extended most of the care for the juvenile" during the visits of the parents with the child. In re McLean, 135 N.C. App. 387, 521 S.E.2d 121 (1999).

Evidence Insufficient to Show Neglect. - Where at the time of termination proceedings, father was employed in a steady job for the first time in a number of years, had been alcohol free for over two years, had reduced his child support arrearage from $15,200 to $2,200, and had been paying $750 a month in child support ($500 in arrears and $250 to keep current), insufficient evidence existed to support a finding of neglect. Bost v. Van Nortwick, 117 N.C. App. 1, 449 S.E.2d 911 (1994).

The trial court's findings of fact did not support its conclusion that a child was neglected, where the trial court's finding that the mother did not provide the child with proper care, supervision, or discipline was more properly denominated a conclusion of law, and the court did not find that the child was impaired or at substantial risk of impairment. In re Everette, 133 N.C. App. 84, 514 S.E.2d 523 (1999).

Anonymous call, reporting a naked child two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; the determination of neglect required the application of the legal principles set forth in G.S. 7B-101(15), and was therefore a conclusion of law. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).

While the findings of fact and conclusions of law showed, by clear and convincing evidence pursuant to G.S. 7B-805, that a father neglected his three-month-old infant under G.S. 7B-101(15), based on an incident where the infant suffered a severe head injury while in his father's sole care, which could not have been attributed to rolling off the couch as the father contended happened when he went to get a bottle for the infant, the proof was insufficient to show that the mother had neglected the infant; she was not at home when the incident occurred and there were no other incidents involving the infant. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).

Trial court erred in finding that the mother neglected the child, because: (1) the trial court's finding of fact that the mother had failed to appropriately care for the child was not supported by clear and convincing evidence; (2) the trial court's findings of fact indicated that the mother was not at the home when the child suffered his injuries; (3) the child was developing appropriately and had never missed any doctor's appointments; (4) there were no allegations, evidence, or findings of fact related to any of the other bases for a finding of neglect as defined in G.S. 7B-101(15); and (5) there was no evidence presented indicating that the mother knew or reasonably should have known that the father would harm the child. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).

Because a finding of neglect against the father of three children under G.S. 7B-101(15) was based on the trial court's conclusion of abuse as to another child living in the same residence and that finding of abuse had been reversed, the finding was insufficient to establish a basis for neglect. In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).

County department of social services did not satisfy its burden of proving the allegations in its juvenile petitions by clear, cogent, and convincing evidence under G.S. 7B-1109 because the subject children were not neglected juveniles under G.S. 7B-101(15), nor dependant juveniles under G.S. 7B-101(9); the trial court in its ruling properly entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children during a domestic disturbance; (2) the parents' three oldest children left their residence with the father, but no kidnapping was reported, and an Amber Alert was not issued; (3) the district attorney's office dismissed the charges against the father for communicating threats to and assault by pointing a gun at the mother; and (4) the father was not in possession of a gun when he was arrested. In re H.M., 182 N.C. App. 308, 641 S.E.2d 715 (2007).

Department of social services failed to present evidence that the children were neglected, as defined in G.S. 7B-101(9), and dependent, as defined in G.S. 7B-101(15); although the record showed that the parents abused alcohol, the record contained no evidence that the children suffered any harm or were in anyway neglected as a result. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007).

Trial court erred in order termination of the father's parental rights based on neglect, because the trial court failed to consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. Since the time the petition to terminate the father's rights was filed, the father was released from incarceration, had obtained full-time employment, had family medical insurance available through the father's employer, and had a furnished apartment which was near the father's work and schools for the children. In re G.B.R., 220 N.C. App. 309, 725 S.E.2d 387 (2012).

Findings of fact did not support a trial court's conclusion that the parents' child and nieces were neglected because, even if it were assumed that a parent abused the step-daughter of the parent's cousin in the parents' home where the child and nieces lived, this fact alone did not support a conclusion that the children were neglected. The trial court also failed to make any findings of fact regarding other factors that would have supported a conclusion that the abuse would have been repeated. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014).

Trial court's findings of fact did not find clear, cogent, and convincing evidence and were insufficient to support its conclusion of law that the father's parental rights could be terminated on the ground that he was incarcerated because it failed to make any adjudicatory findings concerning the father's alleged failings; the trial court found no other grounds existed upon which to base termination of the father's parental rights. In re J.D.A.D., 253 N.C. App. 53, 801 S.E.2d 653 (2017).

Evidence Insufficient to Show Neglect Under Former G.S. 7A-517. - The trial court correctly held that there was insufficient evidence to support a finding that the siblings of a child who died under mysterious circumstances were abused or neglected. Norris v. Zambito, 135 N.C. App. 288, 520 S.E.2d 113 (1999).

Spanking by Father Did Not Rise to Level of Serious Injury for Abuse. - Finding of child abuse under G.S. 7B-101(1) was improper because the only evidence of record was a spanking by the father with a belt, resulting in a bruise on the child's buttocks, which did not rise to the level of "serious injury" to constitute abuse by clear and convincing evidence, as required by G.S. 7B-805. In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).

Emotional Damage. - Trial court did not err in its adjudicating a mother's daughter abused or in its disposition. In light of false allegations of abuse which the trial court found the mother made against the father, the appellate court could not conclude that the trial court erred in providing clarity in its order when it identified the mother as the parent who created or allowed to be created serious emotional damage. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).

Evidence Held Sufficient to Show Abuse. - The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Children were held to be abused juveniles, where the court found that the children had suffered serious emotional damage as the result of their parents' acrimonious marital dispute as the older daughter exhibited symptoms of depression and had entertained suicidal thoughts, and the younger daughter testified about the severe anxiety her parents' actions caused her. Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398 (1998).

The trial court's findings of fact regarding child's status as an abused juvenile were supported by clear and convincing evidence where the child testified that her father had shown her a picture of a woman wearing a see-through dress, the child's friend drew a picture in court of what she had seen, i.e. the father's anatomy, a social worker testified that the child had told her that her father had "asked her to touch his penis," and a doctor testified that the child had told her that her father had asked her to look at a "dirty book." In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).

Father's children were found abused by his wife under G.S. 7B-101(1)(a), (b) based upon G.S. 7B-101(15) clear and convincing evidence that wife regularly abused the children, inter alia, by choking, hitting with her hands and a cookie jar, pulling out their hair, and fighting with them, and by drinking alcohol and using crack cocaine in front of the children; furthermore evidence showed that the father did not protect the children from such behavior. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

Parental rights were properly terminated under G.S. 7B-1111 because the trial court found that the children were abused under G.S. 7B-101(1) and that they exhibited symptoms of that abuse; further, the Department of Social Services met its burden of proving that termination was in the best interests of the children under G.S. 7B-1110(a). In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007), review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).

Evidence that the mother (1) knew of the father's violent and abusive nature and alcohol abuse, (2) failed to take the steps necessary to protect the minor children, (3) witnessed many of the incidents where the father would consume alcohol to excess and act out upon the children, and (4) allowed the father to drive the children after the father had consumed a large quantity of alcohol sufficiently supported a determination that the mother allowed to be created a substantial risk of serious physical injury to the children other than by accidental means, and thus, supported a finding of abuse as to the mother. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).

In terminating parental rights, the trial court only needed to find one basis for termination pursuant to G.S. 7B-1111, and the trial court based its termination on detailed findings and conclusions as to ongoing, severe and repeated abuse of the child, who suffered injuries that were not accidental (including fractures), who had failed to thrive, and who was an abused juvenile as defined by G.S. 7B-101(a); thus, respondent mother's argument that the termination was based solely on felonious child abuse charges lacked merit. In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).

Clear and convincing evidence supported a trial court's finding that a minor child was an abused juvenile pursuant to G.S. 7B-101(1)(d) as she was being raped by her father because the trial court properly evaluated a physician's testimony that the child's physical condition was consistent with child sexual abuse; the child's testimony that her father raped her repeatedly over the course of a year was corroborated by the physician, who found that her vaginal trauma was consistent with forced penetration, and the child's testimony, along with the physician's findings, were sufficient for the trial judge to find that the child was abused pursuant to G.S. 7B-101(1)(d). In re K.W., 192 N.C. App. 646, 666 S.E.2d 490 (2008).

Clear and convincing evidence showed that a child was abused because medical and other evidence that (1) the child's injuries were non-accidental, (2) the trauma occurred shortly before the child's hospital admission, and (3) the child's injuries were life-threatening supported legal conclusions that the child was abused in that a person responsible for the child's care allowed a serious physical injury to be inflicted on the child by non-accidental means and created or allowed to be created a substantial risk of serious physical injury to the child by non-accidental means. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).

Trial court did not err in adjudicating a mother's child as abused under G.S. 7B-101(1)(a) and (b) because the mother, while holding the one-month-old child in her arms, initiated a physical altercation with her boyfriend that led to her falling to the floor while being punched repeatedly; although the child was not injured, the mother suffered multiple knots and bruises, and the mother's decision to enter into a physical altercation while holding the child created a substantial risk of serious physical injury to her, particularly considering her extremely young age and overall helplessness. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).

Trial court's findings supported its determination that a child was a neglected juvenile under G.S. 7B-101(15) because the mother, while holding the one-month-old child in her arms, initiated a physical altercation with her boyfriend that led to her falling to the floor while being punched repeatedly, and the mother failed to report the incident to law enforcement when they were called to the scene to investigate; the mother was being treated for bipolar disorder, and she did not believe her treatment was working. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).

District court did not err when it adjudicated the eight-year-old child as an abused juvenile because the mother struck the child five times with a belt, leaving multiple bruises on the inside and outside of his legs which were still visible the following afternoon; and the child described the discipline as a beating. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).

Child and the child's brother were properly adjudicated to be abused, under G.S. 7B-101(1)(d), because the evidence showed the child's mother and stepfather allowed the brother to commit G.S. 14-27.3 second-degree statutory rape and G.S. 14-27.5 second-degree statutory sexual offense against the child, despite being made aware of the conduct. In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).

Substantial evidence supported the findings that the mother informed several co-workers that her son was possessed by demons and had performed a demonic dance move, suffered from paranoia, told her son that he was possessed, and, along with a boyfriend, had tied the son to a tree with duct tape. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).

Sufficient evidence supported the conclusion that a second child in the house was neglected given the trial court's findings that the abused child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons, and thus, the second child lived in an injurious environment and faced a substantial risk of physical, mental, or emotional impairment. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).

Trial court did not err in finding that a stepmother was a responsible individual and in placing her name on the Responsible Individuals List because the child's testimony tended to establish that when the stepmother struck him in the head it was intentional, by other than accidental means; the stepmother was a responsible individual because she was a parent, guardian, custodian, or caretaker, and she abused the child. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Infant child sustained a torn lingual frenulum and multiple bone fractures, which were serious injuries inflicted by other than accidental means, which supported the conclusion that the child was abused; the finding that the parents were responsible was appropriate, as they were the sole caretakers. In re R.S., 254 N.C. App. 678, 802 S.E.2d 169 (2017).

Evidence before the trial court was sufficient to support its findings of abuse and neglect where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).

Abuse and neglect determination was supported by evidence that the child's skull fracture was a depression fracture caused by non-accidental means, the mother's explanations were inconsistent with the injuries observed, the injuries occurred while the child was in the physical custody of the mother, the injuries were severe, and the mother failed to obtain medical attention for the child. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008).

Evidence Insufficient to Show Both Abuse and Neglect. - Trial court's detailed findings of fact, including that the doctors noted in medical records that the infant was a healthy, well-cared-for, three-month-old baby and that respondents were at all times forthcoming and cooperative in the investigation and did not delay in seeking medical attention, did not support the conclusion that respondents abused or allowed abuse of the child. Not only did the Department of Social Services fail to check the box for neglect on the form petition, but the allegations did not clearly allege the separate claim of neglect. In re K.L., - N.C. App. - , 845 S.E.2d 182 (2020).

Evidence Insufficient to Show Both Neglect And Dependence. - Trial court erred in adjudicating a mother's child neglected and dependent because the evidence and supported findings demonstrated the mother suffered from mental health issues, but was attending some treatment, while her older children were removed from her care, the findings were insufficiently detailed to determine the grounds for their removal, and the mother placed the child with a couple with the assistance of the owners of the laundromat where the mother resided, she did not merely acquiesced in the plan created for the child by the Department of Social Services, Youth, and Family Services. In re B.P., 257 N.C. App. 424, 809 S.E.2d 914 (2018).

Evidence Held Sufficient to Place Parent on Responsible Individuals List. - Trial court's findings that the child was forced to sleep outside, bound to a tree, required to participate in a self-baptism, ordered to pray while the boyfriend brandished a firearm, struck with a belt all over his body, and repeatedly told that he was possessed by demons justified the mother's placement on the responsible individuals list. In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).

Parental Rights Properly Terminated. - The following findings supported the court's conclusion that a mother's parental rights should be terminated for neglect: (1) The child was in the bottom 5% of children in her age group in weight; (2) the mother failed to supervise her properly; (3) the child was allowed to remain in dirty diapers and to drink out of discarded bottles; (4) the child lived in an environment injurious to her health and welfare; and (5) the mother suffered mental problems resulting in inability to care for herself and her child. In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985).

Even if there is no evidence of neglect at the time of the termination proceeding, parental rights may still be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parent or parents. In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (2000).

Termination of parental rights under G.S. 7B-1111(a)(1), based on a finding that parents' children were neglected pursuant to G.S. 7B-101(15), was supported by evidence that the parents' relationship involved aggression and violence, that neither had learned to control their aggressive tendencies, that their conduct was harmful to the children, and that termination of parental rights was in the children's best interests. In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).

Trial court did not err by terminating a mother's parental rights to three children on grounds of neglect because there was evidence of prior neglect, the neglect was ongoing, a substantial probability existed the children would be neglected or abused in the future, and the mother continued to associate with individuals who abused her or the children. In re D.A.H.-C., 227 N.C. App. 489, 742 S.E.2d 836 (2013).

District court's findings supported the conclusion that the father's parental rights were subject to termination as the child would likely be neglected again if the child were returned to the father's care because the mother struggled with basic parenting skills and relied on the father as a main support for parenting; the father was willing to leave the child alone in the care of the mother even though the mother was unfit for such accountability; the parents continued to be in constant marital discord even while having supervised visits with the child; and the parents intended to remain together despite the aforementioned problems. In re Z.V.A., 373 N.C. 207, 835 S.E.2d 425 (2019).

The trial court's decision adjudicating a mother's son as a neglected and dependant juvenile was not supported by clear, cogent, and convincing evidence because the trial court's order (1) did not distinguish between findings of fact and conclusions of law, (2) did not reference any of the several statutory grounds for determining neglect, and (3) was based on an order adjudicating the son's siblings neglected in another case, which had been remanded for adequate findings of fact and conclusions of law. In re T.M.M., 167 N.C. App. 801, 606 S.E.2d 416 (2005).

Trial court's ordering of neglected juvenile into the custody of the Department of Social Services was not error, even though it was unable, at the time, to provide adequate living and educational facilities for the juvenile. In re Kennedy, 103 N.C. App. 632, 406 S.E.2d 307 (1991).

Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).

District court had no right to assume custody jurisdiction of minor children upon its finding that they were "neglected" children to the exclusion of the district court which had previously acquired custody jurisdiction in a divorce and custody proceeding of the children's parents. In re Greer, 26 N.C. App. 106, 215 S.E.2d 404, cert. denied, 287 N.C. 664, 216 S.E.2d 910 (1975).

Parents have the duty to take every step reasonably possible under the circumstances to prevent harm to their children. Failure to perform this duty is negligence. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Department's Failure to Investigate All Potential Causes of Injuries. - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Department's Failure to Investigate All Potential Causes of Injuries. - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Investigator Had No Duty to Report Abuse by Teacher. - Negligent infliction of emotional distress claim filed against a law enforcement investigator who failed to report to the department of social services that a middle school teacher was engaging in inappropriate contact with students was barred by the public duty doctrine because the investigator did not have a duty under G.S. 7B-101 and G.S. 7B-301 to report abuse by a teacher and the special relationship exception did not apply given that the investigator was not present in the middle school on a day-to-day basis and did not have a direct relationship with students. Collum v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 598 (W.D.N.C. 2008).

Permanent Nature of Disfigurement. - By using the word "disfigurement" instead of words of transient import such as bruise, abrasion, contusion, discoloration, marks, or stripes in context with other words clearly indicating permanency ("death," "impairment of physical health," "loss or impairment of function of any bodily organ") the General Assembly obviously intended to limit the application of subdivision (1)a of this section to injuries permanent in their effect. In re Mickle, 84 N.C. App. 559, 353 S.E.2d 232 (1987).

A temporary bruising is not a "disfigurement" under subdivision (1)a of this section. In re Mickle, 84 N.C. App. 559, 353 S.E.2d 232 (1987).

Procedure upon Finding Juvenile in Contempt. - The trial court was not authorized to summarily commit a child under 16 to state custody upon finding her in contempt of an order entered for engaging in undisciplined and non-criminal behavior, but was required to follow specific statutory provisions applicable to children of that age. Taylor v. Robinson, 131 N.C. App. 337, 508 S.E.2d 289 (1998).

Department of Social Service's reunification efforts were reasonable under G.S. 7B-101 to prevent a father's kids' removal from his home where the department completed two family services case plans with custodial father outlining what needed to be accomplished, provided supervised visits between him and his kids, and provided family counseling to the parties involved in addition to other services provided by the department. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

"Reasonable Effort" - "Reasonable effort" has been defined to mean the diligent and timely implementation of a plan of action; in the context of G.S. 15A-1344(f) that would mean those actions a reasonable person would pursue in seeking to notify defendant of his probation violation and conduct a hearing on the matter. State v. Burns, 171 N.C. App. 759, 615 S.E.2d 347 (2005).

Reasonable Efforts Used Toward Reunification. - There was ample evidence showing that the Department of Social Services used reasonable efforts towards reunification, and thus the mother's argument that the trial court did not have the evidence it needed to find her behavior was willful or that her progress was not reasonable for termination purposes was unavailing; there was clear evidence to support findings that the mother willfully left the children in foster care for more than 12 months and failed to make reasonable progress. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875 (2018).

Evidence Insufficient to Show Reasonable Efforts at Reunification. - Trial court's findings that the department made reasonable efforts to reunify under G.S. 7B-101(18), and that one child was not likely to return home in six months, were not supported by competent evidence; the department gave the mother limited assistance in obtaining housing, which help proved useless, yet she had located three potential homes and was optimistic she could rent one of them. In re S.D., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Evidence Insufficient to Show Reasonable Efforts at Reunification. - Trial court's findings that the department made reasonable efforts to reunify under G.S. 7B-101(18), and that one child was not likely to return home in six months, were not supported by competent evidence; the department gave the mother limited assistance in obtaining housing, which help proved useless, yet she had located three potential homes and was optimistic she could rent one of them. In re S.D., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Evidence Necessary. - Conclusion that a parent acted inconsistently with their constitutionally protected rights is not necessary to terminate parental rights based on neglect. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).

Allegations of G.S. 7B-602 Parental Condition Triggers Required Appointment of Guardian Ad Litem. - Department of social services "alleged" that the mother's dependency and mental illness were the cause of her child's problems so, even without allegations of specific facts, it was error under G.S. 7B-602 for the lower court not to appoint a guardian ad litem for her before it adjudicated whether her child was dependent and neglected under G.S. 7B-101(9), (15). In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).

Dependency Finding Reversed. - Decision that a child was dependent under G.S. 7B-101(9) was reversed because a trial court failed to conduct the two-part analysis; the court did not consider the availability of alternative child care arrangements where the evidence showed that a relative was willing to take the child in question. In re P.M., 169 N.C. App. 423, 610 S.E.2d 403 (2005).

Fact that the father could have been criminally liable for statutory rape pursuant to G.S. 14-27.7A(a), standing alone, was insufficient to support a conclusion that the father was unable to provide appropriate care for the child and that therefore the child was a dependent child. In re J.L., 183 N.C. App. 126, 643 S.E.2d 604 (2007).

District court erred when it adjudicated both children dependent juveniles because the father was able to provide proper care for the children as the county department of social services had found his home a safe and suitable placement, and the children had adjusted well to the placement and their new school. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).

Trial court erred in adjudicating a child as dependent because the county department of social services failed to present any evidence on child care at the hearing, and the trial court made no finding of fact that the mother lacked an alternative child care arrangement. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).

Trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).

Change of Custody Improper. - Given that the department of social services was prohibited under G.S. 7B-903(a)(2)(c) from returning physical custody of a child, to the parent from whom the child had been taken, without a hearing in which a court found that the child would receive proper care in a safe home, as defined in G.S. 7B-101(19), a trial court erred in changing custody of a child from a father to the mother because the court was required to find, but did not find, that the child would receive from the mother the necessary proper care and supervision in a safe home, particularly in light of prior evidence that domestic violence had occurred in the home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Return of Child to Parents Did Not Make the Issue of Neglect Moot. - Although a father regained full custody of his child, since there were collateral legal consequences that could arise from a neglect adjudication, such as a determination of whether another child was neglected, the appeal from the adjudication of neglect should not have been dismissed as moot. In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006).

Judicially Noticed Findings. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Applied in In re Small, 138 N.C. App. 474, 530 S.E.2d 104 (2000); In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000); In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001); State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47 (2002); In re Johnston, 151 N.C. App. 728, 567 S.E.2d 219 (2002); In re Yocum, 158 N.C. App. 198, 580 S.E.2d 399 (2003); In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555 (2003); In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004); In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004); In re D.Q.W., 167 N.C. App. 38, 604 S.E.2d 675 (2004); In re A.P., 165 N.C. App. 841, 600 S.E.2d 9 (2004); In re B.M., 168 N.C. App. 350, 607 S.E.2d 698 (2005); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re C.C., 173 N.C. App. 375, 618 S.E.2d 813 (2005); In re K.D., 178 N.C. App. 322, 631 S.E.2d 150 (2006); In re J.K.C., 218 N.C. App. 22, 721 S.E.2d 264 (2012); State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64 (2013), review denied 367 N.C. 256, 749 S.E.2d 886, 2013 N.C. LEXIS 1285 (2013); State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302 (2014); In re L.R.S., 237 N.C. App. 16, 764 S.E.2d 908 (2014); In re O.J.R., 239 N.C. App. 329, 769 S.E.2d 631 (2015); In re A.B. J.B., 245 N.C. App. 35, 781 S.E.2d 685 (2016), review denied, 793 S.E.2d 695, 2016 N.C. LEXIS 990 (2016).

Cited in In re Pegram, 137 N.C. App. 382, 527 S.E.2d 737 (2000); Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000); In re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001), aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001); In re Pope, 144 N.C. App. 32, 547 S.E.2d 153 (2001); State v. Branham, 153 N.C. App. 91, 569 S.E.2d 24 (2002); In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002); In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003); In re Estes, 157 N.C. App. 513, 579 S.E.2d 496 (2003), cert. denied, 357 N.C. 459, 585 S.E.2d 390 (2003); In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003); In re Everett, 161 N.C. App. 475, 588 S.E.2d 579 (2003); In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004); In re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896 (2004); In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387 (2004), cert. denied, 359 N.C. 68, 604 S.E.2d 314 (2004); In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006); In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); In re A.S., 182 N.C. App. 139, 641 S.E.2d 400 (2007); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007); In re A.H., 183 N.C. App. 609, 644 S.E.2d 635 (2007); State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007); In re A.M., 192 N.C. App. 538, 665 S.E.2d 534 (2008); In re S.C.H., 199 N.C. App. 658, 682 S.E.2d 469 (2009), aff'd, 363 N.C. 828, 689 S.E.2d 858, 2010 N.C. LEXIS 196 (2010); In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009); In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010); In re J.H.K., 205 N.C. App. 165, 695 S.E.2d 162 (2010); In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517 (2010); In re L.H., 210 N.C. App. 355, 708 S.E.2d 191 (2011); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); In re D.M., 211 N.C. App. 382, 712 S.E.2d 355 (2011); Jenkins v. Hearn Vascular Surgery, P.A., 217 N.C. App. 118, 719 S.E.2d 151 (2011); In re K.O., 223 N.C. App. 420, 735 S.E.2d 369 (2012); In re T.J.F., 230 N.C. App. 531, 750 S.E.2d 568 (2013); In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49 (2014); In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015); In re T.R., 250 N.C. App. 386, 792 S.E.2d 197 (2016); In re M.A.W., 370 N.C. 149, 804 S.E.2d 513 (2017).

Opinions of Attorney General

Editor's Note. - The opinion below was rendered under former Chapter 7A.

The definition of "sexual abuse" as set forth in the recent amendments to the Child Abuse Prevention and Treatment Act (42 U.S.C. § 5101 et seq., as amended by P.L. 95-266) was encompassed within the definition of "abused child" as set forth in former G.S. 110-117 and the definition of "neglected child" as set forth in former G.S. 7A-278(4). See opinion of Attorney General to Mr. Carl H. Harper, Regional Attorney, Region IV, United States Department of Health, Education and Welfare, 48 N.C.A.G. 1 (1978).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

This Article vests exclusive, original jurisdiction over any case involving a child in the district court judge and provides in detail for procedures in the district court in cases involving children. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972), decided under former G.S. 7A-278 and G.S. 7A-279.

Federal & State Interrelationships. - G.S. 7B-200(a) states that the court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent; the statute defines "court" as the district court division of the General Court of Justice - that is, state district court, not federal district court. G.S. 7B-101(6). Wood v. Mecklenburg County Dep't of Soc. Servs., - F. Supp. 2d - (W.D.N.C. Aug. 18, 2008).

Insufficient findings showed a trial court had jurisdiction under the Indian Child Welfare Act, 25 U.S.C.S. § 1901 et seq., because judicial notice could not be taken of a proffered 25 U.S.C.S. § 1919 memorandum of agreement (MOA) between a tribe and the state, since the MOA was not authenticated, and the MOA was a legislative fact of which judicial notice could not be taken. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

Nature of Proceedings. - As the district court division has exclusive original jurisdiction of Juvenile Code matters, actions under the former Juvenile Code (formerly G.S. 7A-516 et seq.) are not special proceedings. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Petition of Continuing Jurisdiction. - Juvenile court, which acquired jurisdiction over children as of September 26, 1984, when service of summons was completed on parent, and on September 27, 1984, entered an order allowing Department of Social Services (DSS) to retain temporary and legal custody of the children, retained continuing jurisdiction over the children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Jurisdiction over Juveniles. - Where defendant was twelve or thirteen at the time he committed the felony of crime against nature, but had subsequently become an adult, the district court had exclusive original jurisdiction, because for the purposes of determining subject matter jurisdiction over a juvenile, age at the time of the alleged offense governs. State v. Dellinger, 343 N.C. 93, 468 S.E.2d 218 (1996).

Where juvenile was temporarily living with his uncle in North Carolina he was found to reside in North Carolina, thus permitting disposition of delinquency petitions in the district where the acts allegedly occurred, even though the juvenile's mother, who resided in the District of Columbia, had custody of him. In re Robinson, 132 N.C. App. 122, 510 S.E.2d 190 (1999).

Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Jurisdiction over Neglect and Dependency Proceedings. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father, as required by former G.S. 7A-565, had the authority to decide the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Trial court lacked subject matter jurisdiction to enter orders finding the mother's four minor children to be abused an neglected after the county social services department of the neighboring county, due to a conflict the county social services department had, conducted an investigation and found that allegations of abuse and neglect by the mother's church and the caretaker of the children were unfounded; once an official finding that no abuse and neglect had occurred, the trial court lost the authority to declare that it had occurred and to determine that the four minor children should be removed from the custody of the caretaker. In re S.D.A., 170 N.C. App. 354, 612 S.E.2d 362 (2005).

District court, in adjudicating a child neglected, was not limited to considering only those circumstances occurring within its district. To hold otherwise would allow abusive and neglectful parents to avoid court intervention by simply moving from county to county. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).

Trial court had jurisdiction over a child's mother and father where both parents were properly served with the summons and the petition alleged that the child was neglected. In re M.B., 179 N.C. App. 572, 635 S.E.2d 8 (2006).

When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

In a case in which a district terminated the parental rights of a mother and a father, the mother and the father unsuccessfully argued on appeal that the district court lacked subject matter jurisdiction to act upon a motion in the cause to reassume custody by appellee, a county Department of Social Services, because the district court terminated its jurisdiction over the juvenile when it ordered the case closed. Closing a case did not mean the same thing as terminating jurisdiction, and each was a separate action with distinct consequences; once jurisdiction of the court attached to a child custody matter, it existed for all time until the cause was fully and completely determined. In re S.T.P., 202 N.C. App. 468, 689 S.E.2d 223 (2010).

Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

Trial court lacked jurisdiction to enter an order adjudicating a mother's son neglected and dependent and placing him in the custody of a department because there was no finding of fact, order, or other indication that the New York court involved in prior protective services had opted not to exercise jurisdiction; there was no finding or conclusion concerning status of the New York court's jurisdiction or finding that the North Carolina court met the requirements of G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) such that it could make a modification under G.S. 50A-203. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204 (2013).

County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

Child custody action was not pending when a neglect proceeding was initiated because as the juvenile court obtained jurisdiction over the children, the juvenile court had continuing exclusive jurisdiction unless jurisdiction was terminated by order of the court; at the time the father filed the civil custody action, the trial court had no jurisdiction over the child custody action because of the already-pending neglect proceeding. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).

Trial Court Had No Authority to Act Where No Request for Relief in Motion - Trial court lacked subject matter jurisdiction to enter an order on the county Department of Social Services' (DSS) "motion in the cause," which was made at the previous direction of the trial court for DSS to petition for termination of a mother's parental rights, where the motion lacked any request for relief, as required by G.S. 1A-1, Rule 7(b)(1); although the trial court had subject matter jurisdiction over termination proceedings and motions therein, pursuant to subdivision (a)(4) of this section and G.S. 7B-1101, it was bound to follow the Rules of Civil Procedure in such an action, based on G.S. 1A-1, Rule 17(c)(2), and accordingly, the motion was found to be insufficient. In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003).

Trial court had authority to assert jurisdiction over child who had relocated to North Carolina from Florida. - Under former G.S. 50A-3(a)(3)(ii), the emergency jurisdiction provision of the UCCJA, where child was present in Durham County at the time the petition was filed alleging that she had been sexually abused; however, the trial court erred by failing to contact the Florida court that had previously exercised jurisdiction over the custody of the child to determine if that court would exercise jurisdiction, prior to attempting to change custody. In re Malone, 129 N.C. App. 338, 498 S.E.2d 836 (1998).

The trial court had jurisdiction to enter a temporary nonsecure custody order. - Placing children who had been visiting noncustodial parent in North Carolina, but whose "home state" under the former UCCJA was Iowa, with DSS where there was a reasonable factual basis to believe that one child had been sexually abused and hospitalized for depression and the other child had been physically abused and was hospitalized for stress disorder, pending application to home state determine if Iowa was willing to exercise jurisdiction. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160 (1997), appeal dismissed, 347 N.C. 576, 502 S.E.2d 618 (1998).

Jurisdiction to Issue Nonsecure Custody Order. - County department of social services (DSS) had no right to appeal the trial court's denial of the court's motion to review the foster care board rate provisions of a nonsecure custody order under G.S. 7B-1001(a)(1), which permitted appeal from any order finding absence of jurisdiction, as the trial court never ruled that the court lacked jurisdiction to decide DSS's motion. Under G.S. 7B-506(d), 7B-200(a), the trial court clearly had jurisdiction to enter a nonsecure custody order; and, assuming arguendo that the court erred in the scope of the court's order for board payments to foster parents, this did not necessarily deprive the court of jurisdiction. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917 (2008).

Trial Court Lacked Jurisdiction in Termination of Parental Rights Action Where Juvenile Petition Not Properly Filed. - In a termination of parental rights action, the trial court lacked jurisdiction to conduct the permanency planning and review hearings because the Department of Social Services failed to file a proper juvenile petition consistent with the requirements of G.S. 7B-402(a) and G.S. 7B-403(a), and thus no juvenile abuse, neglect, or dependency action was ever commenced. In re E.B., - N.C. - , - S.E.2d - (Sept. 25, 2020).

Affidavit Not Required. - Where the court obtained jurisdiction over a juvenile matter pursuant to former G.S. 7A-523, and not Chapter 50A, the Uniform Child Custody Jurisdiction Act, the affidavit referred to in former G.S. 50A-9 was not a prerequisite to its jurisdiction. In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).

Even where the juvenile petition filed by the county social services department failed to attach an affidavit as to the status of the minor child, the trial court did not lack subject matter jurisdiction over the minor child's neglect and dependency proceeding; although the better practice was to attach the affidavit, the failure to file the affidavit did not by itself divest the trial court of subject matter jurisdiction. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Power to Order Sex Offender Treatment. - The district court had power to order the Department of Human Resources, Division of Youth Services to give sex offender treatment to an adolescent found delinquent because of sex offenses and subsequently to deny the conditional release of that adolescent because treatment had not been in compliance with that mandate. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).

Ordering Division of Youth Services to provide specific treatment for sexual offenders for a delinquent juvenile in its custody, when such treatment was available, was within the scope of the court's statutory authority. In re Doe, 329 N.C. 743, 407 S.E.2d 798 (1991).

Procedure upon Finding Juvenile in Contempt. - The trial court was not authorized to summarily commit a child under 16 to state custody upon finding her in contempt of an order entered for engaging in undisciplined and non-criminal behavior, but was required to follow specific statutory provisions applicable to children of that age. Taylor v. Robinson, 131 N.C. App. 337, 508 S.E.2d 289 (1998).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011); Johns v. Welker, 228 N.C. App. 177, 744 S.E.2d 486 (2013).

Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re J.W.S., 194 N.C. App. 439, 669 S.E.2d 850 (2008); In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (June 18, 2009); In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628 (2014); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015); In re J.S., 250 N.C. App. 370, 792 S.E.2d 861 (2016); In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598 (2017).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Periodic Judicial Review. - Contrary to the mother's assertion, when custody of five children was placed with the father and jurisdiction was terminated by the trial court's dispositional order, the trial court had no further duty or authority to conduct placement reviews. In re Dexter, 147 N.C. App. 110, 553 S.E.2d 922 (2001).

Jurisdiction over Neglect and Dependency Proceedings. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father, as required by former G.S. 7A-565, had the authority to decide the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).

When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

Child custody action was not pending when a neglect proceeding was initiated because as the juvenile court obtained jurisdiction over the children, the juvenile court had continuing exclusive jurisdiction unless jurisdiction was terminated by order of the court; at the time the father filed the civil custody action, the trial court had no jurisdiction over the child custody action because of the already-pending neglect proceeding. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).

Retention of Continuing Jurisdiction. - Juvenile court, which acquired jurisdiction over children as of September 26, 1984, when service of summons was completed on parent, and on September 27, 1984, entered an order allowing Department of Social Services (DSS) to retain temporary and legal custody of the children, retained continuing jurisdiction over the children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

In a case in which a district terminated the parental rights of a mother and a father, the mother and the father unsuccessfully argued on appeal that the district court lacked subject matter jurisdiction to act upon a motion in the cause to reassume custody by appellee, a county Department of Social Services, because the district court terminated its jurisdiction over the juvenile when it ordered the case closed. Closing a case did not mean the same thing as terminating jurisdiction, and each was a separate action with distinct consequences; once jurisdiction of the court attached to a child custody matter, it existed for all time until the cause was fully and completely determined. In re S.T.P., 202 N.C. App. 468, 689 S.E.2d 223 (2010).

Jurisdiction Terminated. - Trial court did not err in asserting jurisdiction over a child custody action after a juvenile proceeding was terminated because the court had subject-matter jurisdiction to consider the father's custody claim once he invoked jurisdiction by filing a motion; the juvenile order terminated the jurisdiction of the juvenile court over the child and, thus, the legal status of the juvenile and the custodial rights of the parties reverted to the status they were before the juvenile petition was filed. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).

Effect of Voluntary Dismissal of First Termination Petition. - Fact that county department of social services had dismissed a prior petition for termination of a mother's parental rights did not preclude a subsequent petition since the best interests of the children was always the primary focus, with no procedural rule barring the court's continuing jurisdiction over such a matter. In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236 (2005).

Jurisdiction Until 18 or Emancipated. - Although a trial court in a custody dispute ended the custody of a county department of social services, the court did not err in retaining jurisdiction to conduct period review hearings, despite a father's claim that the court, under G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1), the court was relieved of the duty to conduct such reviews after custody was awarded to the father; in deciding a custody case under G.S. 7A-657, the almost-identical predecessor to G.S. 7B-906 (repealed, see now G.S. 7B-906.1), the state's supreme court had already ruled that the relevant statutory language meant only that a trial court had a right to terminate its jurisdiction, but a trial court was not required to do so. Further, in the context of the Juvenile Code, North Carolina, G.S. 7B-201 provided that once a court obtained jurisdiction over a juvenile, that jurisdiction continued until terminated by a court order or until the juvenile reached the age of 18 years or was otherwise emancipated, and the parties' child was not yet 18 or emancipated. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Father's appeal was moot because the trial court's order changing the permanent plan for his child was rendered moot when she reached the age of majority, which deprived the trial court of any further jurisdiction over the matter, the father conceded that the legal effect of the order did not have any collateral consequences, the case did not present anything so exceptionally important to the public interest that it should be treated as different from all other juvenile cases, the capable-of-repetition exception did not apply to legal errors in fact findings and legal conclusions that were particular to the case. In re A.K.G., - N.C. App. - , 841 S.E.2d 317 (2020).

Jurisdiction for Modifying Custody. - Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, - N.C. App. - , 833 S.E.2d 692 (2019).

Applied in In re H.L.A.D., 184 N.C. App. 381, 646 S.E.2d 425 (2007), aff'd, 362 N.C. 170, 655 S.E.2d 712 (2008); Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Cited in In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re J.M.D., 210 N.C. App. 420, 708 S.E.2d 167 (2011); Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Due Process. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I, § 19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).

Refusal to Permit Evaluation. - Respondent's refusal to permit the Child Mental Health Evaluation of his two sons based, in part, upon his religious beliefs was not constitutionally protected and did not afford him a lawful excuse for his interference with the investigation by the Department of Social Services. In re Browning, 124 N.C. App. 190, 476 S.E.2d 465 (1996).

Family Privacy and Integrity. - State statutes granting authority to the Department of Social Services to prevent the abuse or neglect of children take into account families' fundamental interest in family privacy and integrity. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Report Did Not Constitute Report of Abuse, Neglect, or Dependency - Anonymous call, reporting a naked child two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; one of the initial responsibilities of any department of social services was to screen a report for an ultimate determination of whether to investigate further, as not all reports constituted abuse, neglect, or dependency. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).

Department of Social Services Is Not Law Enforcement. - Defendant was not denied due process by a long pre-indictment delay because any purported delay on the part of the Department of Social Services (DSS) could not carry defendant's burden of showing any intentional act on the part of the State to impair defendant's ability to defend himself or to gain tactical advantage over him; DSS is not a law enforcement agency, and it does not prosecute criminal cases. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53 (2009).

Department's Failure to Investigate All Potential Causes of Injuries - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Department's Failure to Investigate All Potential Causes of Injuries - Department did not interview all children residing in the home and could not have diligently investigated all potential causes of one child's injuries; therefore, the department failed to make reasonable efforts to promptly reunify the parents with the minor children. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Applied in In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).

Cited in In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001); In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867 (2004).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered under former Chapter 7A.

Investigation of Abuse and Neglect at Day-Care Facilities. - Former G.S. 7A-452 requires county departments of social services to investigate reports of child abuse and child neglect at day-care facilities and day-care plans (now "child day care facilities"). See opinion of Attorney General to Mr. J. Randolph Riley, District Attorney, 51 N.C.A.G. 6 (1981).

Protection of Minor's Rights. - Although a minor cannot obtain legal representation without the consent of the legally responsible person, the rights of the child can be adequately protected. The Department of Social Services can conduct an investigation of the legally responsible person pursuant to former G.S. 7A-542 et seq., the guardian ad litem program can provide additional support for abused, neglected, or dependent juveniles, including legal support and, a minor receives representation for the commitment proceedings by virtue of G.S. 122C-224.1 and 122C-270. See opinion of Attorney General to C. Robin Britt, Sr., Secretary, Department of Human Resources, - N.C.A.G. - (December 20, 1995).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Former G.S. 7A-543 (see now this section) makes no exceptions for extenuating circumstances in reporting suspected child abuse. White v. North Carolina State Bd. of Exmrs. of Practicing Psychologists, 97 N.C. App. 144, 388 S.E.2d 148, cert. denied, 326 N.C. 601, 393 S.E.2d 891 (1990).

The report referred to in former G.S. 7A-550 was clearly an initial report of child abuse, as specified in former G.S. 7A-544 (see now this section), which is to be made to the Director of the Department of Social Services. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Immunity Under Former G.S. 7A-550. - In an action for malicious prosecution, defamation, intentional infliction of emotional distress, and negligence brought by a substitute teacher against a school system, the school system was held not liable for a principal's reporting student complaints to the Department of Social Services as directed by G.S. 115C-400; evidence established that the principal's reports were an accurate representation of the student's complaints, and the principal clearly acted in good faith. Davis v. Durham City Schools, 91 N.C. App. 520, 372 S.E.2d 318 (1988).

Statutory Good Faith Presumption Shields Reporter from Slander Per Se Action. - Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff's description of retaliatory motives for defendant's report failed to rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of this section and G.S. 7B-309 which together provide immunity not merely conditional upon proof of good faith, but a "good faith" immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000).

Statement Not Privileged. - Wife's statements to persons alleging that the husband had sexual relations with the family dog were not privileged under G.S. 7B-301 which concerned the abuse or neglect of children. Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003).

Public Duty Doctrine Inapplicable. - A school resource officer, who allegedly knew that a teacher was facilitating sexual liaisons between a 14-year-old girl and an 18-year-old boy, was not required, nor was he permitted, to weigh the safety interests of the public when he decided not to report the boy's possible statutory rape of the girl or the teacher's sexual exploitation of the girl and boy - rather, his duty to report abuse was imposed by statute and involved no deliberation or discretionary consideration; thus, his failure to report known child abuse was outside the scope of conduct generally associated with law enforcement and the public duty doctrine did not bar the claim. Smith v. Jackson County Bd. of Educ., 168 N.C. App. 452, 608 S.E.2d 399 (2005).

Abuse by Teacher. - Abuse by a teacher does not fall under the mandatory reporting duty. Ostwalt v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603 (W.D.N.C. 2008).

Investigator Had No Duty to Report Abuse by Teacher. - Negligent infliction of emotional distress claim filed against a law enforcement investigator who failed to report to the department of social services that a middle school teacher was engaging in inappropriate contact with students was barred by the public duty doctrine because the investigator did not have a duty under G.S. 7B-101 and G.S. 7B-301 to report abuse by a teacher and the special relationship exception did not apply given that the investigator was not present in the middle school on a day-to-day basis and did not have a direct relationship with students. Collum v. Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 598 (W.D.N.C. 2008).

Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010); In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).

Cited in Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001); In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299 (2006); Lueallen v. Lueallen, 249 N.C. App. 292, 790 S.E.2d 690 (2016).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Purpose of Section. - One of the specific purposes of former G.S. 7A-544 (see now this section) was the protection of minors from harm. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Violation of former G.S. 7A-544 (see now this section) could give rise to an action for negligence. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Qualified Immunity for Department of Social Services Employees. - Employees of the Department of Social Services were entitled to qualified immunity in plaintiffs' action alleging a violation of plaintiffs' family privacy rights, where plaintiffs failed to establish that the employees acted outside of the authority granted them by this section, or so vigorously intruded into plaintiffs' family as to infringe their family privacy rights. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Public Duty Doctrine Not Extended to Department of Social Services. - Court of appeals declined to extend the public duty doctrine to cover a county, the county department of social services (DSS), DSS supervisory employees, and social workers because the home assessment DSS was required to perform under G.S. 7B-302 was different from the mandatory statutory requirements of state agencies to protect the public in general and law enforcement departments who exercised a general duty to protect the public at large. Christmas v. Cabarrus County, 192 N.C. App. 227, 664 S.E.2d 649 (2008), review denied, 363 N.C. 372, 678 S.E.2d 234 (2009).

Family Privacy and Integrity. - State statutes granting authority to the Department of Social Services to prevent the abuse or neglect of children take into account families' fundamental interest in family privacy and integrity. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Department of Social Services employee did not act outside of the authority conferred on her by statute, or violate plaintiffs' rights to family privacy and integrity, by placing child in foster home or making telephone calls seeking information about child, after receiving reports that child was beaten by her father or otherwise abused. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Physical Entry Into Home. - The statute does not require physical entry into the home of a child who is the subject of an investigation; thus, where a social worker personally drives to the home and seeks to speak with the children in person but does not seek to enter the home, such constitutes "a visit to the place where the juvenile resides." In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001).

Length of Investigation Did Not Violate Family's Privacy Rights. - Length of investigation by Department of Social Services Employee did not violate family's rights to privacy, where employee was required to extend his investigation beyond the allegations of the initial complaint alleging abuse by the many factors which suggested abuse may have occurred. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Investigation Not Revealing Abuse or Neglect. - Trial court lacked subject matter jurisdiction to enter orders finding the mother's four minor children to be abused an neglected after the county social services department of the neighboring county, due to a conflict the county social services department had, conducted an investigation and found that allegations of abuse and neglect by the mother's church and the caretaker of the children were unfounded; once an official finding that no abuse and neglect had occurred, the trial court lost the authority to declare that it had occurred and to determine that the four minor children should be removed from the custody of the caretaker. In re S.D.A., 170 N.C. App. 354, 612 S.E.2d 362 (2005).

Insufficient Evidence of Neglect to Trigger Investigative Requirements - Anonymous call, reporting a naked child, two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, so the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; there was no evidence of a pattern of a lack of supervision or other credible evidence that indicated a serious failing by the parents, and there was not sufficient evidence of neglect to trigger the investigative requirements of G.S. 7B-302. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).

Investigation Alone Insufficient for Entry of Protective Order. - Domestic violence protective order entered against a father pursuant to G.S. 50B-3 was erroneous because there was no competent evidence that the father had placed a member of the mother's family in fear of (1) imminent serious bodily injury or (2) continued harassment that rose to such a level as to inflict substantial emotional distress; the fact that there was an investigation by the Department of Social Service was not relevant where there was no evidence presented regarding what any alleged investigation revealed. The director of Department of Social Service was required to investigate any report of abuse, neglect, or dependency pursuant to G.S. 7B-302(a). Burress v. Burress, 195 N.C. App. 447, 672 S.E.2d 732 (2009).

For case reversing summary judgment in favor of defendants county and social worker as to their tort liability in failing to protect minors from harm, see Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017); In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).

Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).

Opinions of Attorney General

Consent to Drug Test. - A social worker conducting a child protective services assessment can legally ask a parent or caretaker suspected of substance abuse to consent to a urine screen. See opinion of Attorney General to Ms. Pheon E. Beal, Director, Division of Social Services, 2003 N.C.A.G. 8 (9/12/03).

CASE NOTES

Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.

Lawful Excuse. - The "lawful excuse" provision in subsection (c) does not permit parents to interfere with or obstruct a child neglect or abuse investigation on Fourth Amendment grounds where neither a search nor a seizure is involved. In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001).

Statutory Investigative Mandate Not Properly Invoked Against Parents - Anonymous call, reporting a naked child, two years of age, unsupervised in a driveway, did not, standing alone, constitute a report of abuse, neglect, or dependency, and, therefore, the statutory investigative mandate was not properly invoked against the parents of the child that refused to let a caseworker privately interview the child or the child's siblings; there was no evidence of a pattern of a lack of supervision or other credible evidence that indicated a serious failing by the parents. In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003).

Purpose of Hearing. - The purpose of a hearing under subsection (c) is to determine whether the respondents have obstructed or interfered with an investigation without lawful excuse, not to determine whether the underlying incident which led to the allegation of neglect or abuse actually involved neglect or abuse. In re Stumbo, 143 N.C. App. 375, 547 S.E.2d 451 (2001).

Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Damages and Attorney's Fees Not Recoverable. - United States District Court found no provision in former G.S. 7A-544.1 that would allow the plaintiffs to seek damages or attorneys' fees from the Department of Social Services in Obstruction Petition proceedings. Renn ex rel. Renn v. Garrison, 845 F. Supp. 1127 (E.D.N.C. 1994).

Refusal to Permit Evaluation. - Respondent's refusal to permit the Child Mental Health Evaluation of his two sons based, in part, upon his religious beliefs was not constitutionally protected and did not afford him a lawful excuse for his interference with the investigation by the Department of Social Services. In re Browning, 124 N.C. App. 190, 476 S.E.2d 465 (1996).

§ 7B-304: Repealed by Session Laws 2003, c. 140, s. 1, effective June 4, 2003.

CASE NOTES

Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

When Right to Counsel Attaches. - The trial court and the Court of Appeals erred in a prosecution for first-degree statutory sexual offense and two counts of felonious child abuse by suppressing defendant's incriminating statement to officers as being taken in violation of the Sixth Amendment to the United States Constitution. The filing of a petition alleging abuse and neglect commences a civil proceeding, and by its terms, the Sixth Amendment applies only to criminal cases. The Supreme Court could not say, as did the Court of Appeals, that the civil and criminal proceedings were so intertwined that the commencement of the civil proceeding triggered the protection involved in a criminal case. State v. Adams, 345 N.C. 745, 483 S.E.2d 156 (1997).

Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).

CASE NOTES

Editor's Note. - One of the following cases was decided prior to the enactment of this Chapter.

Social Worker's Role Changed to Agent of State. - In a case involving crimes against child victim where a social worker went beyond merely fulfilling her role as the victim's social worker and began working with the sheriff's department on the case prior to interviewing defendant, the social worker's role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant's motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, appeal dismissed, 333 N.C. 463, 427 S.E.2d 626 (1993).

Cited in State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53 (2009).

CASE NOTES

Editor's Note. - The following case was decided prior to the enactment of this Chapter.

The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code (formerly G.S. 7A-516 et seq. [see now G.S. 7B-100 et seq.]). In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Applied in In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).

CASE NOTES

Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.

Intent of Section. - Former G.S. 7A-550 (see now this section) was intended to encourage citizens to report suspected instances of child abuse to the Director of the Department of Social Services without fear of potential liability if the report was made in good faith. It has no application to employees of DSS in the performance of their official duties. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Scope of Immunity. - When suspected child abuse occurs in a public school classroom, a report made in good faith by the principal of the school to his or her superior who is responsible for school personnel would clearly fall within the scope of the immunity contemplated by the statute. Davis v. Durham City Schools, 91 N.C. App. 520, 372 S.E.2d 318 (1988).

Statutory Good Faith Presumption Shields Reporter from Slander Per Se Action. - Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff's description of retaliatory motives for defendant's report failed to rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of G.S. 7B-301 and this section which together provide immunity not merely conditional upon proof of good faith, but a "good faith" immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000).

The report referred to in this section is clearly an initial report of child abuse, as specified in former G.S. 7A-543 (see now G.S. 7B-301), which is to be made to the Director of the Department of Social Services. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, cert. denied, 322 N.C. 834, 371 S.E.2d 275 (1988).

Malicious Actions. - Where plaintiff alleged that defendant made false accusations of child abuse and neglect and injury and forecast evidence that the defendant knew the report to be false, a genuine issue of material fact existed - particularly as to whether the defendant acted with malice and therefore lost the immunity accorded by former 7A-550 - to withstand summary judgment in a slander per se cause of action. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710 (1999), cert. denied, 351 N.C. 187, 541 S.E.2d 728 (1999).

Trial court correctly held that the wife's statements to the social services department that the husband molested her two sons were made with actual malice, and therefore negated any defense of privilege under G.S. 7B-309. Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760 (2002), cert. denied, 356 N.C. 673, 577 S.E.2d 120 (2003).

CASE NOTES

Editor's Note. - Most of the following cases were decided prior to the enactment of this Chapter.

G.S. 8-53.1 is read in pari materia with the Juvenile Code, and in particular with former G.S. 7A-551 (see now this section). State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983); State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Privilege Not Available in Child Abuse Cases. - By virtue of G.S. 8-53.1 and former G.S. 7A-551 (see now this section), the physician-patient privilege, created by G.S. 8-53 is not available in cases involving child abuse. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

Under G.S. 7B-310, a trial court in a child neglect case did not err in admitting certain evidence in violation of a mother's psychologist-patient privilege; that privilege did not operate to bar relevant evidence in an action that concerned the abuse or neglect of a child. In re K.D., 178 N.C. App. 322, 631 S.E.2d 150 (2006).

Public Duty Doctrine Inapplicable. - A school resource officer, who allegedly knew that a teacher was facilitating sexual liaisons between a 14-year-old girl and an 18-year-old boy, was not required, nor was he permitted, to weigh the safety interests of the public when he decided not to report the boy's possible statutory rape of the girl or the teacher's sexual exploitation of the girl and boy - rather, his duty to report abuse was imposed by statute and involved no deliberation or discretionary consideration; thus, his failure to report known child abuse was outside the scope of conduct generally associated with law enforcement and the public duty doctrine did not bar the claim. Smith v. Jackson County Bd. of Educ., 168 N.C. App. 452, 608 S.E.2d 399 (2005).

G.S. 8-53.1 and former G.S. 7A-551 (see now this section) plainly facilitate the prosecution of child abusers, without regard to whether the medical information was obtained before or after the accused was officially charged with a crime. State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

Evidence That Defendant in Sexual Abuse Case Had Sexually Transmittable Disease. - Unequivocal evidence that a seven-year-old girl had been sexually abused would invoke former G.S. 7A-551 (see now this section) and G.S. 8-53.1. Therefore, medical records maintained by a county health department, revealing that defendant had been treated for gonorrhea, were admissible as evidence with regard to the cause or source of the child's disease. State v. Efird, 309 N.C. 802, 309 S.E.2d 228 (1983).

Any privilege which defendant, who sought treatment of a sexually transmittable disease after he had been charged with sexual crimes against his children and taken into custody, might have been entitled to by G.S. 8-53 was nullified by G.S. 8-53.1 and former G.S. 7A-551 (see now this section). State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987).

CASE NOTES

Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I, § 19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).

Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Placement of Name on Responsible Individuals List Proper. - Trial court did not err in placing a stepmother's name on the Responsible Individuals List (RIL) because the child's testimony tended to establish that when the stepmother struck him in the head it was intentional; because the name of an individual identified as a responsible individual had to be placed on the RIL after it was determined the individual was a responsible individual, the statute required the trial court to conclude that the stepmother's name had to be placed on the RIL. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Cited in In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013); In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015); Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462 (2017).

§§ 7B-312 through 7B-319: Reserved for future codification purposes.

CASE NOTES

Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I, § 19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).

Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Time Limitations. - District court properly concluding a petitioner's name should not be included on the Responsible Individuals List because Department of Social Services' multi-year delay - almost four years - even well beyond the statute of limitations to prosecute for a misdemeanor criminal charge, deprived the petitioner of his ability to mount a defense to preserve his protected liberty interest. In re Harris, 265 N.C. App. 194, 828 S.E.2d 559 (2019).

Right to Jury Trial. - While the trial court's denial of petitioner's motion for a jury trial was immediately reviewable because it affected a substantial right, petitioner had no right to a jury trial as to his placement on the responsible individuals list because the proceeding was unknown at the common law and thus, not subject to the constitutional right to a jury trial. In re Duncan, 262 N.C. App. 395, 822 S.E.2d 467 (2018).

Cited in In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015).

CASE NOTES

Constitutionality. - Statutory procedures under G.S. 7B-300 to G.S. 7B-311 for placing an individual's name on the Responsible Individuals List of those determined to have committed child abuse or neglect violated an accused individual's procedural due process rights under N.C. Const. art. I, § 19, by not providing a meaningful opportunity to be heard before being placed on the Responsible Individuals List. The court determined that a pre-deprivation hearing was necessary before placement on the Responsible Individuals List, at which the accusations of abuse or neglect must be proven by a preponderance of the evidence. In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).

Jurisdiction. - Trial court had jurisdiction to hear a stepmother's petition for judicial review of the order finding that she was a responsible individual and placing her name on the Responsible Individuals List (RIL) because the child was 17 years old at the time the stepmother struck him, and thus, her name was properly added to the RIL; the child's medical records contained numerous instances where his birthday was shown, and the stepmother did not argue that the birthdate was incorrect. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Cited in In re F.C.D., 244 N.C. App. 243, 780 S.E.2d 214 (2015); Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462 (2017).

CASE NOTES

Applied in In re W.B.M., 202 N.C. App. 606, 690 S.E.2d 41 (2010).

§§ 7B-325 through 7B-399: Reserved for future codification purposes.

CASE NOTES

Standing. - County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

Court Not Limited To Only Circumstances Occurring Within Its District. - District court, in adjudicating a child neglected, was not limited to considering only those circumstances occurring within its district. To hold otherwise would have allowed abusive and neglectful parents to avoid court intervention by simply moving from county to county. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Cited in In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1 (2004); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re M.B., 179 N.C. App. 572, 635 S.E.2d 8 (2006).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudging a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).

When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

Trial court lacked subject matter jurisdiction after periodic judicial reviews were discontinued to adjudicate juveniles as abused, neglected, or dependent when a director of social services (DSS) sought court action based on a new report of abuse, neglect, or dependency without the prior filing of a verified petition by the DSS. Moreover, the trial court could not proceed directly to a dispositional hearing without first conducting an adjudicatory hearing and actually adjudicating the juveniles as abused, neglected, or dependent. In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Commencement of Proceedings. - Pursuant to G.S. 7B-401 and G.S. 7B-405, a juvenile abuse, neglect, or dependency action is a creature of statute and "is commenced by the filing of a petition," which constitutes the initial pleading in such actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Cited in In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007); In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).

CASE NOTES

Because the language of subsection (a) identifies "a county director of social services" as the proper petitioner in a juvenile adjudication action rather than "the director" or similar language singling out particular directors, the legislature did not intend to limit the class of parties who may invoke the court's subject matter jurisdiction in juvenile adjudication actions to only directors of county departments of social services in the county where the juvenile at issue resides or is found. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

Standing. - County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

General Assembly's use of the indefinite article, "a" before "county director of social services" belies the notion that the provision limits standing to any one county director of social services. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

Testimony Properly Considered. - Because the trial court was statutorily required to hear testimony from the foster parents and any person who would aid in its review, its decision to permit the foster parents and their counsel to participate in the permanency planning proceedings was not manifestly unsupported by reason; the trial court did not allow the foster parents to intervene as parties but permitted their counsel to facilitate their testimony on direct examination, which was information it was required to hear. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Required Findings Not Made. - Trial court erred by, in effect, removing custodial grandparents from a juvenile proceeding because (1) the grandparents were mandatory parties to the proceeding, and the court did not enter the findings statutorily required when discharging a party from a proceeding. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).

Cited in In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Applied in In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).

CASE NOTES

Proper Allegation of First Degree Murder. - Petition alleging that "juvenile was delinquent as defined by former G.S. 7A-517(12) (see now G.S. 7B-1501) in that in Durham County and on or about December 30, 1997, the above named juvenile unlawfully, willfully and feloniously did of malice aforethought kill and murder victim" properly alleged first degree murder under G.S. 14-17, satisfied former G.S. 7A-560 (see now this section requirements of), and made transfer of case to Superior Court mandatory under former G.S.7A-608 (see now G.S. 7B-2200). In re K.R.B., 134 N.C. App. 328, 517 S.E.2d 200 (1999), cert. denied, 351 N.C. 188, 541 S.E.2d 713 (1999).

Failure to List Juvenile's Address. - In dependency proceedings brought under G.S. 7B-101, the failure of a petition to list an allegedly dependent juvenile's address pursuant to G.S. 7B-402 did not deprive the trial court of jurisdiction because this was "routine clerical information," and the trial court could easily determine from information provided in the petition whether the court had subject matter jurisdiction over the case. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Cited in In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

The primary purpose to be served by signature and verification is to obtain the written and sworn statement of the facts alleged in an official and authoritative form that may be used for any lawful purpose, either in or out of a court of law. In re Green, 67 N.C. App. 501, 313 S.E.2d 193 (1984).

The Juvenile Code requirements that the juvenile delinquency petition be signed and verified are essential to both the validity of the petition and to establishing the jurisdiction of the court. In re Green, 67 N.C. App. 501, 313 S.E.2d 193 (1984).

Verification of Petition. - Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).

Trial court lacked jurisdiction to enter a review order in a neglect action because the juvenile petition that initiated the case was not verified as mandated by G.S. 7B-403(a); the trial court could not exercise subject matter jurisdiction in the absence of the verification, and thus the trial court's order was void ab initio. In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).

Petitions for nonsecure custody filed by DSS did not comply with G.S. 7B-403, DSS was not an agency awarded custody of the minor children by a court of competent jurisdiction, DSS did not have standing under G.S. 7B-1103(a)(3) to file the termination of parental rights petitions, and the trial court did not have subject matter jurisdiction to enter the termination orders as: (1) the petition for adjudication with respect to child one contained a "Signature of Petitioner" as the "Director of DSS by an employee" and did not contain the signature of the director under G.S. 10B-3(25); (2) DSS filed an amended petition regarding child two with no signature in the "Signature of Petitioner" space; and (3) the orders awarding DSS custody were void ab initio. In re S.E.P., 184 N.C. App. 481, 646 S.E.2d 617 (2007).

Trial court had subject matter jurisdiction over the juvenile petition filed by the caseworker even though the caseworker did not sign it and, thus, the trial court could enter its termination of parental rights order regarding the father; while the caseworker did not specifically state in the petition that the caseworker was an authorized representative of the director of the Department of Social Services, the caseworker's verification of the petition was sufficient for the trial court to exercise jurisdiction over the case. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

Failure to verify a juvenile petition as required under G.S. 7B-403 deprives the trial court of subject matter jurisdiction, and there is no meaningful basis for distinguishing between a juvenile petition and a Hague Convention on the Civil Aspects of International Child Abduction petition when it comes to the verification requirement; because of the mandatory nature of the remedy under the Hague Convention, which entails removing a child from a parent and returning the child to another country, the interests at stake have the same magnitude and the potential consequences of any error would be just as devastating as with a juvenile petition, and the failure to verify a petition filed pursuant to the Hague Convention deprives the trial court of subject matter jurisdiction over that petition. Obo v. Steven B., 201 N.C. App. 532, 687 S.E.2d 496 (2009).

Juvenile petition contained a verification that appeared facially valid, as it was signed by an authorized representative of the director of the human services department, but the signature was illegible, and the space reserved for that person's title was blank; respondent had the burden of showing that the petition was not verified before a person authorized to administer oaths, and considering the presumption of regularity that attached to the trial court's decision to exercise jurisdiction, the appellate court had no basis to conclude that the petition was not properly verified. In re N.T., 368 N.C. 705, 782 S.E.2d 502 (2016).

Representative of a local department of social services, which was acting as a state agent, was acquainted with the facts of a termination of parental rights case. Therefore, the representative's verification of the petitions alleging neglect and dependency was effective to grant jurisdiction to the trial court. In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).

Signature by District Attorney. - As long as juvenile intake counselor follows the statutory procedures before the signing of the petition, and the assistant district attorney does not encroach upon the important role of the intake counselor, the assistant district attorney may sign the petition as complainant. In re Stowe, 118 N.C. App. 662, 456 S.E.2d 336 (1995).

Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007); In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

CASE NOTES

Affidavit Inadmissible on Appeal. - Department of social services' motion to amend an appellate record to include a magistrate's affidavit averring that the magistrate verified a petition was denied because, inter alia, neither the motion to amend nor the record on appeal showed the chief district judge authorized the magistrate to verify petitions in emergency situations, which was a necessary acknowledgement for receiving verification of an emergency petition, so the appellate court did not consider suspending the appellate rules. In re N.T., 240 N.C. App. 33, 769 S.E.2d 658 (2015).

Cited in In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

CASE NOTES

Verification of petition. - Failure of the director of a county department of social services to sign and verify before a notary, pursuant to G.S. 7B-403(a), a petition for a finding that a minor child was a neglected juvenile rendered the petition fatally deficient and inoperative to invoke the subject matter jurisdiction of the trial court; because there was no evidence in the record suggesting later filings sufficient to invoke subject matter jurisdiction as to the lower court's subsequent order from a review hearing, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).

Trial court had subject matter jurisdiction over a petition filed by the Department of Social Services, alleging that a mother's son was neglected because the petition was filed with the clerk's office, and the summons issued the same day to the mother was signed by a deputy clerk, stating that a petition had been filed and a nonsecure custody order had been entered; the lack of an official "filed" stamp on the petition did not require a conclusion, contrary to the other material in the record, that the petition was not filed with the clerk's office. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Trial court had subject matter jurisdiction over a petition filed by DSS, alleging that a mother's son was neglected because the petition was filed with the clerk's office, and the summons issued the same day to the mother was signed by a deputy clerk, stating that a petition had been filed and a nonsecure custody order had been entered; even if the petition was filed after the issuance of the nonsecure custody order, that fact would not deprive the district court of jurisdiction. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

County department of social services had standing to file a juvenile petition alleging that a child was a neglected and dependent juvenile because the petition was properly verified and filed by an authorized representative of "a county director of social services"; the statutory sections governing "parties" and "venue" did not mandate dismissal of the juvenile petition. In re A.P., 371 N.C. 14, 812 S.E.2d 840 (2018).

Verification Secures Subject Matter Jurisdiction. - In a juvenile dependency matter wherein the juvenile petition was eventually signed and verified by a Department of Social Services representative, the trial court gained subject matter jurisdiction and could properly act on the matter from that day forward; therefore, the trial court had authority to enter a permanency planning order. In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007).

Commencement of Proceedings. - Pursuant to G.S. 7B-401 and G.S. 7B-405, a juvenile abuse, neglect, or dependency action is a creature of statute and "is commenced by the filing of a petition," which constitutes the initial pleading in such actions. In re A.R.G., 361 N.C. 392, 646 S.E.2d 349 (2007).

Cited in In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626 (2007); In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007); In re K.J.L., 194 N.C. App. 386, 670 S.E.2d 269 (2008); In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction. - The issuance and service of process is the means by which the court obtains jurisdiction; thus, where no summons was issued, the court acquired jurisdiction over neither the persons nor the subject matter of the action, and was without authority to enter order adjudging a juvenile as neglected. In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).

Juvenile petition was filed June 11, 2004, and the summons was issued four days later, but the summons was returned by the sheriff on June 30, 2004, unserved; on July 8, 2004, the mother attended a hearing regarding the allegations her minor child was neglected and dependent. The mother was not only present in court, but also agreed to continue the matter until July 22, 2004, and there was no evidence that the mother raised any objection at that hearing regarding insufficient service of process or personal jurisdiction; thus, her actions amounted to waiver of her right to challenge the trial court's exercise of personal jurisdiction over her regardless of whether she was served with a juvenile summons in compliance with G.S. 1A-1-4. In re A.J.M., 177 N.C. App. 745, 630 S.E.2d 33 (2006).

Failure to serve the children with a petition alleging abuse and neglect could not be basis for lack of subject matter jurisdiction because only a parent, guardian, or caretaker was required to be served. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).

Although a summons in a juvenile neglect proceeding was not properly signed pursuant to G.S. 7B-406 and 1A-1, N.C. R. Civ. P. 4(b), only personal jurisdiction, rather than subject matter jurisdiction, was implicated, and where the parents appeared in the neglect proceeding and they failed to object thereto, such defense was waived; a termination of parental rights in reliance on the neglect order was valid. In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (June 18, 2009).

Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Trial Court Is Without Jurisdiction Where No Notice Was Served. - A trial court did not have jurisdiction to enter orders in a juvenile delinquency proceeding where no summons, petition or other notice was ever served on the juvenile or her parents, guardian or custodian prior to any of the hearings. In re McAllister, 14 N.C. App. 614, 188 S.E.2d 723 (1972).

Statement on return that service was accomplished implies that it was done in the manner required by law. In re Leggett, 67 N.C. App. 745, 314 S.E.2d 144 (1984).

It is the service of summons, rather than the return of the officer, that confers jurisdiction. In re Leggett, 67 N.C. App. 745, 314 S.E.2d 144 (1984); In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Failure of Record to Show Time and Manner of Service. - Failure of a record of a juvenile delinquency proceeding to show the exact time and manner of service of the summons and petition upon the juvenile and his parents was not fatal where the record affirmatively showed that the juvenile and his mother were in fact accorded sufficient notice of the hearing at which he was adjudicated delinquent to provide adequate opportunity to prepare, that at least seven days prior to the hearing he had been represented by privately employed counsel, and that he was represented by such counsel at the hearing, which had already been once continued. In re Collins, 12 N.C. App. 142, 182 S.E.2d 662 (1971).

Service by Publication. - Notice to the father by publication of a neglect proceeding against his daughter was proper since the agency's affidavit stated that the father could not be found by a diligent effort because he was a transient person with no permanent residence. In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002).

Service on Only One Parent Required. - In order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them or the guardian or custodian. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610, 257 S.E.2d 223 (1979).

In order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

U.S. Const., Amend. XIV did not proscribe a finding of dependency binding upon the mother of a child so that his custody could be placed with a suitable person, where the mother was not served with any notice before the first hearing, but where the facts showed that his father was served with notice, and it was found as a fact that the mother's address was unknown and no evidence to dispute the finding was in the record. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610, 257 S.E.2d 223 (1979).

Jurisdiction Acquired by Service on One Parent. - Juvenile court, which acquired jurisdiction over the subject matter when the summons was served upon mother, although it was not served upon father as required by this section, had the authority to decide the issue of neglect and dependency of three children. In re Arends, 88 N.C. App. 550, 364 S.E.2d 169 (1988).

Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002); In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (June 4, 2013).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Custody Did Not Violate Family Rights to Privacy and Integrity. - Department of Social Services employee did not act outside of the authority conferred on her by statute, or violate plaintiffs' rights to family privacy and integrity, by placing child in foster home or making telephone calls seeking information about child, after receiving reports that child was beaten by her father or otherwise abused. Renn v. Garrison, 100 F.3d 344 (4th Cir. 1996).

Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).

Cited in Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 576 S.E.2d 372 (2003); In re Q.V., 164 N.C. App. 737, 596 S.E.2d 867 (2004); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007); In re C.J.H., 240 N.C. App. 489, 772 S.E.2d 82 (2015).

CASE NOTES

Jurisdiction. - Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Proper order of custody existed prior to a trial court's entering its adjudication and dispositional order that a mother's son was neglected because the trial court entered an order stating that pending further hearings, the son would remain or be placed in the non-secure custody of the county Department of Social Services (DSS); assuming, without deciding, that a magistrate lacked authority to enter a nonsecure custody order, the mother cited no authority suggesting that such a lack of authority stripped the trial court of subject matter jurisdiction over the petition filed by DSS, alleging that her son was neglected. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).

Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re C.W., 182 N.C. App. 214, 641 S.E.2d 725 (2007).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction Required. - Subdivision (d) of this section requires that the trial court have jurisdiction before exercising the powers granted thereunder. In re Transp. of Juveniles, 102 N.C. App. 806, 403 S.E.2d 557 (1991).

Trial court had authority pursuant to G.S. 7B-200(a)(6) to issue an ex parte order directing a mother to cease interference with a department's juvenile investigation concerning her children; however, where no request for nonsecure custody was presented and no petition alleging that the children were neglected was filed, the trial court lacked jurisdiction to award custody of the children to their father. In re K.C.G., 171 N.C. App. 488, 615 S.E.2d 76 (2005).

Standard of Proof for Termination and Removal Distinguished. - There is a substantive difference between the quantum of adequate proof of neglect and dependency for purposes of termination and for purposes of removal. The most significant difference is that while parental rights may not be terminated for threatened future harm, the Department of Social Services may obtain temporary custody of a child when there is a risk of neglect in the future. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

The task at the temporary custody or removal stage is to determine whether the child is exposed to a substantial risk of physical injury because the parent is unable to provide adequate protection. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

Findings of Fact Required. - Trial court erred in concluding that child was dependent there were no findings of fact concerning the mother's ability to provide care or supervision for the child or that the mother lacked an alternative child care arrangement to support the court's conclusion that the child was dependent. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).

When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

Removal of Child Upheld. - Evidence held sufficient to show that seven-year old child was exposed to a substantial risk of physical injury because of her mother's inability to maintain secure living arrangements for her, so as to permit the Department of Social Services to remove her from her mother's custody until such accommodations could be provided. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

CASE NOTES

Order sufficient despite form not being completely filled out. - When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

Cited in In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

The trial court had jurisdiction to enter a temporary nonsecure custody order placing children who had been visiting noncustodial parent in North Carolina, but whose "home state" under the former UCCJA was Iowa, with DSS where there was a reasonable factual basis to believe that one child had been sexually abused and hospitalized for depression and the other child had been physically abused and was hospitalized for stress disorder, pending application to home state to determine if Iowa was willing to exercise jurisdiction. In re Van Kooten, 126 N.C. App. 764, 487 S.E.2d 160 (1997), appeal dismissed, 347 N.C. 576, 502 S.E.2d 618 (1998).

Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to G.S. 7B-903(a)(2)c, this was error because, inter alia, G.S. 7B-505 required the trial court, in entering a nonsecure custody order, to first consider the child's placement with a relative; G.S. 7B-506(h) continued this requirement at each hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

The determination of "reasonable efforts" under former G.S. 7A-577(h) is a conclusion of law because it requires the exercise of judgment; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Court's Jurisdiction. - County department of social services (DSS) had no right to appeal the trial court's denial of the court's motion to review the foster care board rate provisions of a nonsecure custody order under G.S. 7B-1001(a)(1), which permitted appeal from any order finding absence of jurisdiction, as the trial court never ruled that the court lacked jurisdiction to decide DSS's motion. Under G.S. 7B-506(d), 7B-200(a), the trial court clearly had jurisdiction to enter a nonsecure custody order; and, assuming arguendo that the court erred in the scope of the court's order for board payments to foster parents, this did not necessarily deprive the court of jurisdiction. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917 (2008).

When a trial court did not completely fill out form orders granting an agency temporary nonsecure custody of a mother's children, by failing to specify the statutory grounds for nonsecure custody in G.S. 7B-503, the court was not deprived of subject matter jurisdiction to subsequently enter orders terminating the mother's parental rights to the children because (1) the court generally had jurisdiction over this type of case, under G.S. 7B-200(a)(4) and 7B-201(a), (2) the court acquired jurisdiction over the children and the mother when an agency filed petitions under G.S. 7B-401 alleging the children were neglected and dependent juveniles, as defined in G.S. 7B-101(9) and (15), pursuant to G.S. 7B-405, and (3) the failure to fully complete the form orders did not deprive the court of subject matter jurisdiction, as it was not alleged that the court did not observe the criteria for such orders in G.S. 7B-504 and 7B-506(a). In re T.P., 197 N.C. App. 723, 678 S.E.2d 781 (2009).

Court's Taking Notice of Orders. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Reasonable Efforts Shown. - The DSS made reasonable efforts to prevent child's removal from her home where the DSS entered into four different protection plans with the mother regarding the care and protection of the child in an effort by DSS to stabilize the child's home environment and protect her from violent individuals and drugs, and to encourage the mother to apply for food stamps, AFDC, and Medicaid. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Agency Had Standing Under Nonsecure Custody Order. - DSS had standing to file a termination of parental rights petition as it had been granted indefinite custody of a child under a nonsecure custody order issued under G.S. 7B-506(a), and G.S. 7B-1103(a)(3) did not limit standing to parties granted custody by an order entered pursuant to G.S. 7B-905, but required only that DSS be granted custody by a court of competent jurisdiction. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Hearing on five petitions alleging abuse, neglect, and/or dependency was clearly denominated a hearing to determine the need for continued custody. The judge therefore had the discretion to either continue nonsecure custody or to return the children to their home; he did not have the authority to dismiss the petitions because in so doing he made an unauthorized determination of the merits of the case. There is no express statutory authority allowing the judge to dismiss the petitions at a five-day hearing. In re Guarante, 109 N.C. App. 598, 427 S.E.2d 883 (1993).

Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to G.S. 7B-903(a)(2)c, this was error because, inter alia, G.S. 7B-505 required the trial court, in entering a nonsecure custody order, to first consider the child's placement with a relative; G.S. 7B-506(h) continued this requirement at each hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

No Prejudice from Delay of Hearing for Continued Nonsecure Custody. - Mother's claim that a trial court violated G.S. 7B-506(a) by failing to hold a hearing for continued nonsecure custody within seven calendar days after entry of a nonsecure custody order was overruled because although the initial nonsecure custody order was entered on 18 June 2007 and was set to expire on 25 June 2007, and the trial court did not conduct a hearing on the need for continued nonsecure custody until 27 June 2007, the mother did not make any argument as to how she was prejudiced by the two-day delay. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Cited in In re Poole, 151 N.C. App. 472, 568 S.E.2d 200 (2002); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015).

CASE NOTES

Applicability. - When a trial court granted children's custody to their grandparents and released department of social services from further responsibility, G.S. 7B-507(a), which requires findings as to the agency's obligation of reasonable efforts to eliminate the need for the children's placement in the agency's custody, did not apply. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003).

Award of guardianship did not cease social services department's duty to continue reunification efforts with the mother because the dispositional order did not make a guardianship the permanent plan. Therefore, the trial court was not required to make findings pursuant to G. S. 7B-507(b). In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Indian Child Welfare Act (ICWA), 25 U.S.C.S. § 1901 et seq., did not bar a trial court from finding, pursuant to G.S. 7B-507(b)(1), that reasonable efforts to reunify a father and child were not warranted because ICWA did not require reunification efforts to persist if such efforts were clearly inconsistent with a juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time, since ICWA shared the primary aim of the Adoption and Safe Families Act, 42 U.S.C.S. § 670 et seq., and North Carolina's Juvenile Code to protect and serve the best interests of children. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

Indian Child Welfare Act (ICWA), 25 U.S.C.S. § 1901 et seq., did not bar a trial court from finding, pursuant to G.S. 7B-507(b)(1), that reasonable efforts to reunify a father and child were not warranted because the language of 25 U.S.C.S. § 1912(d) did not prohibit ceasing reunification efforts before a proceeding to terminate parental rights, as the subsection only required a finding that "active efforts" to prevent the disruption of the Indian family "proved unsuccessful." In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

Notice Requirements. - Trial court erred in authorizing a permanent plan for a child at the disposition hearing on a dependency petition, seemingly without the required statutory notice to respondent. On remand, the trial court was required to provide the statutory notice. In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).

Parents waived their right to notice of the trial court's intent to enter a permanent plan since they did not object to the entry of a permanent plan at disposition. In re J.P., 227 N.C. App. 537, 742 S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).

Reunification Efforts Not Warranted Due to Threat of Harm to Child. - Trial court repeatedly found that the immediate threat of harm to a child outweighed the reasonable efforts to reunify him with respondent mother. Due to the severe abuse by the mother and the mother's reaction to the boyfriend's abuse, the trial court determined it was not in the best interests of the child to order reasonable efforts to reunify the child with respondent, as it was too dangerous to do so, and the trial court properly complied with G.S. 7B-507. In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).

Reunification Efforts Not Warranted at Permanency Planning Hearing. - Given its findings, the trial court, at the permanency planning hearing, had no obligation to further attempt to reunify mother and child and, indeed, had the obligation to locate permanent placement for the child outside of her home. In re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001), aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001).

Appointment of Permanent Legal Guardians in Disposition Order Held Improper. - Trial court erred in appointing permanent legal guardians in its disposition order where the mother did not have statutorily required notice that a permanent plan was being considered and the trial court did not make the findings mandated by G.S. 7B-907(b), (c), and (f) (repealed, see now G.S. 7B-906.1). In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).

Disposition Order Affirmed. - Trial court made uncontested findings, in part, that the return of the children to the parents' home would be contrary to the children's welfare and best interest because issues still existed and the children required more adequate care than parents could currently provide, and reasonable efforts were made to prevent or eliminate the need for the children's placement, and the trial court's disposition order was affirmed. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Findings Required. - In proceedings to terminate parental rights, a trial court's permanency planning order, which implicitly ceased reunification efforts between a mother and her children, did not comply with G.S. 7B-507(b) because, while the order detailed the mother's case history and her failure to complete her case plan, the order did not contain any of the findings of fact regarding the continuation or cessation of reunification efforts as required by G.S. 7B-507(b)(1). In re A.P.W., 225 N.C. App. 534, 741 S.E.2d 388 (2013), review denied, 747 S.E.2d 251, 2013 N.C. LEXIS 759 (2013).

Although a permanency planning order did not satisfy the statutory requirements, considering the order in conjunction with the termination of parental rights order satisfied the requirements because the two orders together embraced the substance of the statutory provisions requiring findings of fact that further reunification efforts would have been futile or would have been inconsistent with a juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time. In re D.C., 236 N.C. App. 287, 763 S.E.2d 314 (2014).

Insufficient Evidence to Terminate Reunification Efforts. - Order terminating efforts to reunite mother and two year old daughter and directing termination of mother's parental rights was reversed as overwhelming evidence was that mother was cooperating with the reunification plan and was making progress and only the guardian ad litem recommended reunification efforts cease. In re Eckard, 144 N.C. App. 187, 547 S.E.2d 835 (2001).

Trial court's order which changed a mother's permanency planning order from reunification efforts with her two minor children to termination of her parental rights was based on findings of fact which were deemed insufficient to support the conclusions of law, and accordingly, there was no compliance with the requirement of subsection (b) of this section, and the order was reversed; the trial court failed to make specific factual findings that efforts towards reunification with the mother would be futile or that such efforts were inconsistent with the children's health, safety, and need for a permanent home, and the findings listed were actually conclusions of law. In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003).

Trial court erred in entering a permanency order relieving an agency from reunification efforts between a father and his children; the court failed to make required findings of fact pursuant to G.S. 7B-507(b) and G.S. 7B-907(b) (repealed, see now G.S. 7B-906.1), and the evidence did not show that reunification was futile. In re Everett, 161 N.C. App. 475, 588 S.E.2d 579 (2003).

Trial court erred in terminating a mother's parental rights because it failed to make sufficient findings of fact, and did not ultimately find, as required by G.S. 7B-507(b)(1), that attempted reunification efforts would be futile, or reunification would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable time; since the trial court made findings of fact addressing the reunification efforts already made by the county department of social services and the mother's demonstrated failure to complete her case plan, but it did not link any of those findings to the two prongs set forth in G.S. 7B-507(b)(1). In re I.R.C., 214 N.C. App. 358, 714 S.E.2d 495 (2011).

Trial court erred when it ceased reunification efforts and awarded guardianship of a child to the child's foster parents because the evidence and the findings failed to support the trial court's conclusion that reunification efforts with one of the child's parents would have been futile or would have been inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013).

Trial court had an obligation to determine that efforts to reunite the child with the father would be futile before it could direct reunification efforts to cease. In re A.E.C., 239 N.C. App. 36, 768 S.E.2d 166 (2015).

Evidence Sufficient to Terminate Reunification Efforts. - Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).

In a case involving G.S. 7B-507(a) and G.S. 7B-907(c) (repealed, see now G.S. 7B-906.1), the trial court did not err in granting guardianship of the mother's three older children to the maternal aunt because the best interests of the children were paramount, and the trial court had no assurances the mother had made sufficient progress for the children to be returned to the mother's care. In re T.K., 171 N.C. App. 35, 613 S.E.2d 739 (2005).

Trial court's findings supported its conclusion that the children were dependent under G.S. 7B-101(9) because it found that the mother could not care for her children without constant assistance, and that such assistance was not available to her. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).

Trial court did not err in failing to order the local social services department to assist the mother in her reunification efforts where the evidence supported the trial court's findings that continued reunification efforts were unlikely to succeed and were not in the children's best interests. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).

Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901, G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Trial court's 17 findings supported its conclusion that further reunification efforts with the parents would be futile for purposes of G.S. 7B-507(b)(1) and (3), including that: (1) the parents were mildly mentally retarded; (2) the mother shared characteristics with parents known to abuse their children; (3) the mother failed to comply with a sibling's case plan; (4) the department of social services had offered the parents intensive case management services after the child's birth; and (5) there was a concern about the father's ability to be a primary caretaker. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Decision to cease reunification efforts and visitation was not manifestly unsupported because there was clear and convincing evidence supporting the trial court's dispositional finding that the parents failed to cooperate with various social workers when their first child was placed in protective custody, failed to fully comply with family service plans relating to the removal of their first child, did not make reasonable efforts at reunification with their first child, and did not recognize appropriate responsibility or involvement in the injuries of their first child. In re N.G., 186 N.C. App. 1, 650 S.E.2d 45 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355 (2008).

Reunification efforts were not required under G.S. 7B-507(b)(1) when a juvenile who was in foster care and who had experienced domestic abuse displayed bizarre behaviors after visiting with the juvenile's parent, because reunification was inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time; furthermore, the juvenile's bizarre behaviors coincided with the visits, and after the visits were ceased, the juvenile made significant changes for the better. In re T.R.M., 208 N.C. App. 160, 702 S.E.2d 108 (2010).

In a parental rights termination proceeding, a trial court, through processes of logical reasoning and based on the evidentiary facts before it, found the ultimate facts essential to support the conclusions of law that directed that reunification efforts cease; the necessary findings for such cessation were sufficiently made pursuant to G.S. 7B-507(b)(1). In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).

There was no abuse of discretion in a trial court's order that provided for cessation of reunification efforts between parents and their minor children pursuant to G.S. 7B-507(b)(1), as there were extensive findings regarding the father's history of domestic violence, the impact of that violence on the minor children, and the father's lack of appreciation of the effect of such violence, even after attending the available programs. In the Matter of T.J.C., 225 N.C. App. 556, 738 S.E.2d 759 (2013), review denied, 743 S.E.2d 194, 2013 N.C. LEXIS 538 (2013), review denied, 2013 N.C. LEXIS 631 (2013).

Trial court's decision to cease reunification efforts and award guardianship of a child to the paternal grandparents was not done in error under G.S. 7B-507(b)(1) because the court's findings established that verbal aggression and significant conflict between the parents was continuing, including two significant episodes only three months before the hearing, and the parents had not successfully engaged in couples therapy. The conflict and domestic violence continued to have a detrimental effect on the child's physical and emotional well-being. In re A.Y., 225 N.C. App. 29, 737 S.E.2d 160 (2013), review denied 367 N.C. 235, 748 S.E.2d 539, 2013 N.C. LEXIS 1009 (2013).

Trial court's decision to cease reunification efforts with respect to a mother's children was supported by its findings, which were not challenged on appeal, that reunification was not in their best interest since their parents had not addressed the issue of child abuse. In re J.P., - N.C. App. - , 745 S.E.2d 917 (Aug. 6, 2013).

Trial court properly found further efforts to reunify a mother's children with the mother were unwarranted because uncontested findings of fact supported the court's conclusions that reunification efforts were inconsistent with the children's health, safety and need for a permanent home within a reasonable period of time and were not required. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Trial court's finding that a mother and her husband were not addressing the husband's abuse of one child by remaining together although there was a no-contact order between the husband and child were linked to and supported the trial court's conclusion that reunification efforts should cease as required by G.S. 7B-507(b). In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).

Trial court did not err in entering an order ceasing reunification because the findings in the cease reunification order standing alone suggested that reunification efforts would be futile; the order found unchallenged that the mother failed to attend visits or complete her case plan, had pending criminal charges, and had not been participating in drug screens, and as such, the children would be unable to go home within six months. In re H.D., 239 N.C. App. 318, 768 S.E.2d 860 (2015).

Findings Sufficient to Terminate Reunification Efforts. - Trial court properly related its findings that child two could not be placed with her mother since she resided with the father and he had a no contact order with child two, that the father had pled guilty to child abuse and had violated his probation and that a permanent plan of custody was in the children's best interests to a conclusion of law that specifically set forth the basis for ceasing reunification efforts. In re J.P., 227 N.C. App. 537, 742 S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).

Trial court's order embraced the substance of the statutory provisions requiring findings of fact that further reunification efforts would be futile or inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time. In re L.M.T., 367 N.C. 165, 752 S.E.2d 453 (2013).

Trial court did not err in ordering that reunification efforts with the mother cease because they were inconsistent with the child's health, safety and need for a safe, permanent home as the mother had not shown sustained parenting improvements during the last two years; she had sporadic visitation attendance during the last two years; a social worker testified that the mother had been unable to consistently demonstrate skills learned in parenting classes during her interactions with the child; the mother lacked awareness of or insight into her own past of domestic violence with the child's father; despite working on anger management issues for over a year, she could not control her emotions; and she had failed to maintain stable housing. In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).

Findings Insufficient to Terminate Reunification Efforts. - Insufficient findings supported a trial court's conclusion that reasonable efforts to reunify a father and a child were not required because (1) limited facts cited did not show further efforts would be futile or inconsistent with the child's need for a safe, permanent home within a reasonable period of time, and (2) the findings mostly addressed the child's mother. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857 (2013).

Functional Equivalent of Reasonable Efforts Shown. - Trial court complied with G.S. 7B-507(a)(3) when it ordered the Department of Social Services to supervise the mother's visitation and to aid the mother in a substance abuse assessment and psychological evaluation, the functional equivalent of making reasonable efforts. In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).

Concurrent Permanent Placement Plan of Reunification and Adoption Held Proper. - Concurrent permanent placement plan of reunification and adoption as allowed by G.S. 7B-507(d) did not conflict with the requirement of G.S. 7B-907(a) (repealed, see now G.S. 7B-906.1) to obtain permanent placement within a reasonable period of time; concurrent plans leading to adoption of children by their foster parents and reunification with their mother were proper. In re J.J.L., 170 N.C. App. 368, 612 S.E.2d 404 (2005).

Placement with County Social Services Department. - Trial court did not err in placing the minor child in the custody of the county social services department despite the father's contention that the minor child could have been placed with relatives; no showing was made that suitable relatives existed, especially since the father's paternity was at issue, and thus placement with the paternal grandparents as suggested by the father might not be in the best interests of the minor child since the minor child might find that they were not the minor child's relatives after all. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Placement With Non-Relative. - Trial court did not abuse its discretion by placing a mother's children in a non-relative placement because either no suitable relative was available or it was not in the children's best interests to place them with a relative, and reunification efforts would be inconsistent with their health, safety and need for a permanent home within a reasonable period of time. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Appeals. - Mother had the right to appeal a permanency planning order because the order, while not explicitly ceasing reunification efforts, implicitly did so by changing the permanent plan to adoption and ordering the filing of a petition to terminate parental rights and the mother properly preserved her right to appeal the cessation of reunification efforts pursuant to G.S. 7B-507(c). In re A.P.W., 225 N.C. App. 534, 741 S.E.2d 388 (2013), review denied, 747 S.E.2d 251, 2013 N.C. LEXIS 759 (2013).

Motion filed by the county department of social services to dismiss a mother's appeal from a order ceasing reunification was denied because the appeal was combined with the mother's appeal of an order terminating her parental rights. In re H.D., 239 N.C. App. 318, 768 S.E.2d 860 (2015).

Applied in In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004); In re M.R.D.C., 166 N.C. App. 693, 603 S.E.2d 890 (2004), cert. denied, 359 N.C. 321, 611 S.E.2d 413 (2005); In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015).

Cited in In re K.S, 183 N.C. App. 315, 646 S.E.2d 541 (2007); In re C.M.S., 184 N.C. App. 488, 646 S.E.2d 592 (2007); In re S.C.R., 198 N.C. App. 525, 679 S.E.2d 905 (2009), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009); In re J.M.D., 210 N.C. App. 420, 708 S.E.2d 167 (2011); In re D.M., 211 N.C. App. 382, 712 S.E.2d 355 (2011); In re H.J.A., 223 N.C. App. 413, 735 S.E.2d 359 (2012); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Applicability. - Trial court's denial of a mother's request to regain legal and physical custody of her minor child, who was in the legal custody of the county department of social services and under the guardianship of the child's grandparents, was reversed and remanded because while the court held multiple proceedings pursuant to G.S. 7B-906 (repealed, see now G.S. 7B-906.1), there was never a finding made that guardianship was the permanent plan under G.S. 7B-907 (repealed, see now G.S. 7B-906.1); therefore, G.S. 7B-600(b) was inapplicable, and the trial court erred by imposing the burden of proof upon the mother. In re J.D.C., 174 N.C. App. 157, 620 S.E.2d 49 (2005).

Mother Had Standing to Bring Appeal. - Mother had standing to appeal a permanency planning order awarding guardianship of a child to foster parents because the statutory requirements were satisfied since the trial court's permanency planning order changed legal custody of the child from county department of social services to the foster parents, and the mother was the child's parent who was a "nonprevailing party"; the mother asserted her own parental interest in having the child placed in a foster home with is half-siblings. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Removal of Guardian. - A legal guardian of a child's person, unlike a mere custodian, is not removable for a mere change of circumstances; unfitness or neglect of duty must be shown. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428 (1985), cert. denied, 316 N.C. 194, 341 S.E.2d 584 (1986).

Adequate Resources. - Evidence supported the finding that the child's aunt had adequate resources to care for the child; while some evidence indicated that the aunt had financial difficulties over the summer, and her testimony was lacking in specificity, her sworn statement that she was willing to care for the child and possessed the financial resources to do so constituted competent evidence supporting the trial court's ruling. In re N.H., 255 N.C. App. 501, 804 S.E.2d 841 (2017).

Failure to Ensure Guardian had Ability to Support Child. - Trial court erred in failing the verify that the guardian, the father's girlfriend, had adequate resources to care appropriately for the child, as required by this section and G.S.7B-906.1(j), as the guardian's assurance that she had the financial and emotional ability to support the child was not sufficient evidence of such ability In re P.A., 241 N.C. App. 53, 772 S.E.2d 240 (2015).

Trial court did not adequately insure that a child's proposed guardians understood the legal significance of guardianship or had the means to support the child because (1) the proposed guardians did not testify, so the court could not independently verify the proposed guardians' understanding, and (2) insufficient evidence of the proposed guardians' ability to support the child was introduced. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

Appointment of Guardian Was Proper. - Guardian was properly appointed for child where the dispositional order demonstrated that the trial court found guardianship to be in the child's best interest following the presentation at the adjudicatory hearing of all the evidence concerning the mother's failure to properly care for the child, and after the review of the social service department's and guardian ad litem's reports. Additionally, the mother did not appear at the dispositional hearing, providing the court with additional grounds to appoint a guardian. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Amended G.S. 7B-906(b) (repealed, see now G.S. 7B-906.1) and G.S. 7B-600(b) applied to a review conducted in October 2002 because the amended statutes applied to reviews that were commenced after October 1, 2000. In re J.D.C., 174 N.C. App. 157, 620 S.E.2d 49 (2005).

Based on its consideration of reports from a home study conducted by a county department of social services in Virginia, a trial court adequately complied with G.S. 7B-600(c) and G.S. 7B-907(f) (repealed, see now G.S. 7B-906.1) in placing children in the guardianship of their maternal grandparents. In re J.E., 182 N.C. App. 612, 643 S.E.2d 70 (2007), review denied, 361 N.C. 427, 648 S.E.2d 504 (2007).

Trial court performed its statutory duty in awarding guardianship to the foster parents where it verified that the foster parents understood the legal significance of their appointment as guardians. In re J.M., - N.C. App. - , 843 S.E.2d 668 (2020).

Applied in In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009).

Cited in In re J.L.S., 168 N.C. App. 721, 608 S.E.2d 823 (2005); In re L.M.C., 170 N.C. App. 676, 613 S.E.2d 256 (2005); In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008); In re P.O., 207 N.C. App. 35, 698 S.E.2d 525 (2010); In re D.H.H., 208 N.C. App. 549, 703 S.E.2d 803 (2010); In re I.K., 227 N.C. App. 264, 742 S.E.2d 588 (2013); In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013); In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014); In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Former G.S. 7A-586 (see now this section) did not prevent the application of other pertinent statutory provisions. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Whether appointment of a guardian ad litem for a minor is necessary is controlled by G.S. 1A-1, Rule 17(b). In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Appointment Of Guardian Ad Litem Program Staff Member Satisfies Requirements Of The Statute. - Trial court's appointment of a guardian ad litem was valid because the use of a properly appointed Guardian Ad Litem Program staff member to serve as a juvenile's guardian ad litem fully satisfied the requirements of G.S. 7B-601; when a Guardian Ad Litem Program staff member is formally appointed by the trial court to serve as an individual guardian ad litem and fulfills the duties of a guardian ad litem as required by G.S. 7B-601(a), that staff member is acting as an actual guardian ad litem under the statute and cannot be considered a substitute or "de facto" guardian. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).

Trial court erred in failing to appoint a guardian ad litem (GAL) for the child from the beginning of a termination proceeding; a GAL and an attorney advocate performed distinct and separate roles, so the appointment of the attorney advocate as the GAL after three and a half days of testimony was insufficient, even though the advocate had been involved in the case from an earlier time. In re R.A.H., 171 N.C. App. 427, 614 S.E.2d 382 (2005).

Because five different guardian ad litems (GAL) made sporadic appearances for a mother's children at different hearings over a three-year period, and the only GAL actually appointed by the court never appeared at any hearing, there was no GAL discharging their duty to protect and promote the best interests of the children until formally relieved of the responsibility by the court as required by G.S. 7B-601(a). In re J.E., 183 N.C. App. 217, 644 S.E.2d 28 (2007), rev'd 362 N.C. 168, 655 S.E.2d 831 (2008), In re J.E., 183 N.C. App. 217, 644 S.E.2d 28 (2007).

Trial court did not err in failing to appoint a guardian ad litem for a mother's son because the guardian ad litem prepared a report, which reflected an investigation that complied with her duties as set forth in G.S. 7B-601(a); the report was submitted to the trial court in connection with the initial adjudication hearing, the trial court's adjudication and disposition order asserted that the guardian ad litem appeared at the hearing on the son's behalf, and that she submitted a report to the trial court relating to the son. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Trial court did not err in conducting a permanency planning review hearing in the absence of a guardian ad litem appointed to represent a juvenile because the juvenile's mother neither asserted nor argued prejudice as a result of the absence of a guardian ad litem at the permanency planning hearing; according to the plain language of G.S. 7B-1108 and G.S. 7B-601, the guardian ad litem's appointment did not terminate until the permanent plan had been achieved for the juvenile and approved by the court, and consequently, the guardian ad litem was required to continue to represent the juvenile at the permanency planning review hearing, but, standing alone, the failure to adhere to the requirement during a permanency planning hearing did not warrant reversal and, as such, the matter was subject to harmless error review. In re H.K.L., - N.C. App. - , - S.E.2d - (May 3, 2011).

Because the mother failed to object to the lack of a guardian ad litem (GAL) for the child during the termination proceedings, the issue was not preserved for appellate review; furthermore, the appellate court did not find it necessary to invoke the rule suspending the Rules of Appellate Procedure to prevent manifest injustice to either the mother or the child and to review the decision not to appoint a GAL in light of the mother's willful failure to make progress on her case plan, both before and after reunification efforts were ceased, and because a GAL appointment was not statutorily required. In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016).

Clerical Error. - Attorney who was appointed to serve as guardian ad litem (GAL) and attorney advocated investigated the case prior to the termination hearing and reported his observations to the trial court, such that competently fulfilled his role as GAL, and the trial court's clerical oversight in its execution of the proper form regarding its failure to check the GAL designation box for the person whom it properly designated on the same form to serve as attorney advocate was not prejudicial error. In re C.J.C., 374 N.C. 42, 839 S.E.2d 742 (2020).

Guardian's Acceptance of Petition to Terminate Parental Rights Sufficient for Jurisdiction. - Because the captions of the summonses naming the parents as respondents stated the name of the juvenile, and the guardians ad litem for the juvenile certified that they accepted service of the petition on the juvenile's behalf, the trial court had subject matter jurisdiction to hear the petition for termination of parental rights. In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008).

Guardian's Physical Presence. - As G.S. 7B-601 and G.S. 7B-1108 mandated the guardian ad litem's (GAL) physical presence at a termination of parental rights hearing, because a GAL was not present the court presumed prejudice, as the children were not represented by a GAL at a critical stage of the termination proceedings. In re J.H.K., 205 N.C. App. 165, 695 S.E.2d 162 (2010).

While the presence of the minor children's nonattorney guardian ad litem (GAL) volunteer at a termination of parental rights (TPR) hearing was preferable, the nonlawyer volunteer's attendance was not mandatory because, given the role of the attorney advocate to assist the GAL, the general assembly did not intend by the use of the word "represent" in G.S. 7B-1108(b) to obligate the volunteer GAL to appear in court during the TPR hearing unless the attorney advocate or the trial court deemed the GAL's presence necessary to protect the minor's best interests; G.S. 7B-1108 did not impose on the GAL volunteer a special duty to "represent" a juvenile beyond what G.S. 7B-601 required of a GAL as an appointed member of the GAL program. The GAL program performed the duties listed in G.S. 7B-601(a). In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).

Authority of Guardian ad Litem to Inquire as to Child's Adoption. - It was the duty and right of guardian ad litem to inquire into Department of Social Services' handling of child's adoption, and it was within the district court's jurisdiction to order DSS to turn over requested information, despite its confidential nature. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, cert. denied, 322 N.C. 481, 370 S.E.2d 226 (1988).

Continuing Duty to Conduct Follow-Up Investigations. - Former G.S. 7A-586 (see now this section) gave the guardian ad litem many more responsibilities and duties than a guardian ad litem ordinarily had. The guardian ad litem had the continuing duty to conduct follow-up investigations and to report to the court when the needs of the juveniles were not being met. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).

Right of Guardian to Confidential Information. - Former G.S. 7A-586 (see now this section) specifically gave the court the power to order that the guardian ad litem have confidential information which in the opinion of the guardian ad litem is relevant to the case. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).

The court may order the release of confidential information to a guardian ad litem if the guardian ad litem needs the information to determine whether the needs of the juveniles are being met. Wilkinson v. Riffel, 72 N.C. App. 220, 324 S.E.2d 31 (1984).

District Court's Jurisdiction Held Not Ended by Notice of Adoption Petition. - District court jurisdiction attached on March 25, 1987, when guardian ad litem filed a motion in district court to compel Department of Social Services (DSS) to grant his requests to visit child and to obtain information on any prospective adoptive parents, and subsequent notice, received on March 31, 1987, to the effect that a petition for adoption had been filed, did not end the district court's jurisdiction. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, cert. denied, 322 N.C. 481, 370 S.E.2d 226 (1988).

Failure to Communicate Child's Desires to Court. - Therapists' most recent recommendation was to allow the child to decide on visiting mother and the record showed the child's expressed desire and efforts to maintain contact with his mother, which was not communicated to the court by the guardian ad litem; why the child was not permitted to testify was missing from the record, and as he was 17 years old, his opinion carried great weight. Order eliminating reunification efforts was vacated. In re J.C.-b., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Prior Termination Proceedings. - In a termination of parental rights case in which a mother argued that the trial court violated her rights and committed reversible error by failing to ensure that the children had proper guardian ad litem (GAL) representation throughout every critical stage of the proceeding, the 20 April 2009 order terminating the mother's parental rights was the only order currently before the appellate court. By an order filed on 19 March 2009, an individual was appointed as the children's GAL; therefore, the children were represented by a GAL at the 19 March 2009 termination hearing, and any alleged violation of G.S. 7B-601(a), with respect to the prior termination hearings, could not be used to challenge the 17 April 2009 order. In re N.B., 200 N.C. App. 773, 688 S.E.2d 713 (2009).

Guardian Ad Litem Duties Satisfied. - Guardian Ad Litem Program satisfied its duties during abuse and neglect proceedings under G.S. 7B-601(a) because the attorney advocate was present during both portions of the proceedings and actively participated by questioning witnesses and offering recommendations for adjudication and disposition; the content of the attorney advocate's questions sufficiently demonstrated that the Guardian Ad Litem Program had actively investigated the case prior to the hearing. In re A.N.L., 213 N.C. App. 266, 714 S.E.2d 189 (2011).

Applied in In re L.B., 181 N.C. App. 174, 639 S.E.2d 23 (2007); In re E.H., 227 N.C. App. 525, 742 S.E.2d 844 (2013).

Cited in In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011); In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013); In re A.D.N., 231 N.C. App. 54, 752 S.E.2d 201 (2013), review denied, 755 S.E.2d 626, 2014 N.C. LEXIS 232 (2014); In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487 (2014); S.A.U. v. Horton (In re J.A.U.), 242 N.C. App. 603, 777 S.E.2d 772 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016); In re D.M.O., 250 N.C. App. 570, 794 S.E.2d 858 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Right to Counsel, Generally. - In a child dependency proceeding, services of counsel cannot be forced upon an unwilling defendant; however, the waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant is literate and competent, that he understands the consequences of his waiver, and that, in waiving his right, he is voluntarily exercising his own free will. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004).

Counsel Not Required in Every Termination Proceeding. - It cannot be said that the Constitution requires the appointment of counsel in every parental termination proceeding; the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings is to be answered in the first instance by the trial court, subject to appellate review. Lassiter v. Department of Social Servs., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640, rehearing denied, 453 U.S. 927, 102 S. Ct. 889, 69 L. Ed. 2d 1023 (1981).

Effect of Appointment But Not Representation. - Because a parent was initially appointed a guardian ad litem (GAL) pursuant to G.S. 7B-602 and G.S. 1A-1-17, but not ultimately represented by a GAL during the termination hearing, an order terminating the parent's parental rights was invalid. In re A.S.Y., 208 N.C. App. 530, 703 S.E.2d 797 (2010).

In case where the trial court entered adjudication and disposition orders finding the mother's two sons to be neglected and dependent juveniles, because the trial court determined that the mother could not adequately represent her own interests, and appointed a guardian ad litem (GAL) to represent her, conducting the adjudication and disposition hearings without the presence and participation of the GAL for the mother was error. In re D.L.P., 242 N.C. App. 597, 776 S.E.2d 241 (2015).

Parent's Right to Waive Counsel and Proceed Pro Se. - Trial court did not err under G.S. 7B-602(a) in allowing a child's parent to waive counsel and proceed pro se because the guardian ad litem was acting only in an assistive capacity, the parent had the ability to waive counsel, and the trial court adequately determined that the parent knowingly and voluntarily waived the parent's right to counsel. In re A.Y., 225 N.C. App. 29, 737 S.E.2d 160 (2013), review denied 367 N.C. 235, 748 S.E.2d 539, 2013 N.C. LEXIS 1009 (2013).

Trial court did not abuse its discretion by denying the mother's request to waive counsel and represent herself in a proceeding that adjudicating her children abused and neglected juveniles because this section did not require the trial court to allow parents to waive counsel and represent themselves but rather gave the trial court the discretion to do so, the court held that there was no constitutional right to self-representation for a parent in an abuse, neglect, and dependency proceeding, and it was apparent that the mother was entirely under the control of her boyfriend and was incapable of understanding the effect his behavior had had on her children. In re J.R., 250 N.C. App. 195, 791 S.E.2d 922 (2016).

Failure to Make Findings of Fact Regarding Waiver of Counsel. - Although it appeared that the trial court's inquiry was adequate to determine whether the mother knowingly and voluntarily waived her right to counsel during the permanency planning hearing, the trial court failed to make findings of fact sufficient to show that the waiver was knowing and voluntary as the permanency planning order was devoid of any findings regarding the mother's waiver of counsel and decision to proceed pro se. In re J.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Trial Court Erred by Equating Request for New Counsel With Waiver of Court-Appointed Counsel. - In a child dependency proceeding, a new trial was required since the trial court erred by equating the father's request for a new counsel with a waiver of court-appointed counsel, and requiring the father to proceed to trial pro se. In re S.L.L., 167 N.C. App. 362, 605 S.E.2d 498 (2004).

Section G.S. 7B-602(b) Analysis Compared to G.S. 7B-1101 Analysis for Appointment of Guardian Ad Litem. - Court saw no reason why the analysis of the issues arising under G.S. 7B-1101 were not applicable to the same issues arising under G.S. 7B-602(b) with respect to whether to appoint a guardian ad litem; the G.S. 7B-1101 analysis centered on the intertwining of the parent's condition and the child's neglect. In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).

Counsel Not Shown to Be Ineffective. - Although father had a right to effective counsel under G.S. 7B-602(a) in a termination of parental rights proceeding, he failed to show how his attorney's tardiness caused him to be denied a fair hearing, failed to identify what direct testimony was missed, and did not explain how counsel's failure to hear the testimony prejudiced father. In re L.C., 181 N.C. App. 278, 638 S.E.2d 638 (2007), review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).

Failure to Appoint Guardian Ad Litem. - Trial court erroneously failed to appoint a guardian ad litem for the mother as required by G.S. 7B-602 where the mother had mental health issues, a depressive disorder and borderline personality disorder, which resulted in the daughter's dependency. In re L.M.C., 170 N.C. App. 676, 613 S.E.2d 256 (2005).

G.S. 7B-602 required that a guardian ad litem (GAL) be appointed if the juvenile was alleged to be "dependent" and the parent was incapable as a result of mental illness of providing the proper care and supervision of the juvenile; G.S. 7B-602 was not limited to termination cases, and the trial court's failure to sua sponte appoint a GAL for the mother in a dependency case was error where the trial court was on notice of the mother's alleged mental conditions, and made references to and questioned the mother's mental condition in several orders. In re D.D.Y., 171 N.C. App. 347, 621 S.E.2d 15 (2005).

Because a petition did not mention any developmental disabilities or limitations and the mother's brief cited nothing in the record indicating that her inability to care for her children without constant assistance was due to her mental health issues, the court did not err in failing to appoint a guardian ad litem. In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006), aff'd, cert. dismissed, in part, 362 N.C. 172, 655 S.E.2d 712 (2008), In re J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).

In a neglect and dependency proceeding, the trial court erred in not appointing a guardian ad litem pursuant to G.S. 7B-602(b)(1) for a mother because she was found to be suffering from mental illness, including depression and a borderline personality disorder. In re T.T., 182 N.C. App. 145, 641 S.E.2d 344 (2007).

G.S. 7B-602(b)(1) did not require the appointment of a guardian ad litem for the father as the dependency allegations did not focus on the father's incapacity; rather, the majority of the dependency allegations focused on the father's alleged abuse and neglect as exhibited by his noncompliance with court-ordered domestic violence counseling and a pattern of abuse against his wife and other children. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004).

Mother Was Not Entitled to Appointment of Guardian Ad Litem During Termination of Parental Rights Action. - Mother was not entitled to the appointment of a guardian ad litem in an action to terminate her parental rights; the mother's sparse references to her need to counseling and drug treatment did not rise to the level of being so intertwined with the neglect of her children and to be virtually inseparable and while the Department of Social Services recommended counseling, there was no significant evidence in the record to suggest that the mother's parental rights were terminated due to any mental illness or substance abuse. In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005).

Appointment of a guardian ad litem was not compelled because the mother's mental illness was not a central factor in the trial court findings. In re J.M.W., 179 N.C. App. 788, 635 S.E.2d 916 (2006).

Allegations of Parental Condition Triggers Appointment of Guardian Ad Litem. - Department of social services "alleged" that the mother's dependency and mental illness were the cause of her child's problems so, even without allegations of specific facts, it was error under G.S. 7B-602 for the lower court not to appoint a guardian ad litem for her before it adjudicated whether her child was dependent and neglected under G.S. 7B-101(9), (15). In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).

Adoption as a Consequence of Neglect Proceedings. - Where the signing of the adoption consent forms occurred following and as a consequence of a neglect proceeding which the department of social services initiated, the signing of the papers directly related to the neglect proceedings and respondent was entitled to counsel when she signed the forms. In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994).

Delay in Appointment of Guardian Ad Litem Did Not Cause Prejudice as Mother Was Adequately Represented at Critical Stages. - Because the mother was adequately represented by the guardian ad litem at every critical stage of the case, the one and a half month delay in appointing a guardian ad litem did not cause the mother prejudice. In re H. W., 163 N.C. App. 438, 594 S.E.2d 211 (2004).

Failure to Hold Hearing on Parent's Competency. - Trial court considering the custody and visitation of an abused and neglected child abused the court's discretion after the court failed to exercise the court's discretion to hold a hearing on the competency of a respondent parent under G.S. 7B-602(c), and where it improperly ceded complete discretion to determine visitation with the child. In re M.H.B., 192 N.C. App. 258, 664 S.E.2d 583 (2008).

Trial court erred in allowing a mother to waive counsel and represent herself at the hearing on the petition to terminate her parental rights because it did not appear from the record that the trial court determined determine whether the guardian ad litem would function in a substitutive capacity or play a role of assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152 (2012).

Right to Counsel Denied. - Because an action was not pending in juvenile court at the time of the permanent custody order, the mother did not have the benefit of her right to counsel afforded by G.S. 7B-602(a). In re N.G.H., 252 N.C. App. 426, 837 S.E.2d 724 (2017).

Applied in In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).

Cited in In re O.C., 171 N.C. App. 457, 615 S.E.2d 391 (2005), cert. denied, - N.C. - , 623 S.E.2d 587 (2005); In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005); In re L.W., 175 N.C. App. 387, 623 S.E.2d 626 (2006); In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387 (2006); In re D.H., 177 N.C. App. 700, 629 S.E.2d 920 (2006); In re H.D.F., 197 N.C. App. 480, 677 S.E.2d 877 (2009).

CASE NOTES

Guardian's Physical Presence at Termination Hearing. - While the presence of the minor children's nonattorney guardian ad litem (GAL) volunteer at a termination of parental rights (TPR) hearing was preferable, the nonlawyer volunteer's attendance was not mandatory because, given the role of the attorney advocate to assist the GAL, the general assembly did not intend by the use of the word "represent" in G.S. 7B-1108(b) to obligate the volunteer GAL to appear in court during the TPR hearing unless the attorney advocate or the trial court deemed the GAL's presence necessary to protect the minor's best interests; G.S. 7B-1108 did not impose on the GAL volunteer a special duty to "represent" a juvenile beyond what G.S. 7B-601 required of a GAL as an appointed member of the GAL program. The GAL program performed the duties listed in G.S. 7B-601(a). In re J.H.K., 365 N.C. 171, 711 S.E.2d 118 (2011).

CASE NOTES

Relation to Civil Procedure Rules. - Trial court did not err by disallowing a deposition under the Rules of Civil Procedure; as the Juvenile Code provided for discovery, specifically including depositions, the Rules of Civil Procedure did not apply here. The trial court merely instructed the father to cancel the noticed civil deposition and affirmed that he could request a deposition later in the juvenile proceeding. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).

Denial to Interview Child Was Not Abuse of Discretion. - Trial court did not err by denying a mother's motion to interview her son for whom a proceeding was initiated against the mother for termination of her parental rights because, as evidenced by the multiple findings of fact contained within multiple court orders, any contact the mother had with the child was disruptive to his own therapeutic progress and it was clear from the record that the trial court was concerned with the mother's behavior in attempting to learn of the child's whereabouts, particularly since the mother abducted the child from his school bus stop while he was in foster care. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).

Denial of Continuance Was Not Abuse of Discretion. - Trial court did not commit an abuse of discretion by applying an administrative order governing all discovery in abuse, neglect, and dependency proceedings and denying the parents' motions to continue because the gravamen of the problem fell with the inability of the attorneys to make time to review the records in accordance with the administrative order. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007).

Discovery Not Denied. - Trial court did not refuse to allow the father to depose the social worker; the trial court instructed the father to first avail himself of the information sharing provisions under the statute, while explicitly leaving open the possibility that he could later file a motion for discovery requesting a deposition. As the trial court did not exercise its discretion under the statute to deny a discovery request, it could not have abused its discretion. In re M.M., - N.C. App. - , 845 S.E.2d 888 (2020).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Allowing Amendment Discretionary. - Where petition sufficiently alleged the offense of larceny, and amendment in no way changed the nature of the offense, but simply identified more specifically the owner of the property allegedly stolen, allowing the amendment under these circumstances was within the sound discretion of the court. In re Jones, 11 N.C. App. 437, 181 S.E.2d 162, appeal dismissed, 279 N.C. 616, 184 S.E.2d 267 (1971), decided under former G.S. 7A-285.

Improper Petition Amendment. - Trial court erred in adjudicating a child to be a neglected juvenile where the petition alleged only that the child was a dependent juvenile, the trial court had essentially amended the nature of the juvenile petition by allowing the department to proceed on a claim of neglect, and as a result the mother had no notice of the claim of neglect. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).

Trial court's decision to allow the Department of Social Services to amend its petition to add sexual abuse allegations against a second child was erroneous because it changed the nature of the conditions relied upon in the original petition. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581 (2007), aff'd in part and rev'd in part 2010 N.C. App. LEXIS 958 (N.C. Ct. App. 2010).

Because the trial court erred in allowing the county department of social services to amend the petitions to terminate a mother's parental rights to conform to the evidence, the original petitions failed to put the mother on notice that G.S. 7B-1111(a)(2) would be a possible ground to support termination, and G.S. 1A-1, N.C. R. Civ. P. 15(b) did not apply, the termination order was reversed. In re B.L.H., 190 N.C. App. 142, 660 S.E.2d 255 (2008), aff'd, 362 N.C. 674, 669 S.E.2d 320 (2008).

Construction. - The North Carolina Supreme Court construed former G.S. 7A-627 (see now this section) to permit a juvenile petition to be amended only if the amended petition does not charge the juvenile with a different offense. In re Davis, 114 N.C. App. 253, 441 S.E.2d 696 (1994).

Petition Could Be Amended. - Trial court did not lack subject matter jurisdiction over the juvenile petition that the caseworker filed in the termination of parental rights case regarding the father even though the caseworker did not sign the juvenile petition; the caseworker verified the petition, which was sufficient to confer jurisdiction, and in any event, would have been allowed to amend the petition by signing it if not signing it was a problem. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

Amendment to a juvenile petition alleging abuse, neglect, and dependency to add allegations of sexual abuse did not change the nature of the conditions upon which the petition was based in violation of G.S. 7B-800, because the amendment did not change the nature of the condition DSS had already alleged, abuse under G.S. 7B-101(1). In re M.G., 363 N.C. 570, 681 S.E.2d 290 (Aug. 28, 2009).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter. Some of the following cases were decided under former G.S. 7B-902, which was similar to provisions currently found in subsection (b1) of this section.

Exclusion of Public. - It has never been the practice in juvenile proceedings wholly to exclude parents, relatives or friends, or to refuse juveniles the benefit of counsel. Even so, such proceedings are usually conducted without admitting the public generally. In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).

Prejudice Not Shown After Continuance. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

It is a discretionary matter with the trial judge whether the general public (which includes newspaper reporters) is excluded from a juvenile hearing. In re Potts, 14 N.C. App. 387, 188 S.E.2d 643, cert. denied, 281 N.C. 622, 190 S.E.2d 471 (1972).

Failure to Show Delay was Prejudicial. - Failure to hold a timely hearing as required under G.S. 7B-801 and G.S. 7B-803 was not erroneous where respondents failed to show prejudice as a result of any delay; at the adjudication and dispositional stage it was the status of the juvenile that was at issue, and because parental status was not at issue, it was more difficult for respondents to show prejudice. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).

As for delays in a child neglect case based on various continuances, most of the delay was attributed to respondent-parents' search for an expert witness, and their request for a special trial setting, and not as they argued, due to the trial court; any assignment of error based on G.S. 7B-801(c) and G.S. 7B-803 was overruled. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Delay Not Justified by Continuances. - Trial court, which continued a neglect and dependency case seven times due to a crowded docket, three times due to the absence of parties, and four times due to the absence of attorneys, did not abuse its discretion when it continued the case due to an attorney's medical needs and again due to a death in the mother's family, as these situations might have been considered extraordinary circumstances justifying a continuance. However, a new trial was required because the court abused its discretion by continuing the case the other times in a manner inconsistent with G.S. 7B-803; therefore, the court's violations of the time limits set out in G.S. 7B-801(c) and G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) were not justified, and the mother and the fathers of her two children were prejudiced by the delays. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).

Authority to Adjudicate. - Trial court had authority or jurisdiction to hear the case because the adjudicatory hearing was commenced within the 60-day period after the Department of Social Services filed its neglect petition. In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006).

Default. - Just as a default judgment or judgment on the pleadings is inappropriate in a proceeding involving termination of parental rights, it is equally inappropriate in an adjudication of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000), decided under former G.S. 7B-902.

Practice and Procedure. - Although it is proper for a court to enter a consent order in an abuse, neglect, or dependency proceeding, such an order may be entered only when all parties are present, the juvenile is represented by counsel, and all other parties are either represented by counsel or have waived counsel, and sufficient findings of fact are made by the court. Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314 (2011), decided under former G.S. 7B-902.

Absence of Parents. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000), decided under former G.S. 7B-902.

In the absence of the father's presence, the mother's consent to the adjudication of neglect as to their daughter was insufficient to dispense with the requirement of an adjudicatory hearing. In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002), decided under former G.S. 7B-902.

Trial court erred in entering a consent judgment finding that a mother had neglected her children; pursuant to G.S. 7B-902, consent by the father of a child was insufficient to bind the mother when the mother was not present at the hearing and did not consent to the judgment, and testimony by a social worker did not meet the clear and convincing evidence requirement of G.S. 7B-805. In re J.R., 163 N.C. App. 201, 592 S.E.2d 746 (2004), decided under former G.S. 7B-902.

Consent Adjudication. - Trial court erred in adjudicating children to be neglected and dependent juveniles because the adjudication and disposition order did not meet the requirements of a valid consent adjudication order as the record contained no evidence that the parties had reached a consent agreement or that the respondent parent had consented to the parent's children being adjudicated as neglected and dependent. In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).

Trial court's order adjudicating a child to be neglected was not a valid consent adjudication order under G.S. 7B-801(b1) as it simply contained the parties' stipulation to certain facts. In re R.L.G., 260 N.C. App. 70, 816 S.E.2d 914 (2018).

Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Cited in In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017).

CASE NOTES

• I. General Consideration.
• II. Due Process Rights.

CASE NOTES

Denial of Continuance Proper. - Trial court properly denied mother's request for a continuance in termination of parental rights case where nothing in the record indicated that the court requested or needed additional information in the best interests of the children, that more time was needed for expeditious discovery, that the mother did not receive sufficient notice of the hearing, that extraordinary circumstances necessitated a continuance in the case, and that the mother's absence from the hearing was voluntary or due to her own negligence in failing to obtain adequate transportation. In re Mitchell, 148 N.C. App. 483, 559 S.E.2d 237 (2002).

Because the trial court had already allowed a biological father one continuance to allow him to better prepare, and because any lack of preparation in the first place was caused by the father's knowing failure to communicate with county health and human services, the trial court did not abuse its discretion by denying his motion to continue. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Trial court did not abuse its discretion by denying a biological father's motion to continue because the biological father failed to meet his burden of demonstrating that his recent incarceration constituted an extraordinary circumstance that would justify a continuance, as his inability to adequately prepare for trial was due to his own knowing inaction in the days and months leading up to the hearing. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Trial court properly determined that a mother was not entitled to a continuance on the ground that she was awaiting trial for criminal charges, and the mother failed to demonstrate any violation of her constitutional rights in the denial of her motion, because the charges against the mother did not arise from the "transaction or occurrence" that led to the juvenile petition but arose after the petition; the trial court provided adequate safeguards to protect her due process rights. In re L.G.A., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Trial court properly determined that a mother was not entitled to a continuance on the ground that she was awaiting trial for criminal charges, and the mother failed to demonstrate any violation of her constitutional rights in the denial of her motion, because the charges against the mother did not arise from the "transaction or occurrence" that led to the juvenile petition but arose after the petition; the trial court provided adequate safeguards to protect her due process rights. In re L.G.A., - N.C. App. - , - S.E.2d - (Apr. 20, 2021).

Standard of Review. - Trial court did not abuse its discretion by denying a mother's third motion to continue in the proceeding commenced to terminate her parental rights to her son because, though she was incarcerated prior to the hearing, such incarceration was the result of her own actions in abducting the child and the preceding continuance was allowed expressly for the purpose of allowing the mother to gather the documents that she asserted she needed to obtain. In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).

Because a parent did not demonstrate any extraordinary circumstances that necessitated a continuance, the trial court did not abuse its discretion in initially denying the parent's motion to continue. In re C.J.H., 240 N.C. App. 489, 772 S.E.2d 82 (2015).

Given that there was no violation of a parent's due process rights when parental rights are terminated at a hearing at which the parent was not present, respondent's motion to continue was not based on a constitutional right, and the denial of the motion was reviewed for abuse of discretion. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).

Denial of Stay Proper. - Trial court did not err by failing to grant the stepmother's motion to stay the proceedings because there was no statutory mandate that the trial court grant a stay; counsel for the county department of social services gave the trial court several legitimate reasons for denying the motion. In re Patron, 250 N.C. App. 375, 792 S.E.2d 853 (2016).

Failure to Show Delay was Prejudicial. - Failure to hold a timely hearing as required under G.S. 7B-801 and G.S. 7B-803 was not erroneous where respondents failed to show prejudice as a result of any delay; at the adjudication and dispositional stage it was the status of the juvenile that was at issue, and because parental status was not at issue, it was more difficult for respondents to show prejudice. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).

Delay Not Justified by Continuances. - Trial court, which continued a neglect and dependency case seven times due to a crowded docket, three times due to the absence of parties, and four times due to the absence of attorneys, did not abuse its discretion when it continued the case due to an attorney's medical needs and again due to a death in the mother's family, as these situations might have been considered extraordinary circumstances justifying a continuance. However, a new trial was required because the court abused its discretion by continuing the case the other times in a manner inconsistent with G.S. 7B-803; therefore, the court's violations of the time limits set out in G.S. 7B-801(c) and G.S. 7B-906(a) (repealed, see now G.S. 7B-906.1) were not justified, and the mother and the fathers of her two children were prejudiced by the delays. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).

The grounds for a motion for a continuance must be fully established. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981) (decided under prior law).

Prejudice Not Shown After Continuance. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

As for delays in a child neglect case based on various continuances, most of the delay was attributed to respondent-parents' search for an expert witness, and their request for a special trial setting, and not as they argued, due to the trial court; any assignment of error based on G.S. 7B-801(c) and G.S. 7B-803 was overruled. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Trial court did not abuse its discretion in denying respondent's motion for a continuance; counsel expected her to be in court, counsel never argued that she needed additional time to prepare for the hearing, respondent never gave any reason for her absence, and prejudice was not shown. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).

Motion Based upon Absence of Witness. - When the motion for a continuance is based upon the absence of a witness, the motion should be supported by an affidavit indicating the facts to be proved by the witness. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981) (decided under prior law).

Preservation for Review. - Respondent failed to preserve the issue of whether the denial of the motion for a continuance violated her constitutional right to effective assistance of counsel, as she raised the issue for the first time on appeal. In re C.M.P., 254 N.C. App. 647, 803 S.E.2d 853 (2017).

Evidence was Sufficient to Support Neglect Finding. - Fact that the mother admitted to using cocaine for at least two months prior to the child's birth, the mother and the child tested positive for cocaine at the time of the child's birth, that there were incidents of domestic violence between respondents, and that the mother refused to sign a safety assessment plan, provided clear and convincing evidence supporting a finding of neglect. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007).

Cited in In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); In re E.K., 202 N.C. App. 309, 688 S.E.2d 107 (2010).

CASE NOTES

Psychological Reports. - The clear intent of the legislature is that a hearing upon a motion for review is in the nature of a dispositional hearing rather than an adjudicatory hearing, and that the formal rules of evidence, G.S. 8C-1, do not apply. Therefore, the trial court could properly consider written psychological reports in determining, on motion brought by parents whose parental rights had been terminated under former G.S. 7A-289.34, whether the needs of children would be best served by modification of its previous orders concerning visitation. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985), decided prior to enactment of this Chapter.

Medical Records. - Although medical records were admitted (in reliance on Rule 10.3, Twelfth Judicial District Juvenile Case Management Plan) into evidence without proper foundation, as required by G.S. 8C-1, N.C. R. Evid. 703, 803(6), in order to fit within the exceptions to the hearsay rule, G.S. 8C-1, N.C. R. Evid. 801(c), 802, because - pursuant to G.S. 7B-804 - the rules of evidence in civil cases were to apply to child neglect cases, respondents, parents of the children, who were found neglected, had the burden of showing prejudice at the admission of the records; but they could not, given the other extensive direct testimony from medical experts upon which it was presumed the trial court had relied. In re T.M., 187 N.C. App. 694, 654 S.E.2d 502 (2007).

Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).

Judicially Noticed Findings. - Notwithstanding the trial court's authority to take notice of the court's own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of the court's prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Cited in In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007); In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015); In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Standards of Evidence. - In a juvenile adjudicatory hearing, the respondent is entitled to have the evidence evaluated by the same standards as apply in criminal proceedings against adults. The State, therefore, must present substantial evidence of each essential element of the offense charged and of respondent's being the perpetrator. In re Walker, 83 N.C. App. 46, 348 S.E.2d 823 (1986).

Clear and Convincing Evidence Required. - Allegations of child abuse and neglect must be proven by clear and convincing evidence. In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673 (2003).

Court reversed a trial court's order adjudicating a mother's children as neglected, because the county department of social services did not present any evidence by which the trial court could have made any findings of fact or conclusions of law as required by G.S. 7B-807, and nevertheless, the trial court entered certain findings of fact, one of which recited verbatim the summary of the department's intervention, which report had not been introduced into evidence. In re A.W., 164 N.C. App. 593, 596 S.E.2d 294 (2004).

While the findings of fact and conclusions of law showed, by clear and convincing evidence pursuant to G.S. 7B-805, that a father neglected his three-month-old infant under G.S. 7B-101(15), based on an incident where the infant suffered a severe head injury while in his father's sole care, which could not have been attributed to rolling off the couch as the father contended happened when he went to get a bottle for the infant, the proof was insufficient to show that the mother had neglected the infant; she was not at home when the incident occurred and there were no other incidents involving the infant. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).

Disagreement among expert physicians as to whether a six-month-old child's broken clavicle, compression fracture of the spine, and hemorrhaged eyes were caused by accidents or by non-accidental trauma, as well as a trial court's findings that the child's regular pediatrician saw no reason for concern about child abuse and that there was no evidence that her parents had problems affecting their parenting ability, supported the trial court's conclusion of law that clear and convincing evidence was not presented to show that the child was abused or neglected under G.S. 7B-805. In re A.R.H., 177 N.C. App. 797, 629 S.E.2d 925 (2006).

Finding of child abuse under G.S. 7B-101(1) was improper because the only evidence of record was a spanking by the father with a belt, resulting in a bruise on the child's buttocks, which did not rise to the level of "serious injury" to constitute abuse by clear and convincing evidence, as required by G.S. 7B-805. In re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006), aff'd, 361 N.C. 345, - S.E.2d - (2007).

Trial court did not err in concluding that the minor child was a neglected juvenile, as the allegation in the petition that the minor child was neglected because the minor child lived in an environment injurious to the minor child's welfare was proven by clear and convincing evidence; indeed, the evidence showed that the minor child's older sibling was adjudicated abused and neglected because the mother's boyfriend, who was cohabitating with the mother at the time of the abuse, pled guilty to several felony sex offenses. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).

Burden of Persuasion in Summary Ejectment Action. - Dismissal of a summary ejectment action was error because a trial court held the landlord to a clear, cogent, and convincing evidence standard, and in a summary ejectment action, the landlord's burden of persuasion was by the preponderance of the evidence as set forth in G.S. 42-30; this standard also applied to appeals of summary ejectment actions in the district court. Durham Hosiery Mill Ltd. P'ship v. Morris, 217 N.C. App. 590, 720 S.E.2d 426 (2011).

The trial court is required to make ultimate findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact. In re Gleisner, 141 N.C. App. 475, 539 S.E.2d 362 (2000).

Binding Effect of Order Failing to State Standard of Proof When Not Appealed. - A trial court's failure to state the standard of proof used in making a determination of abuse or neglect constitutes error. However, because no appeal was taken or other relief sought from trial court's failure to state the standard of proof used in an order adjudging respondent's children abused and neglected, it remained a valid final order which was binding in a later proceeding on the facts. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Estoppel to Relitigate Issue Decided in Previous Proceeding. - The trial court did not err by concluding that petitioner was authorized to file petition to terminate parental rights, nor by ruling that the parties were estopped from relitigating abuse and neglect issues decided in previous proceeding in which respondent was found to have sexually abused his children, where the trial court did not rely solely upon the previous order in a way that would have impermissibly predetermined the outcome of the termination hearing, and did not deny respondent the opportunity to present evidence relevant to these issues, but merely prohibited the parties from relitigating whether respondent had, in fact, sexually abused his children. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Statement of standard. - Trial court met the requirements of former G.S. 7A-635 (see now this section) and former G.S. 7A-637 (see now G.S. 7B-807 and 7B-2410) by stating the standard used at the adjudication stage of the proceeding; the court was not also required to recite that the court's decision at the disposition stage of the proceeding was discretionary. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Court's statement on the first page of its adjudication order stating: "For purposes of adjudication, the court finds the following facts have been proven by clear and convincing evidence" satisfies G.S. 7B-805 by stating the standard of proof was satisfied. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).

Differing Standards for Adjudicatory and Dispositional Hearings. - Trial court did not err in consolidating the adjudicatory and dispositional hearings for evidentiary purposes in the mother's case alleging abuse and neglect against her child, as there was no requirement that those two stages be conducted at separate hearings and the trial court still applied the proper, separate evidentiary standards, namely "clear and convincing evidence" for the adjudicatory stage and the "best interests of the child" standard for the disposition stage. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).

Notwithstanding the trial court's authority to take notice of the courts own orders, it was problematic to allow the trial court's findings in the first order on nonsecure custody to serve as the sole support for most findings in the neglect adjudication; the trial court was not bound by the rules of evidence at the custody hearing and respondents had no right to appeal, and to allow the trial court to find adjudicatory facts by taking judicial notice of its prior findings undermined the procedural safeguards for adjudications. In re J.C.M.J.C., - N.C. App. - , 834 S.E.2d 670 (2019).

Absence of parent. - The respondent/mother's failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find, based on competent evidence, that the allegations of neglect contained in the petition were supported by clear and convincing evidence; nor was the father's purported consent sufficient to support a finding of neglect. Thrift v. Buncombe County Dep't of Soc. Servs., 137 N.C. App. 559, 528 S.E.2d 394 (2000).

Trial court erred in entering a consent judgment finding that a mother had neglected her children; pursuant to G.S. 7B-902, consent by the father of a child was insufficient to bind the mother when the mother was not present at the hearing and did not consent to the judgment, and testimony by a social worker did not meet the clear and convincing evidence requirement of G.S. 7B-805. In re J.R., 163 N.C. App. 201, 592 S.E.2d 746 (2004).

The evidence before the trial court was sufficient to support its findings of abuse and neglect where: (1) Child, while in respondent's sole care, suffered multiple burns over a wide portion of her body; (2) no accidental cause was established, and the child in fact stated that respondent burned her; (3) the burns were serious, requiring prompt medical attention; (4) respondent did not seek treatment for the child's injuries and refused to permit social worker to do so; and (5) the child was taken for treatment only upon the intervention of the sheriff's department, over respondent's opposition. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

A finding of neglect by clear and convincing evidence was proper where the children were kept at home, and they did not receive proper medical care, supervision, or adequate nutrition. In re Bell, 107 N.C. App. 566, 421 S.E.2d 590, appeal withdrawn, 333 N.C. 168, 426 S.E.2d 699 (1992).

The trial court's findings of fact regarding child's status as an abused juvenile were supported by clear and convincing evidence where the child testified that her father had shown her a picture of a woman wearing a see-through dress, the child's friend drew a picture in court of what she had seen, i.e. the father's anatomy, a social worker testified that the child had told her that her father had "asked her to touch his penis," and a doctor testified that the child had told her that her father had asked her to look at a "dirty book." In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).

Evidence before the trial court was sufficient to support its findings of abuse and neglect where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).

Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).

Social services department presented clear, cogent, and convincing evidence from which the trial court could find and conclude that child was at risk of some physical, mental, or emotional impairment where the mother kept the child at her cousin's home in a filthy room with clothes and dirty diapers strewn about, she would leave the home for several days at a time and, upon her return, she would sleep for long periods of time with the child in the bed and would not awaken when the child cried, the mother came home drunk or under the influence of drugs on one occasion and attempted to remove the child from the home in the middle of the night, and the mother was unable to complete a substance abuse treatment program because of frequent altercations with other residents. In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

Abuse and neglect determination was supported by clear and convincing evidence as required by G.S. 7B-805, including evidence that the child's skull fracture was a depression fracture caused by non-accidental means, the mother's explanations were inconsistent with the injuries observed, the injuries occurred while the child was in the physical custody of the mother, the injuries were severe, and the mother failed to obtain medical attention for the child. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008).

Finding that areas of the brain effected by infarctions would not regenerate was supported by clear and convincing evidence. - In a case alleging abuse, neglect, and dependency, a medical expert explained that with an infarction, part of the brain tissue begins to swell, will become damaged, and will either scar down or just go away; the damaged portion of the brain typically will not regenerate. Thus, based on the expert's testimony, the trial court's finding of fact that the areas effected by the infarctions will not regenerate was supported by clear and convincing evidence. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).

Evidence supported a finding of neglect under former G.S. 7A-635 where the trial court found that respondent parents intended to live with their new infant in the home of the maternal grandparents where their previous child died; where the child's father had been convicted of causing the infant's death; where the mother had been advised regarding the cause of this non-accidental death but continued to support the father's version of events; where the parents had neither expressed nor exhibited any concern for the future safety of their newborn in their home; and where the father "extended most of the care for the juvenile" during the visits of the parents with the child. In re McLean, 135 N.C. App. 387, 521 S.E.2d 121 (1999).

Evidence of Neglect Was Not Supported by Clear and Convincing Evidence. - In a case alleging abuse, neglect, and dependency, the finding that the mother had neglected in the past to appropriately care for the child was not supported by clear and convincing evidence, because: (1) although the mother testified that she neither placed any devices on the sofa to prevent the child from falling off nor placed any pillows in front of the sofa in the event that the child did roll off, the child was unable to roll over, and was not otherwise mobile, during the prior instances when the parents placed him on the sofa; (2) it was not unusual for parents to place an immobile infant on a sofa, couch, or bed; and (3) the child had never missed any doctor's appointments, was developing appropriately, and had no prior injuries. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).

Trial court did not err in dismissing the neglect and dependency petitions because the department of social services failed to present clear and convincing evidence that the parents' substance abuse problems created a substantial risk of harm to the children. In re E.P, 183 N.C. App. 301, 645 S.E.2d 772 (2007).

Trial court properly adjudicated a child to be a neglected juvenile where the testimony showed that the mother had left the child alone in a motel room when she was only 16 months old. In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007).

Evidence of Statutory Rape Insufficient to Support Dependency Finding. - Fact that the father could have been criminally liable for statutory rape pursuant to G.S. 14-27.7A(a), standing alone, was insufficient to support a conclusion that the father was unable to provide appropriate care for the child, and thus that the child was a dependent child. In re J.L., 183 N.C. App. 126, 643 S.E.2d 604 (2007).

Finding that mother was not willing to investigate the needs of the child in a safe environment was not supported by clear and convincing evidence in a case alleging abuse, neglect, and dependency; in one week, the mother provided the county department of social services with at least four names of individuals who could potentially care for the child, if necessary. In re J.A.G., - N.C. App. - , - S.E.2d - (June 7, 2005).

Consent Adjudication Order. - Trial court entered a consent adjudication order adjudicating a mother's son an abused and neglected juvenile without an adjudicatory hearing and based entirely on stipulated facts. Under these circumstances, the appellate court declined to extend its holding in In re Church to find reversible error based on the failure of the consent adjudication order to state the evidentiary standard contained in G.S. 7B-805. In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017).

Adjudication Order Was A Nullity. - Adjudication order finding a child was abused and signed by the chief district court judge was a nullity because the parties did not and could not have stipulated to the final conclusion, and no other evidence beyond the parties' stipulation was presented at the adjudication hearing; the retired judge was required to make findings of fact, adjudicated and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Cited in In re Smith, 146 N.C. App. 302, 552 S.E.2d 184 (2001); In re Shaw, 152 N.C. App. 126, 566 S.E.2d 744 (2002); Adams v. Bank United of Tex. FSB, 167 N.C. App. 395, 606 S.E.2d 149 (2004), cert. denied, 359 N.C. 410, - S.E.2d - (2005); In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007); In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010); State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64 (2013), review denied 367 N.C. 256, 749 S.E.2d 886, 2013 N.C. LEXIS 1285 (2013); In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015); In re M.S., 247 N.C. App. 89, 785 S.E.2d 590 (2016).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Sufficiency of the Recording of Proceedings - Where it appeared that very little of the testimony from a termination of parental rights proceeding was not recorded, and the interruptions in the recording due to the ending of tapes and the malfunctioning of equipment were only very brief, and where the trial court's extensive findings indicated a careful evaluation of all of the evidence, the appellate court's review of the record, without the benefit of a narration of the missing evidence, failed to show any prejudice to the mother from the missing testimony. In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003).

When, in a termination of parental rights proceeding, one day's testimony was not recorded, the father appealing the trial court's subsequent judgment did not show that he was prejudiced, as he made no attempt to reconstruct the evidence not recorded, made only general allegations of prejudice in his appellate brief, and a review of the transcript indicated much of the missing testimony was clearly referenced and repeated by the witnesses, including the father, during the hearing's second day. In re Bradshaw, 160 N.C. App. 677, 587 S.E.2d 83 (2003).

Party Failed to Reconstruct Destroyed Transcript. - Mother's argument that she had been denied due process in a review hearing on a change to her child's permanence plan was rejected where the record on appeal had been settled without any transcript from an earlier review hearing, at no point did the mother attempt to provide the appellate court with a narrative of that proceeding in the trial court, and as a result it could not be said that she had done all that she could do to reconstruct the missing transcript. In re L.B., 184 N.C. App. 442, 646 S.E.2d 411 (2007).

Proceedings under former G.S. 7A-636 (see now this section) are to be reported as other "civil trials" in accordance with G.S. 7A-198. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Legislative Intent. - Although G.S. 7B-1109 does not specifically require the trial court to affirmatively state in its order terminating parental rights that the allegations of the petition were proved by clear and convincing evidence, this section does require such a statement, and without such an affirmative statement the appellate court is unable to determine if the proper standard of proof was utilized for its ruling on parental termination. In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000).

When construing this section and 7B-1109(f) together to determine legislative intent, like this section, G.S. 7B-1109(f) requires the trial court to affirmatively state in its order the standard of proof utilized in the termination proceeding. In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000).

The statutory use of "shall" is a mandate to trial judges requiring them to affirmatively state that the allegations of the juvenile petition are proved beyond a reasonable doubt. Failure to follow the mandate of the statute is error. In re Wade, 67 N.C. App. 708, 313 S.E.2d 862 (1984).

If the judge finds that the allegations in the petition have been proved, as provided in G.S. 7A-635 (see now G.S. 7B-805 and 7B-2409), i.e., beyond a reasonable doubt, he shall so state. The failure of the trial judge to follow the clear mandate of the statute is error. In re Johnson, 76 N.C. App. 159, 331 S.E.2d 756 (1985).

It is reversible error for a trial court to fail to state affirmatively that an adjudication of delinquency is based upon proof beyond a reasonable doubt. In re Walker, 83 N.C. App. 46, 348 S.E.2d 823 (1986).

The order of the trial judge must affirmatively state that the allegations are proved beyond a reasonable doubt, even in cases where the juvenile admits the offense alleged. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

The statutory use of the word "shall" mandates trial judges to affirmatively state that the reasonable doubt standard was followed. Failure of the trial judge to follow the clear mandate of the statute is error. In re Mitchell, 87 N.C. App. 164, 359 S.E.2d 809 (1987).

Procedural Requirements. - Nothing in G.S. 7B-807(a) allowed the trial court to hold a ruling on an allegation in a petition alleging abuse, neglect, or dependency in abeyance, as the trial court attempted to do in this instance; when a trial court was required to adjudicate allegations of abuse, neglect, or dependency, it must either adjudicate the juvenile as abused, neglected, or dependent if the allegations were proven by clear and convincing evidence or dismiss the allegation if the necessary evidentiary showing was not made. In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).

Trial court lacked subject matter jurisdiction after periodic judicial reviews were discontinued to adjudicate juveniles as abused, neglected, or dependent when a director of social services (DSS) sought court action based on a new report of abuse, neglect, or dependency without the prior filing of a verified petition by the DSS. Moreover, the trial court could not proceed directly to a dispositional hearing without first conducting an adjudicatory hearing and actually adjudicating the juveniles as abused, neglected, or dependent. In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Stipulations. - At best, a mother entered into a stipulation where the trial court read facts into the record noting that a child tested positive for morphine at birth and that the mother had used illegal substances during her pregnancy, and the mother then agreed to those facts under oath. In re L.G.I., 227 N.C. App. 512, 742 S.E.2d 832 (2013).

Binding Effect of Order Failing to State Standard of Proof When Not Appealed. - A trial court's failure to state the standard of proof used in making a determination of abuse or neglect constitutes error. However, because no appeal was taken or other relief sought from trial court's failure to state the standard of proof used in an order adjudging respondent's children abused and neglected, it remained a valid final order which was binding in a later proceeding on the facts. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Estoppel to Relitigate Issue Decided in Previous Proceeding. - The trial court did not err by concluding that petitioner was authorized to file petition to terminate parental rights, nor by ruling that the parties were estopped from relitigating abuse and neglect issues decided in previous proceeding in which respondent was found to have sexually abused his children, where the trial court did not rely solely upon the previous order in a way that would have impermissibly predetermined the outcome of the termination hearing, and did not deny respondent the opportunity to present evidence relevant to these issues, but merely prohibited the parties from relitigating whether respondent had, in fact, sexually abused his children. In re Wheeler, 87 N.C. App. 189, 360 S.E.2d 458 (1987).

Adjudication Supported by Evidence - Trial court's finding of abuse and neglect were based on clear and convincing evidence where three physicians, two of whom were experts in the area of child abuse, testified that the juvenile was the victim of Munchausen syndrome by proxy, a form of child abuse with a substantial risk of morbidity and even mortality, possibly induced by the mother either smothering the juvenile or administering a toxin. In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).

In a case where there was an adjudication of dependency, neglect, and abuse, any error in the admission of the child's hearsay statements was harmless because the other evidence alone supported a finding of dependency and neglect. The evidence at trial clearly showed (1) the mother violated a safety plan by leaving the child alone with men who were alleged to be sexually abusing her; (2) an examining doctor found extensive eroding dental caries going into the gums and a one-inch linear scar on the child's lower leg that was opined to be inflicted by the mother with either a shoe, a stick with thorns, or the metal part of a belt; (3) the mother called the child a "whore" and a "bitch" and further stated that the child was no longer her daughter and that she was on her own and no longer had a mother; and (4) expert testimony that the child displayed symptoms of anxiety, anger, disassociation, and post-traumatic stress disorder. In re M.G.T.-B., 177 N.C. App. 771, 629 S.E.2d 916 (2006).

Termination of a mother's parental rights to her two minor children was upheld on appeal where the unchallenged findings of fact made by the trial court established by clear, cogent, and convincing evidence in the record that the mother had willfully left her children in foster care without making reasonable progress to correct the conditions that led to their placement. The findings supporting that conclusion included: the children were in foster care for over 12 months; the mother missed seven out of eleven appointments and failed to complete a substance abuse treatment program; missed five out of ten parenting classes; tested positive for drugs several times; failed to establish a permanent residence and had been moving around from family and friends for a total of eight separate residences; failed to obtain employment; and failed to stay in contact with the Department of Social Services. In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008).

Infant child sustained a torn lingual frenulum and multiple bone fractures, which were serious injuries inflicted by other than accidental means, which supported the conclusion that the child was abused; the finding that the parents were responsible was appropriate, as they were the sole caretakers. In re R.S., 254 N.C. App. 678, 802 S.E.2d 169 (2017).

District court properly adjudicate one child as abused and both children as neglected where the evidence showed that the mother admitted to the detective that she had sent a pornographic photo of one child to her aunt, claiming her bother took the photos, while the detective determined that the mother had taken them. In re N.K., - N.C. App. - , - S.E.2d - (Oct. 20, 2020).

Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Trial court properly adjudicated a child as neglected and dependent because its findings that the child suffered from post-traumatic stress disorder as a result of matters he witnessed while in the mother's care and that he regressed in treatment following visits with the mother were supported by clear and convincing evidence; considered with the unchallenged findings regarding drug abuse and domestic violence in the home, those findings demonstrate the environment resulted in harm to the child. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Evidentiary Standard. - Trial court's order that stated that it was concluding "through clear, cogent, and convincing evidence" that the mother had abused and neglected her child sufficiently stated the standard of proof, as statutory law did not require that the standard of proof be set forth in any specific form, and, thus, recitation of the standard in the order was acceptable. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).

Trial court's findings in abuse and neglect case against mother which recited little more than a recitation of the allegations that the county social services department made against her and restated some testimony given at a related hearing were not proper "ultimate findings of fact," and, thus, a remand of the case from the appellate court was required so that the proper findings could be made. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).

County department of social services did not satisfy its burden of proving the allegations in its juvenile petitions by clear, cogent, and convincing evidence under G.S. 7B-1109 because the subject children were not neglected juveniles under G.S. 7B-101(15), nor dependant juveniles under G.S. 7B-101(9); the trial court in its ruling properly entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children during a domestic disturbance; (2) the parents' three oldest children left their residence with the father, but no kidnapping was reported, and an Amber Alert was not issued; (3) the district attorney's office dismissed the charges against the father for communicating threats to and assault by pointing a gun at the mother; and (4) the father was not in possession of a gun when he was arrested. In re H.M., 182 N.C. App. 308, 641 S.E.2d 715 (2007).

Findings Not Proven by Clear Evidence. - Court reversed a trial court's order adjudicating a mother's children as neglected under G.S. 7B-101(15) because the county department of social services did not present any evidence by which the trial court could have made any findings of fact or conclusions of law as required by G.S. 7B-807, and nevertheless, the trial court entered certain findings of fact, one of which recited verbatim the summary of the department's intervention, which report had not been introduced into evidence; thus, the trial court erred by entering findings of fact not proven by clear, cogent, and convincing evidence, as required by G.S. 7B-805, and a new trial was ordered. In re A.W., 164 N.C. App. 593, 596 S.E.2d 294 (2004).

trial court erred in adjudicating a child as dependent and placing her in the custody of the a social service agency because, while the trial court acknowledged that the father's paternity had been established, it made no findings and the agency made no allegations and presented no evidence that the father, although a minor, was unable to provide or arrange for the care and supervision of the child. In re V.B., 239 N.C. App. 340, 768 S.E.2d 867 (2015).

Trial court erred in adjudicating children to be neglected and dependent juveniles because the parties did not stipulate to any adjudicatory facts as the adjudication was supported solely by two written reports submitted by a county department of social services (DSS) at the hearing. Therefore, the trial court's findings of fact consisted of recitations from the facts alleged in the petitions and wholesale incorporation of reports prepared by the DSS. In re K.P., 249 N.C. App. 620, 790 S.E.2d 744 (2016).

Evidence Did Not Support Finding of Abuse. - Trial court's detailed findings of fact, including that the doctors noted in medical records that the infant was a healthy, well-cared-for, three-month-old baby and that respondents were at all times forthcoming and cooperative in the investigation and did not delay in seeking medical attention, did not support the conclusion that respondents inflicted or allowed the infliction of the infant's injuries. That respondents could not explain the injury did not necessitate a finding of abuse In re K.L., - N.C. App. - , 845 S.E.2d 182 (2020).

Findings Improperly Incorporated Allegations of Petition. - Trial court improperly incorporated the allegations from the juvenile petition as its findings of fact under G.S. 7B-807(b) in its adjudication of the child's neglect or dependency due to the mother's absence from home. The trial court also erred in failing to address visitation as required by G.S. 7B-905(c). In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).

Trial court met the requirements of this section by stating the standard used at the adjudication stage of the proceeding; he was not also required to recite that his decision at the disposition stage of the proceeding was discretionary. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Trial court properly adjudicated a mother's son as a neglected child because the trial court's order stated that it made its conclusion through clear, cogent, and convincing evidence, which was sufficient to meet the requirement of G.S. 7B-807. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), review denied, 362 N.C. 681, 669 S.E.2d 740 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361 (2009).

Late Filing of Adjudication and Disposition Orders Not Grounds for Reversal Where No Prejudice. - Court's failure to file child neglect adjudication and disposition orders within 30 days as required under respectively, G.S. 7B- 807(b) and G.S. 7B-905(a), was not grounds for reversal because the mother could not show how she was prejudiced by the late filing. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).

Failure to Timely Hold Hearing Not Grounds for Reversal. - Trial court's failure to timely hold the hearing required by G.S. 7B-807(b) did not necessitate reversal because the mother failed to show that the mother was prejudiced by the trial court's failure; neither the mother's visitation with the child nor the mother's rights to appeal were affected. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008).

Violation of Time Limit. - New trial was required where the trial court violated the statutory time limit set out in G.S. 7B-807(b) for the writing, signing, and entering of an adjudicatory order because the fathers of the two subject children were prejudiced by the delay. In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).

Mandamus Proper Remedy for Violation of Time Limit. - In appeals from adjudicatory and dispositional orders in which the alleged error is the trial court's failure to adhere to statutory deadlines set forth in G.S. 7B-807(b) and 7B-905(a), such error arises subsequent to the hearing and therefore does not affect the integrity of the hearing itself; thus, a new hearing serves no legitimate purpose, does not remedy the error, and only exacerbates the error and causes further delay. Instead, a party seeking recourse for such error should petition for writ of mandamus pursuant to N.C. R. App. P. 22(a). In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).

Trial court committed no prejudicial error where the court's failure to comply with G.S. 7B-807(b) and G.S. 7B-905(a) occurred after a dispositional and adjudicative hearing, and the three-month delay in entry of the order of adjudication and disposition could not have been remedied by a new hearing. The proper remedy would have been to seek a writ of mandamus pursuant to N.C. R. App. P. 22(a) to compel the trial court to enter the order. In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).

Adjudication and Disposition Order a Nullity. - Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge's oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Applied in In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); State v. Rivens, 198 N.C. App. 130, 679 S.E.2d 145 (2009).

Cited in In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003); In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004); In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006); Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007); In re J.L., 183 N.C. App. 126, 643 S.E.2d 604 (2007); In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007); Robertson v. Steris Corp., 237 N.C. App. 263, 765 S.E.2d 825 (2014); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re K.M.M., 242 N.C. App. 25, 774 S.E.2d 430 (2015); In re J.S.C., 253 N.C. App. 291, 800 S.E.2d 126 (2017); In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017).

CASE NOTES

Continuance at Request of Juvenile. - Former G.S. 7A-639 (see now G.S. 7B-808 and 7B-2413) and former G.S. 7A-640 (see now G.S. 7B-901 and 7B-2501) make clear the legislative intent that the dispositional hearing must be continued for the juvenile respondent to present evidence when he requests such a continuance. This is particularly so in light of the provision of former G.S. 7A-632 (see now G.S. 7B-803 and 7B-2406) that "The judge may continue at any time any case to allow additional factual evidence, social information or other information needed in the best interest of the juvenile or in the interest of justice." In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979), decided prior to enactment of this Chapter.

Court's Order Upheld in Spite of Absence of Required Information. - The court rejected the defendant's contention that the juvenile court erred in making its dispositional order because it had insufficient social, medical, psychiatric, psychological, and educational information regarding the juvenile, under former 7A-639, where the juvenile and his parents refused to participate in any assessments with the court counselor either before or after the adjudicatory hearing. In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689 (2000).

Trial Court Did Not Improperly Consider Dispositional Evidence. - Trial court did not improperly consider dispositional evidence in determining whether minor children were abused and neglected, because there was substantial evidence upon which the trial court could conclude the minor children were abused and neglected, and, in the judgment, the trial court rendered one set of findings of fact; thereafter, in the same judgment, the trial court rendered its adjudicatory and dispositional conclusions of law. Thus, the findings of fact were used to support both the adjudication and dispositional orders. In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584 (2004), appeal dismissed, - N.C. - , 603 S.E.2d 884 (2004).

Applied in In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Purpose of Juvenile Code. - The stated purpose of the North Carolina Juvenile Code is to avoid commitment of the juvenile to training school (now youth development center) if he could be helped through community-level resources. In re Hughes, 50 N.C. App. 258, 273 S.E.2d 324 (1981).

Discretion of Court. - It was the legislature's intention that the district courts exercise sound discretion in fashioning an appropriate response to each particular instance of delinquency. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).

Duty of District Court. - It is the constant duty of the district court to give each child subject to its jurisdiction such oversight and control as will conduce to the welfare of the child and to the best interest of the State, and to ensure that the juvenile be carefully afforded all constitutional safeguards at every stage of the hearings. In re Eldridge, 9 N.C. App. 723, 177 S.E.2d 313 (1970).

The court is required to consider the welfare of the delinquent child as well as the best interest of the State. In re Hardy, 39 N.C. App. 610, 251 S.E.2d 643 (1979).

What Judge Must Determine. - This section necessarily requires the judge to first determine the needs of the juvenile and then to determine the appropriate community resources required to meet those needs in order to strengthen the home situation of the juvenile. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Determination of Child's Interest. - What is or is not in the best interest of the child must be determined in tandem with the perception of the legislature as to what is in the best interest of the state as enunciated by the terms of the Juvenile Code and by its general theme as deduced from the impetus behind its enactment. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981).

Restitution Not in Children's Best Interest. - Where there was insufficient evidence before the juvenile court that the juveniles had or could reasonably acquire the means to pay $539.50 each in restitution within twelve months, it was not in their best interest to require such. In re McKoy, 138 N.C. App. 143, 530 S.E.2d 334 (2000).

Least Restrictive Disposition Must Be Selected. - In selecting among dispositional alternatives, the trial judge is required to select the least restrictive disposition, taking into account the seriousness of the offense, degree of culpability, age, prior record, and circumstances of the particular case. The judge must also weigh the State's best interest and select a disposition consistent with public safety, and within the judge's statutorily granted authority. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Court Limited to Using Available Dispositional Alternatives. - The district court's authority in juvenile dispositions is limited to utilization of currently existing programs or those for which the funding and machinery for implementation is in place. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).

When a student has been lawfully suspended or expelled pursuant to G.S. 115C-391 and the school has not provided a suitable alternative educational forum, court-ordered public school attendance is not a dispositional alternative available to the juvenile court judge, absent a voluntary reconsideration of or restructuring of the suspension by the school board to allow the student's restoration to an educational program within its system. In re Jackson, 84 N.C. App. 167, 352 S.E.2d 449 (1987).

District Court Not Authorized to Require Creation of Foster Home. - The district court is not authorized to require a county Department of Social Services, either by itself or in conjunction with another agency, to implement the creation of a foster home with appropriate staff, wherein juveniles might be permanently domiciled for program treatment and delivery of services. In re Wharton, 305 N.C. 565, 290 S.E.2d 688 (1982).

Identical Judgments Erroneous for Varying Offenses and Culpability. - The juvenile court failed to consider the express purposes of the Juvenile Code where it entered identical judgments in all six cases tried together, and in which the juveniles ranged in age from 6 to 14, were found to have committed and admitted committing different offenses, and had varying degrees of culpability. In re Register, 84 N.C. App. 336, 352 S.E.2d 889 (1987).

Applied in In re Dexter, 147 N.C. App. 110, 553 S.E.2d 922 (2001).

Cited in In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006).

CASE NOTES

Cited in In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Applicability. - Subsection (c) did not apply to the initial disposition because the trial court's order did not place the child in the custody of a county department of social services. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Evidentiary Standards - Formal rules of evidence do not apply to dispositional hearings in abuse and neglect cases. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005).

Trial court did not err in consolidating the adjudicatory and dispositional hearings for evidentiary purposes in the mother's case alleging abuse and neglect against her child, as there was no requirement that those two stages be conducted at separate hearings and the trial court still applied the proper, separate evidentiary standards, namely "clear and convincing evidence" for the adjudicatory stage and the "best interests of the child" standard for the disposition stage. In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004).

Trial court properly received various reports at a permanency planning hearing because (1) a mother did not object, waiving any contest, and (2) the North Carolina Rules of Evidence did not apply. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

What Evidence Must Be Considered. - Whenever the trial court is determining the best interest of a child, any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony. Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).

At a dispositional hearing the trial judge is not restricted to consideration of only those acts for which there had been an adjudication. If the information presented is determined by the trial judge to be reliable, accurate and competently obtained, he may properly consider it. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Evidence Properly Considered. - Trial court could be presumed to have disregarded the incompetent evidence because the trial court made no findings pertaining to hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation, and the trial court was authorized to consider the hearsay evidence and other evidence to show propensity in its dispositional order. In re A.L.T., 241 N.C. App. 443, 774 S.E.2d 316 (2015).

Trial court did not abuse its discretion by ceasing reunification efforts because its findings made clear that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Trial court did not abuse its discretion by ceasing reunification efforts because its findings made clear that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child's health, safety, and need for a safe, permanent home within a reasonable period of time. In re S.R.J.T., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Corroborative Evidence Properly Excluded. - Trial court did not err under G.S. 7B-901 by excluding corroborative evidence from the mother's sister, regarding statements made by the minor child about abuse by her father, which merely supported the testimony of the mother; additionally, the transcript was abounding with testimony regarding the abuse of the child by her father. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007).

Dispositional court must make a finding that a court of competent jurisdiction has determined that the parent allowed one of the aggravating circumstances to occur, and if a trial court wishes to cease reunification efforts pursuant to one particular subsection, it must make findings at disposition that a court of competent jurisdiction has already determined that the parent allowed the continuation of chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).

Trial courts may properly consider all written reports and materials submitted in connection with dispositional proceedings. In re Shue, 63 N.C. App. 76, 303 S.E.2d 636 (1983), modified, 311 N.C. 586, 319 S.E.2d 567 (1984).

Admissibility of Psychological Reports. - The clear intent of the legislature is that a hearing upon a motion for review is in the nature of a dispositional hearing rather than an adjudicatory hearing, and that the formal Rules of Evidence, G.S. 8C-1, do not apply. Therefore, the trial court could properly consider written psychological reports in determining on motion brought by parents whose parental rights had been terminated under former G.S. 7A-289.34 (see now 7B-1113), whether the needs of children would be best served by modification of its previous orders concerning visitation. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136 (1985).

Trial court did not err in considering the psychological evaluation of the mother in reaching its decision on disposition in which counseling for the child. In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006).

Emotional Damage. - Trial court did not err in its adjudicating a mother's daughter abused or in its disposition. In light of false allegations of abuse which the trial court found the mother made against the father, the appellate court could not conclude that the trial court erred in providing clarity in its order when it identified the mother as the parent who created or allowed to be created serious emotional damage. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).

Consideration of Unadjudicated Acts Unrelated to Petition. - Trial courts giving consideration at a dispositional hearing to unadjudicated acts allegedly committed by a juvenile, unrelated to that for which he stands petitioned, must first determine that such information is reliable and accurate and that it was competently obtained. This does not mean that a full "trial" must be held to make the required determination about the unrelated acts. The trial court should have wide discretion in making the required determination from the sources available to it, but it must make the determination. In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979).

This section permits the use of unadjudicated acts as evidence to be considered for disposition. In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983).

Cross-Examination as to Prior Unadjudicated Acts Not Irrelevant. - Cross-examination of juvenile at dispositional hearing about twice running away from county receiving home was not irrelevant merely because the acts about which she was questioned occurred prior to the delinquent act for which she was placed on probation and nothing in the record indicated that she had been adjudicated undisciplined for these acts. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Effect of Failure to Hold Hearing. - Where the judge held no dispositional hearing and denied juvenile the opportunity to present evidence as to disposition, and there was no evidence to support the findings made by the judge with respect to disposition, commitment order would be reversed so that the court could conduct a dispositional hearing. In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981).

Required Findings. - Trial court made no finding that a court of competent jurisdiction has already determined that the parent allowed the continuation of chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile; the specific findings related to the child's exposure to controlled substances were not sufficient to sustain an ultimate finding under the statute and the trial court erroneously concluded that reasonable reunification efforts had to cease. In re G.T., 250 N.C. App. 50, 791 S.E.2d 274 (2016), aff'd, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (N.C. 2017).

No Findings When Statute Did Not Apply. - Order contained no findings under G.S. 7B-901(c) as that subsection did not apply since the child was not placed in department of social services custody; thus, when establishing permanent plans, the trial court was required to make reunification a primary or secondary plan and require reunification efforts unless it found they would be unsuccessful or inconsistent with the child's health or safety, and it could make that finding even though it was the first hearing. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Court erred in ordering an infant placed in guardianship because homelessness and joblessness did not per se support an abuse or neglect finding; but the court committed no error in admitting social services and guardian ad litem reports or alleged hearsay where the objection to the hearsay was unpreserved. In re Ivey, 156 N.C. App. 398, 576 S.E.2d 386 (2003).

Continuance at Request of Juvenile. - Former G.S. 7A-639 (see now G.S. 7B-808) and former G.S. 7A-640 (see now G.S. 7B-901) made clear the legislative intent that the dispositional hearing must be continued for the juvenile respondent to present evidence when he requests such a continuance. This is particularly so in light of the provision of former G.S. 7A-632 (see now G.S. 7B-803 and 7B-2406) that "The judge may continue at any time any case to allow additional factual evidence, social information or other information needed in the best interest of the juvenile or in the interest of justice." In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979); In re Lail, 55 N.C. App. 238, 284 S.E.2d 731 (1981).

Burden on Parents and Department. - The language of G.S. 7A-640 (repealed, see now this section) and G.S. 7A-657 (see now 7B-906; repealed, see now G.S. 7B-906.1) does not place any burden of proof upon either the parents or Department of Social Services during the dispositional hearing or the review hearing. The essential requirement at the dispositional hearing and the review hearing is that sufficient evidence be presented to the trial court so that it can determine what is in the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).

Evidence of Neglect Obtained From Agency and Guardian Ad Litem Reports Properly Admitted. - Despite an appellate court's determination that several of the trial court's findings of fact were not supported by clear, cogent, and convincing evidence in a neglect and abuse case, it also found that several findings of fact were so supported and provided sufficient evidence to uphold the neglect and abuse adjudication of a mother's infant child based on the mother's (1) whereabouts to have been unknown upon the baby's discharge from the hospital, (2) testing positive for marijuana since the adjudication hearing, (3) refusal to attend several substance abuse assessments, (4) failure to make progress on her psychological problems, and (5) abuse and neglect adjudication regarding an older daughter; the trial court did not err by admitting the evidence of the DSS and guardian ad litem's reports, because the formal rules of evidence did not apply to dispositional hearings. In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813 (2005); In re C.B., 171 N.C. App. 341, 614 S.E.2d 579 (2005).

Prejudice Not Shown. - Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901, G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Reunification Efforts. - In an adjudication, disposition, and permanency planning order concluding that the son was an abused juvenile, the trial court erred in relieving the county department of social services from making further reunification efforts following the initial disposition hearing because the trial court's disposition did not contain any finding indicating that a previous court had determined one of the aggravating factors in this statute was present. In re J.M. & J., 255 N.C. App. 483, 804 S.E.2d 830 (2017), appeal dismissed, 808 S.E.2d 442, 2018 N.C. LEXIS 9 (N.C. 2018).

Erroneous Adjudication. - Because the district court's erroneous adjudication directly resulted in the dismissal of the petition regarding the boys, an appropriate disposition order for the three boys was to be entered on remand. In re Q.A., 245 N.C. App. 71, 781 S.E.2d 862 (2016).

Conducting Adjudications, Dispositional, and Permanency Planning Hearings on Same Day. - Trial court properly ceased reunification efforts between the child and his mother because the General Assembly had not proscribed conducting adjudications, dispositional, and permanency planning hearings on the same day, and the trial court did not err in doing so. In re C.P., 258 N.C. App. 241, 812 S.E.2d 188 (2018).

Adjudication and Disposition Order a Nullity. - Since only a stipulation without any adjudication or rendering of the order, any action by the chief district court judge to cause a later prepared and unsigned draft order to be entered was ministerial; the written disposition portion of the order went beyond the retired judge's oral recitations, and because rendering and entering judgment was more than a ministerial task, the chief district court judge had no authority to sign the adjudication and disposition orders, which were a nullity. In re R.P., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005); In re P.T.W., 250 N.C. App. 589, 794 S.E.2d 843 (2016); In re T.P., 254 N.C. App. 286, 803 S.E.2d 1 (2017).

Cited in In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003), appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re P.S., 242 N.C. App. 430, 775 S.E.2d 370 (2015); In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017); In re I.K., 250 N.C. App. 547, 818 S.E.2d 359 (2018).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

The medical evaluation of juveniles is of critical importance in proceedings involving allegations of abuse and neglect under the Juvenile Code. In re Hayden, 96 N.C. App. 77, 384 S.E.2d 558 (1989).

The provision in subsection (6) of former G.S. 7A-286 that a juvenile judge may not commit a child directly to a mental institution was clearly designed to prevent conflicts with various statutes under former Chapter 122. In re Mikels, 31 N.C. App. 470, 230 S.E.2d 155 (1976).

Former Chapter 122 was written to provide constitutional defense, procedural, and evidentiary rules. To allow juvenile judges to commit minors to mental institutions with a lesser standard than that set forth in former Chapter 122 would subject such commitments to constitutional challenge as a deprivation of liberty without due process of law. In re Mikels, 31 N.C. App. 470, 230 S.E.2d 155 (1976).

The determination of "best interest" under former G.S. 7A-647(2)c. is a conclusion because it requires the exercise of judgment; appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

If the trial court uses the best interest of the child standard to award custody of a child to a parent, any misapplication of the constitutional presumption that a biological parent is a fit and proper person to exercise custody of her minor children pursuant to Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), is without consequence. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

"Cost of care" does not include counsel fees for juvenile, which are governed by G.S. 7A-588 (see now G.S. 7B-603, 7B-2002). In re Wharton, 54 N.C. App. 447, 283 S.E.2d 528 (1981).

Disposition on Review of Custody Order. - During the review hearing of a trial placement pursuant to G.S. 7A-657 (see now G.S. 7B-906; repealed, see now G.S. 7B-906.1), the trial court may, in its discretion, order the implementation of any dispositional alternative listed in former G.S. 7A-647. However, if the trial court does not dismiss the case or continue the case pursuant to former G.S. 7A-657(1), then G.S. 7A-657 (see now G.S. 7B-906; repealed, see now G.S. 7B-906.1) limits the trial court's options to entry of an order continuing the placement, or entry of an order restoring custody of the child to the parent(s) from whom custody was taken, whichever is deemed to be in the best interest of the child. In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984).

Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) (see now G.S. 7B-904, 7B-2702, 7B-2704) only authorizes the district court to order the parent of a juvenile adjudicated as delinquent, undisciplined, abused, neglected, or dependent to participate in medical, psychiatric, psychological or other treatment ordered for the juvenile pursuant to former G.S. 7A-647(3). Former G.S. 7A-650(b1) does not authorize the court to order a juvenile's parent to otherwise submit to medical, psychiatric, psychological or other assessment or treatment. In re Badzinski, 79 N.C. App. 250, 339 S.E.2d 80, cert. denied, 317 N.C. 703, 347 S.E.2d 35 (1986).

Evidence of prior neglect which led to an adjudication of neglect shows circumstances as they were and therefore is relevant to whether a change of circumstances has occurred since the court's order. In re Brenner, 83 N.C. App. 242, 350 S.E.2d 140 (1986).

Standard of Proof for Termination and Removal Distinguished. - There is a substantive difference between the quantum of adequate proof of neglect and dependency for purposes of termination and for purposes of removal. The most significant difference is that while parental rights may not be terminated for threatened future harm, the Department of Social Services may obtain temporary custody of a child when there is a risk of neglect in the future. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

Authority to Place Child in Custody of DSS. - Under former G.S. 7A-647, once a minor is adjudicated neglected, a judge has the authority to place the child in the custody of the Department of Social Services. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987); In re Kennedy, 103 N.C. App. 632, 406 S.E.2d 307 (1991).

Trial court did not err in placing the minor child in the custody of the county social services department despite the father's contention that the minor child could have been placed with relatives; no showing was made that suitable relatives existed, especially since the father's paternity was at issue, and thus placement with the paternal grandparents as suggested by the father might not be in the best interests of the minor child since the minor child might find that they were not the minor child's relatives after all. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Subsection (a)(6) was not available to be invoked in a termination of parental rights case because at all times during the matter, a child was found in New Hanover County, North Carolina, and North Carolina was her home state. In re N.P., - N.C. - , - S.E.2d - (Mar. 12, 2021).

The task at the temporary custody or removal stage is to determine whether the child is exposed to a substantial risk of physical injury because the parent is unable to provide adequate protection. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

Court Must Consider Pertinent Factors Before Ordering Commitment. - Where the trial court's findings did not sufficiently address the needs of the juvenile, such as medical or psychological evaluation, school records, home evaluation, or a history of parental neglect, and the court's order did not contain sufficient findings as to community resources that might be appropriate as noncustodial alternatives to commitment, case would be remanded for further consideration of these pertinent factors. In re Cousin, 93 N.C. App. 224, 377 S.E.2d 275 (1989).

A finding of fact that mother was a fit and proper person to have custody of her child did not compel the conclusion that custody should be awarded to her, where the court also found that the best interests of the child required that custody remain in others with whom the child was placed following a finding of dependency. In re Yow, 40 N.C. App. 688, 253 S.E.2d 647, cert. denied, 297 N.C. 610, 257 S.E.2d 223 (1979).

Attempt to Teach Mentally Retarded Child at Home. - Trial court did not err in finding that 15 year old with an IQ of 41, who had been taken out of public school and was being taught at home by his father, was neglected, in granting legal custody to the Department of Social Services, and in ordering the child to be returned to public school. In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987).

Where neglected juvenile's custody changes to non-custodial parent, if a trial court determines such disposition to be in the best interests of the child, G.S. 7B-903, there is no burden of proof at the dispositional hearing; the trial court must only consider the best interests of the child. Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

Removal of Child Upheld. - Evidence held sufficient to show that seven-year old child was exposed to a substantial risk of physical injury because of her mother's inability to maintain secure living arrangements for her, so as to permit the Department of Social Services to remove her from her mother's custody until such accommodations could be provided. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

It was in child's best interest to continue in the custody of DSS pending mother's compliance with reunification measures where the child had lived in an environment injurious to her welfare, and where mother failed to comply with DSS's efforts to prevent removal. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Trial court did not err in finding that returning children to their parents' custody would be contrary to their health, safety and welfare. because the trial court's findings of fact clearly established the children lived in an environment that was injurious to their welfare given that the father and mother failed to take the children for medical treatment and inappropriately disciplined one of the children; returning the children to the parents' home was not in the children's best interests. In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).

Modification Upheld. - Where court had previously deemed it in the best interest of minor children who had been adjudicated neglected that mother comply with certain orders of the court, the court acted with full statutory authority when it later conducted a hearing upon social worker's subsequent motion and determined that mother's refusal to cooperate with community-level services and orders applicable to her constituted a "change of circumstances" affecting the best interest of the children, sufficient to require modification of prior custody orders. In re Brenner, 83 N.C. App. 242, 350 S.E.2d 140 (1986).

Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901, G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Placement with Parent. - Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

Award of Custody to Foster Parents. - Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, cert. denied, 318 N.C. 415, 349 S.E.2d 589 (1986).

Placement With Relatives. - When, in a dependency proceeding, a trial court placed a child's custody with the child's foster parents without finding it was contrary to the child's best interests to place her with willing relatives, pursuant to G.S. 7B-903(a)(2)c, this was error as: (1) this statutory requirement applied to the review hearing at which the trial court entered its custody order because G.S. 7B-906 (repealed, see now G.S. 7B-906.1), which governed the hearing, incorporated dispositional alternatives in G.S. 7B-903, which gave priority to placing a child with a suitable relative; (2) 42 U.S.C.S. § 671(a)(19) required that, as a condition for receiving federal foster care funds, a state had to have a foster care plan that gave preference to placement with a relative; (3) G.S. 7B-505 required the trial court, in entering a nonsecure custody order, to first consider the child's placement with a relative, and G.S. 7B-506(h) continued this requirement at each hearing to determine the need for the child's continued custody outside of her home, so the general assembly intended to apply this requirement to reviews of custody placements; and (4) exempting review hearings from the requirement to first consider placement with relatives risked undermining the Interstate Compact on the Placement of Children (ICPC), G.S. 7B-3800, as home studies of out-of-state relatives required by the ICPC were often not completed until a review hearing was held. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005).

Trial court did not err by awarding joint legal custody to a child's father and her maternal aunt and uncle under G.S. 7B-907(f) (repealed, see now G.S. 7B-906.1) because according to the plain language of former G.S. 7B-907(c) and G.S. 7B-903(a), there was no prohibition on an award of joint legal custody to both a relative and a parent. In re B.G., 197 N.C. App. 570, 677 S.E.2d 549 (2009), dismissed 701 S.E.2d 324, 2010 N.C. App. LEXIS 2020 (N.C. Ct. App. 2010).

Pursuant to G.S. 7B-3800 and G.S. 7B-903(a)(2)(c), a trial court's dispositional order that placed a juvenile with her maternal great-grandmother in South Carolina, despite the lack of approval of the great-grandmother's home by South Carolina authorities, violated the Interstate Compact on the Placement of Children. In the Matter of V.A., 221 N.C. App. 637, 727 S.E.2d 901 (2012).

Trial court properly declined to place a mother's children with relatives because it was apparent from the court's exhaustive findings of fact that (1) the court considered several relative placements but no suitable option was available, and, (2) where potentially available, the court considered it not in the children's best interests to place the children with the relative. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Trial court erred in granting guardianship of a father's child to a non-relative because the father had standing to raise the issue on appeal inasmuch as the paternal grandmother was never a party in the juvenile case, the father was asserting his own interest to have the court consider a potentially viable relative placement for the child before granting guardianship to a non-relative, the question of whether the grandmother should have been given priority placement consideration over a non-relative had never been addressed by the court, the trial court specifically found that both parents opposed appointing a non-relative guardian for the child and wished for the child to be placed with her grandmother if the court determined she could not return to their home. In re D.S., 260 N.C. App. 194, 817 S.E.2d 901 (2018).

Because the county department of human services (DHS) had not received notification of the proposed placement of the children from the appropriate Arizona agency prior to entry of the permanency planning order their aunt and uncle in Arizona, the trial court was not authorized to award custody of the children to their aunt and uncle in Arizona; the Interstate Compact on the Placement of Children required that Arizona notify DHS the proposed placement of the children did not appear to be contrary to their interests. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).

There was not an appropriate relative placement available for the children, as the uncontroverted evidence and findings established that a maternal great aunt and a half-sister were not able to provide proper care and supervision of the juvenile in a safe home. In re N.K., - N.C. App. - , - S.E.2d - (Oct. 20, 2020).

Failure to Consider Placement with Relatives. - Trial court was statutorily required to consider and place the child with a family member, who was willing and able to provide a safe home for her, before consideration of a juvenile's placement with a nonrelative and the court erred when it disregarded the grandmother's and father's wishes and proceeded to order guardianship with a nonrelative. In re A.N.T., - N.C. App. - , 845 S.E.2d 176 (2020).

Placement With Non-Relatives. - Trial court did not abuse its discretion by placing a mother's children in a non-relative placement because either no suitable relative was available or it was not in the children's best interests to place them with a relative, and reunification efforts would be inconsistent with their health, safety and need for a permanent home within a reasonable period of time. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Authority To Order Treatment. - The trial court acted within the scope of former G.S. 7A-647(3) when it ordered the County to pay the costs of a juvenile's care in an existing institution after considering all alternative programs presented to the court and their relative costs. In re D.R.D., 127 N.C. App. 296, 488 S.E.2d 842 (1997).

District Court Not Authorized to Require Creation of Foster Home. - The district court is not authorized to require a county department of social services, either by itself or in conjunction with another agency, to implement the creation of a foster home with appropriate staff, wherein juveniles might be permanently domiciled for program treatment and delivery of services. In re Wharton, 305 N.C. 565, 290 S.E.2d 688 (1982).

Dispositional Alternatives. - While a trial court had the authority under G.S. 7B-906 (repealed, see now G.S. 7B-906.1) to issue a dispositional order in a child custody case, and while that court had had the authority under G.S. 7B-906(g) (repealed, see now G.S. 7B-906.1) to place custody of the child with someone other than a parent, the court erred in giving physical custody to the mother but ordering the child's "physical placement" to be with her maternal grandfather. G.S. 7B-903(a) specified the dispositional alternatives that were available in a custody matter, a "physical placement" with someone who did not have custody was not a permissible alternative under G.S. 7B-903(a), and G.S. 7B-906(g) (repealed, see now G.S. 7B-906.1) contemplated that the person with whom the child was to live was a person who had custody of the child. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Finding of Proper Care and Supervision. - Before returning a child to the custody of a parent from whose custody the child is originally taken, a trial court must find that the child will receive from that parent the proper care and supervision in a safe home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Change of Custody Improper. - Given that the department of social services was prohibited under G.S. 7B-903(a)(2)(c) from returning physical custody of a child, to the parent from whom the child had been taken, without a hearing in which a court found that the child would receive proper care in a safe home, as defined in G.S. 7B-101(19), a trial court erred in changing custody of a child from a father to the mother because the court was required to find, but did not find, that the child would receive from the mother the necessary proper care and supervision in a safe home, particularly in light of prior evidence that domestic violence had occurred in the home. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Insufficient Findings. - While a court had the power under G.S. 7B-903 to enter an order transferring the custody of a minor child from her father to her mother, there was no evidence in the record in a proceeding on the parties' cross-motions for contempt that supported the finding that transferring custody to the mother was in the child's best interests. It had been found in an earlier proceeding that the mother was abusing prescription drugs, that her husband had been physically abusing her, and that loaded weapons were kept in their home, yet in the contempt proceeding, the trial court made no findings addressing a prior adjudication in which it had been determined that the child was neglected, and no findings were made as to whether efforts to mend the mother's relationship with her husband had been resolved. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).

Trial court erred by placing children in the custody of the county department of social services because its dispositional order failed to contain a finding required for the adoption of one of the dispositional alternatives outlined in G.S. 7B-903(a)(2); G.S. 7B-903(a) requires that a finding that the juvenile needs more adequate care or supervision or needs placement be made as a precondition for the adoption of one of the dispositional alternatives outlined in G.S. 7B-903(a)(2). In re S.H., 217 N.C. App. 140, 719 S.E.2d 157 (2011).

Applied in In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).

Cited in In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re J.V., 198 N.C. App. 108, 679 S.E.2d 843 (2009); In re P.O., 207 N.C. App. 35, 698 S.E.2d 525 (2010); In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015); In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015).

Opinions of Attorney General

Editor's Note. - The opinions below were rendered prior to enactment of this Chapter.

Conflicting Provisions. - Former G.S. 7A-647(2), as amended by Session Laws 1985, c. 777, appeared on its face to be in conflict with 20 U.S.C. § 1415 and with G.S. 115C-106 (repealed), 115C-114 (repealed), and former 115C-116 (repealed), to the extent that it authorizes the county director of social services to make educational decisions for a handicapped child in the custody of a department of social services. This apparent conflict should be resolved by giving full effect to 20 U.S.C. § 1415. See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).

The provisions of Article 9, Chapter 115C should be considered as an exception to the provisions of former G.S. 7A-647(2)c to the extent those statutes are in conflict. See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).

Duration of Child Custody by County Social Services Department. - See opinion of Attorney General to Mrs. Margaret H. Coman, 40 N.C.A.G. 311 (1970), rendered under former G.S. 7A-286.

Articles 4 and 5A of former Chapter 122 did not revoke the authority which subdivision (6) of former G.S. 7A-286 vested in a district court judge exercising juvenile jurisdiction to secure placement of a juvenile needing residential care and treatment for mental impairment to an appropriate facility. See opinion of Attorney General to Mr. R. Patterson Webb, Division of Mental Health, Department of Human Resources, 43 N.C.A.G. 163 (1973), rendered under former G.S. 7A-286.

Section Does Not Authorize District Court Judge to Commit Juvenile to Center for Mentally Retarded. - See opinion of Attorney General to Dr. Ann F. Wolfe, Division of Mental Health Services, 44 N.C.A.G. 126 (1974), rendered under former G.S. 7A-286.

Educational Interests of Handicapped Child. - In those situations where the parents of a handicapped child are unavailable or unknown and the child is a ward of the State, the responsibility and authority for representing that child's educational interests rests with a surrogate parent, and not with the county director of social services. Further, former G.S. 115C-116(c) (repealed) and 20 U.S.C. § 1415(b)(1)(B) prohibit the county director of social services or any employee of a department of social services involved in the education or care of such child from serving as a surrogate parent in such circumstances. See opinion of Attorney General to Mr. Johnnie Ellerbe, Consultant, Division for Exceptional Children, State Department of Public Instruction, 55 N.C.A.G. 94 (1986).

CASE NOTES

Editor's Note. - Many of the following cases were decided prior to the enactment of this Chapter.

Construction In Relation to Termination. - G.S. 7B-904(d1)(3) and G.S. 7B-906.1 appear to contemplate an ongoing examination of the circumstances that surrounded the juvenile's removal from the home and the steps that need to be taken in order to remediate both the direct and the indirect underlying causes of the juvenile's removal from the parental home' the "conditions of removal" contemplated by G.S. 7B-1111(a)(2) include all of the factors that directly or indirectly contributed to causing the juvenile's removal from the parental home. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Authority of the Court. - The trial court did not have authority, pursuant to this section, to order respondent to "secure and maintain safe, stable housing and employment" nor to contact a child support enforcement department. This section is the trial court's only source of authority over the parent of a juvenile adjudicated abused or neglected, and the trial court may not order a parent to undergo any course of conduct not provided for in the statute. In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).

Pursuant to G.S. 7B-904(d1)(3), a trial court did not exceed its authority in ordering the mother to comply with its directive that the father not have any contact with the son, as the infant had suffered a severe head trauma while in the father's sole care, which could not have been attributed to the infant's having rolled off the couch, as the father claimed. In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005).

Trial court erred in ordering a father to contact the Child Support Enforcement Agency and to pay child support for the benefit of the children as G.S. 7B-904(d) did not provide the trial court with authority to order the father to contact a child support enforcement authority. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).

Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child's mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child's mother; however, further findings were required under G.S. 7B-904(d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

Trial court erred in ordering a father to obtain and maintain stable employment under G.S. 7B-904 as nothing suggested that the father's employment situation, or lack thereof, led to or contributed to the juvenile's adjudication as a neglected child. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

In a case in which the district court properly determined that the younger child was abused and that both children were neglected, the district court lacked the authority to order the mother to maintain stable housing and employment because nothing in the district court's findings of fact suggested that the mother's lack of employment or unstable housing contributed to the children's removal from her custody as the primary factors which led to the removal of the children in November 2013 were the mother's inability to provide proper care and discipline for the children, in that she abused the younger child and neglected both children. In re H.H., 237 N.C. App. 431, 767 S.E.2d 347 (2014).

Court's dispositional order requiring a child's father to maintain steady employment and obtain a domestic violence assessment and follow the assessment's recommendations did not exceed the court's authority because there was a nexus between the order's requirements and the reasons for the child's removal from the father's custody. In re T.N.G., 244 N.C. App. 398, 781 S.E.2d 93 (2015).

Trial Judge's Authority. - General Assembly clearly contemplated that, in the event that a juvenile is found to have been abused, neglected, or dependent, the trial judge has the authority to order a parent to take any step needed to remediate the conditions that "led to or contributed to" either the juvenile's adjudication or the decision to divest the parent of custody. In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019).

Participation of Parent in Assessment or Treatment. - Former G.S. 7A-650(b1) only authorizes the district court to order the parent of a juvenile adjudicated as delinquent, undisciplined, abused, neglected, or dependent to participate in medical, psychiatric, psychological or other treatment ordered for the juvenile pursuant to former G.S. 7A-647(3). Former G.S. 7A-650(b1) does not authorize the court to order a juvenile's parent to otherwise submit to medical, psychiatric, psychological or other assessment or treatment. In re Badzinski, 79 N.C. App. 250, 339 S.E.2d 80 (1986).

Former G.S. 7A-650(b1) of this section does not authorize a court to order a parent of a juvenile who has been adjudicated as dependent or neglected to submit to medical, psychiatric, psychological or other assessment or treatment. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986).

Trial court properly ordered a father to undergo a psychological evaluation, have a substance abuse assessment, and enroll in parenting classes, as it was in the children's best interest. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).

The trial court properly ordered respondent to undergo a psychological evaluation and possible treatment where the evidence indicated that she knew that her daughter was being abused by her father and lied about it. In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000).

The determination of reunification requirements is a conclusion of law because it requires the application of legal principles pursuant to former G.S. 7A-650(b2); appellate review of a trial court's conclusions of law is limited to whether they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).

Support payments ordered pursuant to former G.S. 7A-650(c) should be based on the interplay of the trial court's conclusions as to the amount of support necessary to meet the needs of the child and the ability of the parents to provide that amount. The court's conclusions should in turn be based on findings of fact sufficiently specific to show that the court gave due regard to the relevant factors in G.S. 50-13.4(c) and any other relevant factors of the particular case. When such findings are not made, the order should be vacated, because appellate courts have no means of determining whether the order is supported by the evidence and is based on the proper considerations. In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23 (1985).

Conditions Imposed on Parents Were Reasonable. - Conditions imposed on the parents of the neglected children who were removed due to domestic violence were reasonably related to aiding the parents in remedying the conditions which led to the children's removal where the parents were required to comply with the recommendations of mental health professional, medical professionals supplying prescription medications, substance abuse evaluations, drug screens and the child medical evaluation, and provide copies of deeds or leases, and employment or income records. In re A.R., 227 N.C. App. 518, 742 S.E.2d 629 (2013).

Applied in In re R.L., 186 N.C. App. 529, 652 S.E.2d 327 (2007).

Cited in In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010); In re D.L.W., 241 N.C. App. 32, 773 S.E.2d 504 (2015); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re R.R.N., 368 N.C. 167, 775 S.E.2d 656 (2015); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).

CASE NOTES

Editor's Note. - Some of the following cases were decided prior to the enactment of this Chapter.

Combined Hearing for Permanency Planning And Disposition. - Because a father did not object when the department of social services informed the trial court that the hearing was noticed on for both permanency planning and disposition, and it wanted to proceed with both, he has waived appellate review of the propriety of the combined hearing; the father received multiple notices in the weeks and months before the hearing that the trial court would be conducting a combined adjudication, disposition, and permanency planning hearing. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685 (2017).

Procedural validity of a dispositional order would be evaluated in light of the North Carolina Rules of Civil Procedure, G.S. 1A-1, and this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Agency Had Standing Under Nonsecure Custody Order. - DSS had standing to file a termination of parental rights petition as it had been granted indefinite custody of a child under a nonsecure custody order issued under G.S. 7B-506(a), and G.S. 7B-1103(a)(3) did not limit standing to parties granted custody by an order entered pursuant to G.S. 7B-905, but required only that DSS be granted custody by a court of competent jurisdiction. In re T.M., 182 N.C. App. 566, 643 S.E.2d 471 (2007).

Former G.S.7A-651 does not require the trial judge to announce his findings and conclusions in open court, mandating only that the terms of the disposition be stated in open court with "particularity." In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Late Filing of Adjudication and Disposition Orders Not Grounds for Reversal Where No Prejudice. - Court's failure to file child neglect adjudication and disposition orders within 30 days as required under respectively, G.S. 7B- 807(b) and G.S. 7B-905(a), was not grounds for reversal because the mother could not show how she was prejudiced by the late filing. In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004), cert. denied, 359 N.C. 189, 606 S.E.2d 903 (2004).

Mother did not establish that a trial court's late entry of an order under G.S. 7B-905(a) in a neglect and dependency proceeding prejudiced the mother, as the delay did not preclude the reunification of the children and the mother. In re T.S., 178 N.C. App. 110, 631 S.E.2d 19 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302 (2007).

Father failed to show prejudice from the completion of a dispositional hearing 84 days after the conclusion of the adjudication hearing and 54 days after the deadline established by G.S. 7B-901 as the delay was due in part to the father's failure to complete his psychological evaluation and the parents' joint motion for a continuance as: (1) the trial court continued the dispositional hearing under G.S. 7B-803 based on its need to review the father's psychological evaluation; (2) the parents requested a continuance of the case; (3) the adjudication hearing was conducted within the 60-day deadline established by G.S. 7B-801(c); (4) the dispositional order was entered less than 30 days after the dispositional hearing under G.S. 7B-905(a); and (5) reunification efforts were not ceased until the dispositional hearing. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Time Limit Affects Child's Welfare. - Regularly allowing bureaucratic failure to be the sole cause of delay in the entry of orders (pursuant to G.S. 7B-807(b) and G.S. 7B-905(a)) affecting a child's welfare is anathema to the principles underlying the Juvenile Code. In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).

Failure to Provide for Visitation. - Trial court erred in failing to provide for visitation between the mother and the mother's older two children who were placed with the father due to the mother's neglect; the trial court was required by statute to provide for appropriate visitation as would be in the best interests of the minor children, consistent with their health and safety, and the trial court's failure to so provide meant the trial court had to consider the issue of visitation upon remand of the case to it. In re C.P., 181 N.C. App. 698, 641 S.E.2d 13 (2007).

When a son was found to be abused and the son and a daughter were found to be neglected, a trial court's dispositional order did not comply with G.S. 7B-905(c) because the order neither provided for visitation between the children and the children's parents nor found that such visitation was not in the children's best interests. In re C.M., 198 N.C. App. 53, 678 S.E.2d 794 (2009).

In a child neglect hearing in which the trial court did not include a visitation plan by the mother, as required by G.S. 7B-905(c), the mother could not be heard to complain on appeal since the trial court gave the mother exactly what she wanted. It was clear from the trial court's unchallenged findings of fact that the mother had declined to engage in visitation with the two children, had expressly stated that she did not want to see them, and was generally unwilling to do anything to promote reunification between herself and the children; the mother could have hardly made her lack of interest in visiting with the children clearer. In re K.C., 199 N.C. App. 557, 681 S.E.2d 559 (2009).

Visitation provisions of a court order failed to comply with the requirements of G.S. 7B-905(c) by failing to address "the time, place, and conditions under which visitation may be exercised." In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010).

Trial court improperly incorporated the allegations from the juvenile petition as its findings of fact under G.S. 7B-807(b) in its adjudication of the child's neglect or dependency due to the mother's absence from home. The trial court also erred in failing to address visitation as required by G.S. 7B-905(c). In the Matter of S.C.R., 217 N.C. App. 166, 718 S.E.2d 709 (2011).

Trial court failed to adopt a proper visitation plan as the plan did not set forth the time, place, or conditions of the father's visitation with child one where the order provided that the department of social services was to offer supervised visitation for the father every-other week and that visitation would be reduced to once a month if the father acted inappropriately during a visitation or did not attend a visit without prior notice. In re J.P., 227 N.C. App. 537, 742 S.E.2d 853 (2013), sub. op. 2013 N.C. App. LEXIS 905 (N.C. Ct. App. 2013).

Visitation Plan Insufficient. - It was error for a trial court's dispositional order concerning a mother's children to fail to provide for visitation with the mother because (1) such a provision was statutorily required, absent findings that visitation had been forfeited or was not in the children's best interests, and (2) such findings were not made. In re T.H., - N.C. App. - , - S.E.2d - (Nov. 5, 2013).

Trial court's order providing for a father's supervised visitation with his child every other week, to be reduced to once a month if he acted inappropriately, required additional findings and conclusions as to the time, place, and conditions of an appropriate visitation plan. In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).

Judge May Make Oral Entry of Order. - Under G.S. 1A-1, Rule 58, a judge may make an oral entry of a juvenile order, provided the order is subsequently reduced to written form as required by this section. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Mandamus Proper Remedy for Violation of Time Limit. - Trial court committed no prejudicial error where the court's failure to comply with G.S. 7B-807(b) and 7B-905(a) occurred after a dispositional and adjudicative hearing, and the three-month delay in entry of the order of adjudication and disposition could not have been remedied by a new hearing. The proper remedy would have been to seek a writ of mandamus pursuant to N.C. R. App. P. 22(a) to compel the trial court to enter the order. In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008).

Written dispositional order entered by juvenile court, which conformed generally with oral announcement of the order in open court, was valid. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642 (1988).

Implication of Separation as Pre-Condition to Reunification Deemed Error. - Although the court was authorized under former G.S. 7A-651(c)(2) to find that efforts to reunite a family would be futile or inconsistent with the juvenile's safety, the court's statements implying that separation of the parents was a pre-condition to the mother having a realistic chance to regain custody were prejudicial error, and the part of the court's order retaining jurisdiction was, therefore, vacated. In re McLean, 135 N.C. App. 387, 521 S.E.2d 121 (1999).

Restitution Order Vacated. - Where although the record contained substantial evidence that victim suffered great damage to his mobile home, juveniles were charged only with breaking windows and damaging the doors of his property, and admitted only to throwing rocks through some of the windows in the mobile home and nothing further, and there was no evidence in the record as to the amount of damage caused by the rocks thrown by the juveniles, dispositional order ordering restitution in the amount of $3,000.00 would be vacated and the matter remanded for a new dispositional hearing, at which the court would determine the amount of damages caused to the mobile home by the rocks thrown through the windows by the juveniles. In re Hull, 89 N.C. App. 171, 365 S.E.2d 221 (1988).

Where custody changes from one parent to another, in the children's best interests, the trial was relieved of the duty to conduct periodic judicial reviews of the placement pursuant to G.S. 7B-905 and G.S. 7B-906(d) (repealed, see now G.S. 7B-906.1). Rholetter v. Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004).

Denial of Visitation to Father. - Trial court did not err in ordering that there be no contact between a minor child and her father because the testimony presented at a hearing along with county department of social services reports offered as evidence before the trial court tended to show that the father beat the child two to three times a day with a belt, used his fist to hit the child in the mouth, stomped on the child's stomach and caused the child to sustain the injuries of a fractured finger and ruptured spleen; accordingly, no amount of contact between the father and the child could have been said to be in the best interest of the child or be in anyway consistent with the health and safety of the child. In re J.S., 182 N.C. App. 79, 641 S.E.2d 395 (2007).

Child Properly Removed. - Because the trial court found that the Department of Social Services (DSS) made reasonable efforts to prevent or eliminate the need for placement with DSS, to reunify the family, and to implement a permanent plan for the minor child, and the conditions that led to the kinship placement of both minor children still existed, the child was properly removed. In re A.S., 181 N.C. App. 706, 640 S.E.2d 817 (2007), appeal dismissed, 361 N.C. 427, 648 S.E.2d 203 (2007).

Improper Discretion As to Visitation At Discretion of Guardian Held Error - Trial court erred in ordering visitation between mother and her child at the discretion of the guardian with whom the court vested the physical custody of the child because the court, at a review hearing, was to consider and make relevant findings of fact regarding an appropriate visitation plan under G.S. 7B-906(c)(6) (repealed, see now G.S. 7B-906.1). In re E.C., 174 N.C. App. 517, 621 S.E.2d 647 (2005).

In a proceeding where children had been adjudicated neglected and dependent, permitting the children's guardian to determine visitation with their mother under G.S. 7B-905 was an improper delegation of judicial function. In re T.T., 182 N.C. App. 145, 641 S.E.2d 344 (2007).

Restriction on Visitation. - Trial court did not err in ordering that visitation between the minor child, who had been the subject of neglect proceedings in the trial court, and the parents be at the discretion of the county social services department, as the trial court had the authority to do so; however, a remand of the minor child's case to the trial court was necessary because the county social services department was required to submit a visitation plan for the trial court's approval. In re D.S.A., 181 N.C. App. 715, 641 S.E.2d 18 (2007).

Findings that a father did not understand that his violent behaviors were unacceptable and had negatively impacted his children, had not been consistent with his contact with the child, and had refused to enroll in parenting classes, and the father's emotional instability supported supervised weekly visitation, but clarification was needed under G.S. 7B-905 as to the father's visitation rights, including the establishment of a minimum outline of visitation. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383 (2010).

In proceedings wherein a five-year-old child was adjudicated neglected, the trial court erred in denying the mother in-person visitation and permitting only electronic video communication, G.S. 50-13.2(e), because the court failed to find the mother forfeited her right to visitation or that visitation was not in the child's best interest, G.S. 7B-905(c). In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823 (2013).

Termination of Visitation. - Termination of a mother's visitation with a child was not an abuse of discretion under G.S. 7B-507, G.S. 7B-901, G.S. 7B-903, and G.S. 7B-905 and was supported by findings of the parents' unsuccessful parenting of a sibling and their lack of progress in working with a department of social services to parent the child. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (2007).

Order Allowing Parent and Child to Set Visitation Criteria Was Improper Delegation Of Trial Court's Authority. - Because the trial court's order for visitation allowed a mother and a juvenile the authority to create the criteria upon which the visitations would occur, the order constituted an impermissible delegation of the trial court's authority under G.S. 7B-905; the trial court failed to include a minimum outline of the conditions under which visitation could be exercised, and the order allowed for one visit per month but provided no other details such as the time, place, or conditions under which the visitation was to take place. In re H.K.L., - N.C. App. - , - S.E.2d - (May 3, 2011).

Impermissible Delegation of Authority. - Trial court's visitation order constituted an impermissible delegation of the court's statutory authority because it did not contain the required minimum outline. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207 (2014).

Visitation Plan Held Insufficient. - Trial court failed to adopt a proper visitation plan because the plan provided in its disposition order did not sufficiently set forth the time, place, or conditions of a father's visitation with his child. In re J.P., - N.C. App. - , 745 S.E.2d 917 (Aug. 6, 2013).

Applied in In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007), aff'd in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008); State v. Rivens, 198 N.C. App. 130, 679 S.E.2d 145 (2009).

Cited in In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005); In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424 (2005); In re A.D.L., 169 N.C. App. 701, 612 S.E.2d 639 (2005); In re As.L.G., 173 N.C. App. 551, 619 S.E.2d 561 (2005); In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); In re A.K., 360 N.C. 449, 628 S.E.2d 753 (2006); In re A.R.G., 178 N.C. App. 205, 631 S.E.2d 146 (2006); Owen v. Keeter (In re C.L.K.), 182 N.C. App. 600, 643 S.E.2d 458 (2007); In re A.R.H.B., 186 N.C. App. 211, 651 S.E.2d 247 (2007), appeal dismissed, 362 N.C. 235, 659 S.E.2d 433 (2008); In re R.B.B., 187 N.C. App. 639, 654 S.E.2d 514 (2007), review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re A.G.M., 241 N.C. App. 426, 773 S.E.2d 123 (2015); In re P.S., 242 N.C. App. 430, 775 S.E.2d 370 (2015); In re M.A.E., - N.C. App. - , - S.E.2d - (July 21, 2015).

CASE NOTES

Applicability. - Application of G.S. 7B-905.1(d) is limited to instances where the trial court is not otherwise mandated to review the visitation plan; the court has not held, and declines to hold, that the trial court is obligated to advise parents of their right to file a motion to review the visitation plan where the trial court is statutorily mandated to hold permanency planning hearings at least every six months. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Applicability. - Application of G.S. 7B-905.1(d) is limited to instances where the trial court is not otherwise mandated to review the visitation plan; the court has not held, and declines to hold, that the trial court is obligated to advise parents of their right to file a motion to review the visitation plan where the trial court is statutorily mandated to hold permanency planning hearings at least every six months. In re J.M., - N.C. App. - , - S.E.2d - (Apr. 6, 2021).

Visitation Plan Review. - Court did not fail to find if the court should retain jurisdiction because (1) the court did not terminate jurisdiction and said the parties could ask the court to review visitation, (2) a mother did not claim the court wrongly kept jurisdiction or did not follow statutory procedures, and (3) the mother did not support a claim that transfer to an N.C. Gen. Stat. ch. 50 proceeding was not analyzed. In re Y.I., 262 N.C. App. 575, 822 S.E.2d 501 (2018).

Visitation Plan Sufficient. - Visitation order, giving the mother two hour long visits, complied with the statutory mandate in this section. In re J.W., 241 N.C. App. 44, 772 S.E.2d 249 (2015).

Trial court's order for supervised visitation as to the mother was not manifestly unsupported by reason, and the trial court did not abuse its discretion by limiting her to a minimum of one hour per week of supervised visitation with the child, because the trial court had heard testimony that the parent's unsupervised visitation had previously been rescinded due to separate instances of visitation where they appeared to be under the influence, the child's guardian ad litem recommended supervised visitation, and the child's therapist's letter also described concerns with changing the juvenile's routine. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Father's argument that the trial court failed to provide him with notice of his right to file a motion with the trial court to review the visitation plan was rejected because in open court the trial court made the parties aware in a general sense that it would retain continuing jurisdiction and could review any aspect of its permanency planning order upon its own motion or that of a party. In re I.K., - N.C. App. - , - S.E.2d - (Aug. 18, 2020).

Visitation Plan Insufficient. - Trial court's order providing for a father's supervised visitation with his child every other week, to be reduced to once a month if he acted inappropriately, required additional findings and conclusions as to the time, place, and conditions of an appropriate visitation plan. In re J.P., 230 N.C. App. 523, 750 S.E.2d 543 (2013).

Trial court's visitation plan was insufficient because the court did not establish the duration of a mother's monthly visitation. In re J.H., 244 N.C. App. 255, 780 S.E.2d 228 (2015).

Trial court did not fully comply with the applicable statutory requirements because its order failed to provide any direction as to the frequency or length of a mother's visits in the event that she did not return to live in Arizona, and it failed to specify whether the visits with the mother would be supervised or unsupervised. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755 (2018).

Visitation Order Sufficient. - Trial court properly accounted for the minimum frequency and length of visitation and provided for the visitations to be supervised by the family therapist; nothing required the court to designate a time and place for the visitations. In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (2015).

Trial court's visitation provisions were not inconsistent because the trial court's conclusion that the mother was a parent whose status conveyed a right to visitation was subject to the determination of the scope and duration of visitation as would be in the best interest of the child consistent with his health and safety; the trial court's determination that the foster parents be appointed the child's guardians conveyed the parental status the mother retained following that determination. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Trial court did not abuse its discretion in denying visitation because visitation with the mother was not in the child's best interest consistent with his health and safety; the trial court's ultimate finding that visitation would be inappropriate and not in the child's best interest was supported by the trial court's evidentiary findings. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Visitation Order Insufficient. - Court's supervised visitation order erred because the court did not find related costs or whether a mother could pay such costs. In re Y.I., 262 N.C. App. 575, 822 S.E.2d 501 (2018).

Trial court's visitation order was vacated because the trial court did not notify the mother of her right to file a motion for review of the visitation plan; in addition, the trial court did not inform the mother of that right in open court on the record. In re J.L., - N.C. App. - , 826 S.E.2d 258 (2019).

Trial court's visitation order erred because: (1) the court ordered supervised visitation without addressing the costs of such visitation, the party liable for such costs, or a mother's ability to bear the costs; and (2) the order contained contradictory provisions regarding the amount of visitation the mother was awarded. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).

Portion of the dispositional order setting out the Mother's visitation was set aside and remanded for additional findings where the trial court had not determined whether any inability to pay for visitation on the mother's part would have prevented the best interests of the child from being met. In re E.P.-L.M., - N.C. App. - , - S.E.2d - (Aug. 4, 2020).

Impermissible Delegation of Judicial Function. - Trial court impermissibly delegated its judicial function to a father because the disposition order delegated to the father substantial discretion over kinds of visitation, such as the mother having lunch with the child at school; the order also provided future, conditional expansions of the mother's visitation rights that effectively were contingent on the father deciding that the mother complied with the trial court's directives. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (2015).

When a trial court concluded it was not in children's best interests to return the children to the children's grandparents, the court's findings regarding the grandparents' visitation and the children's best interest were deficient because (1) the court made no reference to visitation and made no findings supporting the conclusion, and (2) a finding adopting reports of the Department of Social Services and the guardian ad litem as findings of fact was insufficient. In re J.R.S., 258 N.C. App. 612, 813 S.E.2d 283 (2018).

Allowing a social services agency to expand visitation contingent upon the mother's progress with her case plan was not an impermissible delegation of judicial authority. The disposition order only gave the agency discretion to expand visitation, not reduce it below the minimum set by the trial court. In re K.W., - N.C. App. - , 846 S.E.2d 584 (2020).

Although the grandmother, who was granted guardianship of the mother's children, was not explicitly authorized to terminate or suspend the mother's visitation, the trial court improperly delegated a judicial function to the grandmother by giving her the power to unilaterally modify the mother's visitation. In re J.M., - N.C. App. - , - S.E.2d - (Sept. 1, 2020).

Visitation Plan Review Preserved. - Mother's appellate claim that a trial court erred in ordering supervised visitation without addressing cost, who would bear the expense, or the mother's ability to pay that expense was considered on appeal despite her failure to object because no objection was required to preserve this type of question for review. In re J.T.S., - N.C. App. - , 834 S.E.2d 637 (2019).

Trial court did not abuse its discretion in denying visitation to a biological father because he had not contacted the children for two years, and the children did not know the biological father and had no bond with him; given the issues with the biological father's transience and criminal history, and his lack of involvement throughout the children's life, it was not manifestly unreasonable to deduce that being introduced to him could be emotionally difficult. In re E.Y.B., - N.C. App. - , - S.E.2d - (Mar. 16, 2021).

Cited in In re E.M., 249 N.C. App. 44, 790 S.E.2d 863 (2016); In re K.L., 254 N.C. App. 269, 802 S.E.2d 588 (2017).