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 N.C. App. LEXIS 3017 (1983), modified, 311 N.C. 586, 319 S.E.2d 567, 1984 N.C. LEXIS 1765 (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 N.C. LEXIS 684 (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 N.C. App. LEXIS 1798 (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 N.C. LEXIS 597 (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 N.C. LEXIS 630 (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 N.C. App. LEXIS 303 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673, 2003 U.S. LEXIS 3016 (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 N.C. LEXIS 22 (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 N.C. LEXIS 625 (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., 377 N.C. 106, 856 S.E.2d 510, 2021- NCSC-34, 2021 N.C. LEXIS 326 (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 N.C. App. LEXIS 2181 (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 N.C. LEXIS 646 (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 N.C. App. LEXIS 1510 (1970), cert. denied, 403 U.S. 940, 91 S. Ct. 2258, 29 L. Ed. 2d 719, 1971 U.S. LEXIS 1613 (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, 1991 N.C. LEXIS 96, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435, 1991 U.S. LEXIS 6550 (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, 1991 N.C. LEXIS 96, cert. denied, 502 U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435, 1991 U.S. LEXIS 6550 (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 N.C. App. LEXIS 1245 (2016).

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 N.C. App. LEXIS 2555 (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 N.C. App. LEXIS 2321 (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 N.C. LEXIS 684 (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 N.C. App. LEXIS 624, cert. denied, writ denied, 352 N.C. 674, 545 S.E.2d 728, 2000 N.C. LEXIS 856 (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 N.C. App. LEXIS 2493 (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 N.C. LEXIS 159 (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 N.C. App. LEXIS 2493 (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 N.C. App. LEXIS 2321 (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 N.C. App. LEXIS 2500 (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 N.C. App. LEXIS 309 (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 N.C. App. LEXIS 1509 (2004).

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, 2008 U.S. Dist. LEXIS 104102 (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 N.C. LEXIS 884 (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 N.C. LEXIS 884 (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 N.C. App. LEXIS 3685 (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 N.C. App. LEXIS 416 (2014), aff'd, 368 N.C. 167, 775 S.E.2d 656, 2015 N.C. LEXIS 684 (2015).

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 N.C. LEXIS 684 (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 N.C. App. LEXIS 440 (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 N.C. LEXIS 1026 (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 N.C. LEXIS 1026 (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, 1986 N.C. App. LEXIS 2344 (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 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 1268 (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 N.C. App. LEXIS 2412 (2006), aff'd, cert. dismissed in part, 362 N.C. 172, 655 S.E.2d 712, 2008 N.C. LEXIS 22 (2008).

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 N.C. App. LEXIS 1374 (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., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

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 N.C. App. LEXIS 1174 (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 N.C. App. LEXIS 990 (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 N.C. App. LEXIS 243 (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 N.C. App. LEXIS 765 (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., 2005 N.C. App. LEXIS 1091 (N.C. Ct. App. June 7, 2005), op. withdrawn, 2005 N.C. App. LEXIS 1192 (N.C. Ct. App. June 16, 2005), sub. op., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 652 (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 N.C. App. LEXIS 59 (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 N.C. App. LEXIS 986 (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 N.C. App. LEXIS 1041 (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 N.C. LEXIS 629 (2020).

Trial court did not err by adjudicating the parents’ children as dependent because the evidence showed that the parents’ lack of care and supervision led to one child’s injury, they were unable to provide an alternative plan of care for the children after the temporary placement ended, they failed to meet the children’s educational and medical needs. In re W.C.T., 2021-NCCOA-559, 867 S.E.2d 14, 2021- NCCOA-559, 2021 N.C. App. LEXIS 580 (Ct. App. 2021).

“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 N.C. App. LEXIS 768 (2017).

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 N.C. LEXIS 33 (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., 272 N.C. App. 499, 846 S.E.2d 790, 2020 N.C. App. LEXIS 541 (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., 272 N.C. App. 499, 846 S.E.2d 790, 2020 N.C. App. LEXIS 541 (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., 375 N.C. 645, 849 S.E.2d 824, 2020 N.C. LEXIS 1018 (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., 377 N.C. 43, 855 S.E.2d 464, 2021- NCSC-26, 2021 N.C. LEXIS 282 (2021).

Trial court’s findings of fact supported its conclusion that a ground existed to terminate the mother’s parental rights due to neglect because the findings of fact demonstrated the mother’s lack of progress in obtaining appropriate housing, submitting to drug screens, and attending visitations, all of which reflected her inability to provide the juvenile proper care and supervision in a safe home environment, the juvenile had spent half of his life in Department of Social Services custody, and the mother’s prior neglect of the juvenile and her circumstances at the time of the termination hearing supported the trial court’s conclusion that the juvenile faced a significant likelihood of future neglect if returned to the mother’s care. In re A.L.A., 2021-NCSC-148, 379 N.C. 383, 866 S.E.2d 733, 2021- NCSC-148, 2021 N.C. LEXIS 1323 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 370 (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 N.C. LEXIS 597 (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 N.C. App. LEXIS 2447 (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 N.C. App. LEXIS 1502 (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 N.C. App. LEXIS 1168 (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., 2008 U.S. Dist. LEXIS 80994 (W.D.N.C. Aug. 18, 2008), aff'd, 318 Fed. Appx. 208, 2009 U.S. App. LEXIS 5736 (4th Cir. 2009).

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 N.C. LEXIS 684 (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 N.C. App. LEXIS 55 (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, 2009 N.C. LEXIS 731 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 221 (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 N.C. App. LEXIS 327 (2018).

Trial court’s order was devoid of factual findings regarding an alternative child care arrangement, but there was evidence in the record from multiple sources that the mother sought respite care for the minor child as she believed necessary; consequently, the appellate court reversed the adjudication of dependency for the trial court’s failure to consider the second prong. In re R.B., 2021-NCCOA-654, 868 S.E.2d 119, 2021- NCCOA-654, 2021 N.C. App. LEXIS 695 (Ct. App. 2021).

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 N.C. App. LEXIS 1400 (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 N.C. App. LEXIS 519 (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 N.C. LEXIS 830 (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, 1982 N.C. App. LEXIS 2687 (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 N.C. LEXIS 1454 (1982).

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 N.C. App. LEXIS 1061 (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, 1982 N.C. App. LEXIS 2687 (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 N.C. App. LEXIS 236 (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 N.C. App. LEXIS 917 (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 N.C. App. LEXIS 768 (2017).

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., 272 N.C. App. 585, 847 S.E.2d 427, 2020 N.C. App. LEXIS 587 (2020).

Trial court did not err by adjudicating the parents’ child as an abused juvenile because the child’s injury occurred while he was in the exclusive care of his paternal grandmother, she had made several threats to the mother and the children, the parents and the grandmother repeated multiple inconsistent stories regarding the events surrounding the child’s injuries, and there was a delay of one hour and 40 minutes from the time when the grandmother called the mother and the child was taken to the hospital for treatment. In re W.C.T., 2021-NCCOA-559, 867 S.E.2d 14, 2021- NCCOA-559, 2021 N.C. App. LEXIS 580 (Ct. App. 2021).

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 N.C. App. LEXIS 917 (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 N.C. App. LEXIS 3242 (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 N.C. App. LEXIS 3242 (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, 1982 N.C. App. LEXIS 2687 (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 N.C. App. LEXIS 2190 (1976); In re Devone, 86 N.C. App. 57, 356 S.E.2d 389, 1987 N.C. App. LEXIS 2671 (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, 1982 N.C. App. LEXIS 2687 (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, 1982 N.C. App. LEXIS 2687 (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, 1992 N.C. App. LEXIS 764 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 2438 (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 N.C. App. LEXIS 608 (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 N.C. App. LEXIS 132 (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 N.C. App. LEXIS 3823 (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 N.C. App. LEXIS 1061 (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 N.C. LEXIS 625 (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 N.C. App. LEXIS 3123 (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 N.C. App. LEXIS 515 (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 N.C. App. LEXIS 614 (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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (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., 272 N.C. App. 585, 847 S.E.2d 427, 2020 N.C. App. LEXIS 587 (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 N.C. LEXIS 628 (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., 273 N.C. App. 294, 848 S.E.2d 530, 2020 N.C. App. LEXIS 624 (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 N.C. App. LEXIS 3242 (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., 272 N.C. App. 55, 845 S.E.2d 888, 2020 N.C. App. LEXIS 464 (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 N.C. App. LEXIS 2027 (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 N.C. App. LEXIS 265 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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 N.C. App. LEXIS 132 (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, 1983 N.C. App. LEXIS 3007 (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 N.C. App. LEXIS 2671 (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 N.C. App. LEXIS 2671 (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 N.C. App. LEXIS 131 (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 N.C. App. LEXIS 515 (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 N.C. App. LEXIS 1308 (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 N.C. App. LEXIS 324 (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 N.C. App. LEXIS 1518 (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 N.C. App. LEXIS 3602 (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 N.C. App. LEXIS 917 (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 N.C. App. LEXIS 933 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 838 (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 N.C. App. LEXIS 303 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673, 2003 U.S. LEXIS 3016 (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 N.C. App. LEXIS 303 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673, 2003 U.S. LEXIS 3016 (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 N.C. App. LEXIS 905 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 627, 2003 N.C. LEXIS 289 (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 N.C. App. LEXIS 324 (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, 160 N.C. App. 586, 586 S.E.2d 486, 2003 N.C. App. LEXIS 1816 (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 N.C. App. LEXIS 1910 (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 N.C. App. LEXIS 175 (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 N.C. App. LEXIS 706 (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 N.C. App. LEXIS 435 (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 N.C. App. LEXIS 678 (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 N.C. App. LEXIS 2724 (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 N.C. App. LEXIS 2706 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 2109 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 780, 2006 N.C. LEXIS 11 (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 N.C. App. LEXIS 1220 (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 N.C. App. LEXIS 1299 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302, 2007 N.C. LEXIS 213 (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 N.C. App. LEXIS 378, aff'd, 361 N.C. 686, 651 S.E.2d 883, 2007 N.C. LEXIS 1100 (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 N.C. App. LEXIS 377 (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 N.C. App. LEXIS 375 (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 N.C. App. LEXIS 157 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 833 (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 N.C. LEXIS 413 (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 N.C. App. LEXIS 683 (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 N.C. App. LEXIS 730 (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 N.C. App. LEXIS 1970 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355, 2008 N.C. LEXIS 145 (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 N.C. App. LEXIS 2086 (2007).

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 N.C. App. LEXIS 2086 (2007).

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 N.C. App. LEXIS 2257 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734, 2008 N.C. LEXIS 492 (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 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 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 N.C. App. LEXIS 716 (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 N.C. App. LEXIS 1617 (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 N.C. App. LEXIS 1655 (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., 2009 N.C. App. LEXIS 733 (N.C. Ct. App. June 16, 2009), op. withdrawn, 2009 N.C. App. LEXIS 1013 (N.C. Ct. App. June 26, 2009), sub. op., 2009 N.C. App. LEXIS 1251 (N.C. Ct. App. July 21, 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 N.C. App. LEXIS 755 (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 N.C. App. LEXIS 1100 (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 N.C. App. LEXIS 1075 (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 N.C. App. LEXIS 1362 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 1550 (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 N.C. App. LEXIS 1139 (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 N.C. App. LEXIS 1898 (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 N.C. App. LEXIS 2239 (2011).

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 N.C. App. LEXIS 2334 (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 N.C. App. LEXIS 171 (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 N.C. App. LEXIS 1215 (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 N.C. App. LEXIS 43 (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 N.C. App. LEXIS 375 (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 N.C. App. LEXIS 515 (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 N.C. App. LEXIS 519 (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 N.C. App. LEXIS 1041 (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 N.C. App. LEXIS 96, aff'd, 369 N.C. 58, 791 S.E.2d 457, 2016 N.C. LEXIS 811 (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 N.C. App. LEXIS 101 (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 N.C. App. LEXIS 1066 (2016), aff'd, 370 N.C. 387, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (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 N.C. App. LEXIS 395 (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 N.C. App. LEXIS 990 (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 N.C. LEXIS 53 (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 N.C. LEXIS 259 (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., 272 N.C. App. 585, 847 S.E.2d 427, 2020 N.C. App. LEXIS 587 (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., 375 N.C. 547, 850 S.E.2d 276, 2020 N.C. LEXIS 1004 (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., 276 N.C. App. 327, 857 S.E.2d 345, 2021- NCCOA-94, 2021 N.C. App. LEXIS 122 (2021).

Trial court did not err in concluding that grounds existed to terminate a mother’s parental rights based on neglect because the child was removed from the mother’s care and adjudicated to be a neglected juvenile primarily due to the mother’s unstable housing and history of domestic violence and the court found a likelihood of repetition of neglect if the child was returned to the mother’s care due to a lack of stable housing and unresolved domestic violence issues. In re M.A. (Aug. 27, 2021).

Trial court’s conclusion that children in the custody of a relative were neglected juveniles was appropriate because the relative’s inappropriate physical discipline of the children, refusal to follow recommendations from comprehensive clinical assessments, refusal to complete parenting programs, and failure to comply with in-home services supported a finding of neglect. In re A.D. & A. (Aug. 3, 2021).

Trial court did not err by adjudicating the child a neglected juvenile because its findings, including the parents’ and the child’s positive drug test results, showed that the child lived in an environment injurious to his welfare. In addition, both parents admitted to previous substance use, two heroin overdoses necessitating emergency medical response occurred in the home, and drug paraphernalia was present in the home. In re K.H., 2022-NCCOA-3, 867 S.E.2d 757, 2022- NCCOA-3, 2022 N.C. App. LEXIS 8 (Ct. App. 2022).

Trial court did not err in concluding that grounds existed to terminate a mother’s parental rights based on neglect because the child was removed from the mother’s care and adjudicated to be a neglected juvenile primarily due to the mother’s unstable housing and history of domestic violence and the court found a likelihood of repetition of neglect if the child was returned to the mother’s care due to a lack of stable housing and unresolved domestic violence issues. In re M.A., 2021-NCSC-99, 378 N.C. 462, 862 S.E.2d 169, 2021- NCSC-99, 2021 N.C. LEXIS 852 (2021).

Trial court’s conclusion that children in the custody of a relative were neglected juveniles was appropriate because the relative’s inappropriate physical discipline of the children, refusal to follow recommendations from comprehensive clinical assessments, refusal to complete and parenting programs, and failure to comply with in-home services supported a finding of neglect. In re A.D. & A., 2021-NCCOA-398, 278 N.C. App. 637, 863 S.E.2d 317, 2021- NCCOA-398, 2021 N.C. App. LEXIS 413 (2021).

Grounds existed to terminate the mother’s parental rights on the basis of neglect because the mother failed to take advantage of multiple opportunities to engage in services, she did not comply with the recommendations, and she did not make reasonable progress in her mental health and substance abuse treatment; four of her screens were positive for marijuana, and one was positive for cocaine. In re M.S.E., 2021-NCSC-76, 378 N.C. 40, 859 S.E.2d 196, 2021- NCSC-76, 2021 N.C. LEXIS 614 (2021).

Order terminating the father’s parental rights was affirmed because the father had not completed substance abuse treatment by the time of the termination hearing and he failed to show interest in the child’s welfare through the means available to him. Thus, the trial court reasonably concluded that there was a high probability that the child would be neglected in the future were he placed in the father’s care. In re W.K., 2021-NCSC-146, 379 N.C. 331, 864 S.E.2d 313, 2021- NCSC-146, 2021 N.C. LEXIS 1117 (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 N.C. App. LEXIS 1150 (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 N.C. App. LEXIS 1169 (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 N.C. App. LEXIS 344 (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 N.C. LEXIS 747 (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 N.C. App. LEXIS 1785 (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., 2005 N.C. App. LEXIS 1091 (N.C. Ct. App. June 7, 2005), op. withdrawn, 2005 N.C. App. LEXIS 1192 (N.C. Ct. App. June 16, 2005), sub. op., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 2237 (2006), aff'd, 361 N.C. 345, 2007 N.C. LEXIS 419 (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 N.C. App. LEXIS 594 (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 N.C. App. LEXIS 1163, aff'd, 362 N.C. 82, 653 S.E.2d 143, 2007 N.C. LEXIS 1229 (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 N.C. App. LEXIS 599 (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 N.C. App. LEXIS 404 (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 N.C. App. LEXIS 551 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 2237 (2006), aff'd, 361 N.C. 345, 2007 N.C. LEXIS 419 (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., 272 N.C. App. 487, 846 S.E.2d 584, 2020 N.C. App. LEXIS 565 (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 N.C. App. LEXIS 933 (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 N.C. App. LEXIS 838 (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 N.C. App. LEXIS 425 (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 N.C. App. LEXIS 251 (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 N.C. App. LEXIS 83 (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 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 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 N.C. App. LEXIS 2570 (2007).

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 N.C. App. LEXIS 1655 (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 N.C. App. LEXIS 1075 (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 N.C. App. LEXIS 1400 (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 N.C. App. LEXIS 1400 (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 N.C. App. LEXIS 1215 (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. (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 N.C. App. LEXIS 986 (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 N.C. App. LEXIS 986 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 635 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 1812 (2007), aff'd in part, modified, 362 N.C. 446, 665 S.E.2d 54, 2008 N.C. LEXIS 686 (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., 272 N.C. App. 30, 845 S.E.2d 182, 2020 N.C. App. LEXIS 461 (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 N.C. App. LEXIS 48 (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 N.C. App. LEXIS 986 (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 N.C. App. LEXIS 3631 (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 N.C. App. LEXIS 160 (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 N.C. App. LEXIS 177 (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 N.C. App. LEXIS 616 (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 N.C. LEXIS 1188 (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 N.C. App. LEXIS 17 (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 N.C. App. LEXIS 862 (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 N.C. App. LEXIS 417 (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, 1975 N.C. App. LEXIS 1987, cert. denied, 287 N.C. 664, 216 S.E.2d 910, 1975 N.C. LEXIS 1172 (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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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., 276 N.C. App. 291, 856 S.E.2d 904, 2021- NCCOA-92, 2021 N.C. App. LEXIS 110 (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, 2008 U.S. Dist. LEXIS 46641 (W.D.N.C.), dismissed without prejudice, 614 F. Supp. 2d 603, 2008 U.S. Dist. LEXIS 104102 (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 N.C. App. LEXIS 2531 (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 N.C. App. LEXIS 2531 (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 N.C. App. LEXIS 1349 (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 N.C. App. LEXIS 251 (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 N.C. App. LEXIS 1273 (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 N.C. App. LEXIS 260 (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., 276 N.C. App. 309, 857 S.E.2d 332, 2021- NCCOA-93, 2021 N.C. App. LEXIS 123 (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 N.C. App. LEXIS 614 (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 N.C. App. LEXIS 1205 (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 N.C. App. LEXIS 678 (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 N.C. App. LEXIS 840 (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 N.C. App. LEXIS 1215 (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 N.C. App. LEXIS 43 (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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 866 (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 N.C. LEXIS 44 (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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (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, adjudicate and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

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. Op. Att'y Gen. 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 N.C. LEXIS 1006 (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., 2008 U.S. Dist. LEXIS 80994 (W.D.N.C. Aug. 18, 2008), aff'd, 318 Fed. Appx. 208, 2009 U.S. App. LEXIS 5736 (4th Cir. 2009).

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 N.C. App. LEXIS 1157 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 74 (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 N.C. LEXIS 158 (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 N.C. App. LEXIS 36 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 1314 (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 N.C. App. LEXIS 1012 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 2098 (2005), aff'd, 360 N.C. 588, 636 S.E.2d 787, 2006 N.C. LEXIS 1193 (2006).

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 N.C. App. LEXIS 1960 (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 N.C. App. LEXIS 1109 (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 N.C. App. LEXIS 281 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 128 (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 N.C. LEXIS 329 (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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

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 N.C. App. LEXIS 1191 (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 N.C. App. LEXIS 516 (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 N.C. App. LEXIS 625 (1997).

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 N.C. App. LEXIS 1316 (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., 375 N.C. 310, 847 S.E.2d 666, 2020 N.C. LEXIS 839 (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 N.C. App. LEXIS 3613 (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 N.C. App. LEXIS 375 (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 N.C. LEXIS 609 (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 N.C. LEXIS 609 (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 N.C. App. LEXIS 1349 (1998).

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 N.C. App. LEXIS 1067 (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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 2098 (2005), aff'd, 360 N.C. 588, 636 S.E.2d 787, 2006 N.C. LEXIS 1193 (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 N.C. App. LEXIS 1109 (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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 281 (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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

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 N.C. App. LEXIS 2476 (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 N.C. App. LEXIS 866 (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 N.C. App. LEXIS 1168 (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., 270 N.C. App. 409, 841 S.E.2d 317, 2020 N.C. App. LEXIS 198 (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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

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 N.C. App. LEXIS 372 (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 N.C. App. LEXIS 1018 (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, 1996 U.S. App. LEXIS 29356 (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 N.C. LEXIS 747 (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 N.C. App. LEXIS 55 (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., 276 N.C. App. 291, 856 S.E.2d 904, 2021- NCCOA-92, 2021 N.C. App. LEXIS 110 (2021).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions below were rendered under former Chapter 7A.

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, 1990 N.C. App. LEXIS 62 (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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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 N.C. App. LEXIS 824 (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 N.C. LEXIS 433 (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 N.C. App. LEXIS 915 (2002).

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 N.C. App. LEXIS 347 (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, 2008 U.S. Dist. LEXIS 104102 (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, 2008 U.S. Dist. LEXIS 46641 (W.D.N.C.), dismissed without prejudice, 614 F. Supp. 2d 603, 2008 U.S. Dist. LEXIS 104102 (W.D.N.C. 2008).

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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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 N.C. App. LEXIS 1314 (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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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, 1996 U.S. App. LEXIS 29356 (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 N.C. App. LEXIS 1532 (2008).

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, 1996 U.S. App. LEXIS 29356 (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, 1996 U.S. App. LEXIS 29356 (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 N.C. App. LEXIS 304 (2001), rev'd, 357 N.C. 279, 582 S.E.2d 255, 2003 N.C. LEXIS 747 (2003).

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, 1996 U.S. App. LEXIS 29356 (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 N.C. App. LEXIS 1012 (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 N.C. LEXIS 747 (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 N.C. App. LEXIS 148 (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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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. Op. Att'y Gen. 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 N.C. App. LEXIS 304 (2001), rev'd, 357 N.C. 279, 582 S.E.2d 255, 2003 N.C. LEXIS 747 (2003).

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 N.C. LEXIS 747 (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 N.C. App. LEXIS 304 (2001), rev'd, 357 N.C. 279, 582 S.E.2d 255, 2003 N.C. LEXIS 747 (2003).

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 N.C. App. LEXIS 1314 (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, 1994 U.S. Dist. LEXIS 3080 (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 N.C. App. LEXIS 1018 (1996).

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 N.C. LEXIS 187 (1997).

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, 1993 N.C. App. LEXIS 98, cert. denied, 333 N.C. 465, 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

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 N.C. App. LEXIS 933 (1989).

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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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 N.C. App. LEXIS 824 (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 N.C. LEXIS 433 (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, 1988 N.C. App. LEXIS 281 (1988), overruled, Hunt by & Through Hasty v. North Carolina DOL, 348 N.C. 192, 499 S.E.2d 747, 1998 N.C. LEXIS 215 (1998).

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 N.C. App. LEXIS 894 (1999), rev'd, 352 N.C. 77, 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

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 N.C. App. LEXIS 915 (2002).

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 N.C. LEXIS 1462 (1983); State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (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 N.C. LEXIS 1822 (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 N.C. App. LEXIS 1393 (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 N.C. App. LEXIS 347 (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 N.C. LEXIS 1822 (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 N.C. App. LEXIS 933 (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 N.C. LEXIS 1462 (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 N.C. LEXIS 1822 (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 N.C. App. LEXIS 372 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 1168 (2016).

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 N.C. App. LEXIS 372 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 381 (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 N.C. App. LEXIS 1108 (2018).

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 N.C. App. LEXIS 372 (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 N.C. App. LEXIS 1168 (2016).

CASE NOTES

Venue Proper. —

Record demonstrated that Wake County was a proper venue for the juvenile proceeding, given that the verified petition filed by Wake County Human Services (WCHS) averred, and mother stipulated, that the child was living in South Carolina with his maternal grandmother pursuant to a safety plan that WCHS established, and that the child was visiting Wake County with his grandmother and was therefore present in the county at the time that WCHS filed the petition. In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

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 N.C. LEXIS 329 (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 N.C. App. LEXIS 2494 (2005).

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 N.C. App. LEXIS 370 (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 N.C. App. LEXIS 1109 (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 N.C. App. LEXIS 496 (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 N.C. LEXIS 597 (2007).

CASE NOTES

Proper Petitioners. —

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 N.C. LEXIS 329 (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 N.C. LEXIS 329 (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 N.C. LEXIS 329 (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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (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 N.C. App. LEXIS 327 (2018).

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 N.C. App. LEXIS 744 (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 N.C. LEXIS 597 (2007).

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 N.C. App. LEXIS 3088 (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 N.C. App. LEXIS 3088 (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 N.C. App. LEXIS 2098 (2005), aff'd, 360 N.C. 588, 636 S.E.2d 787, 2006 N.C. LEXIS 1193 (2006).

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 N.C. LEXIS 1193 (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 N.C. App. LEXIS 1431 (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 N.C. App. LEXIS 2447 (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 N.C. App. LEXIS 2325 (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 N.C. LEXIS 175 (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 N.C. App. LEXIS 640 (2017).

Petition filed by Wake County Human Services (WCHS) was properly verified before a notary by a social worker acting as the authorized representative of WCHS Director, thereby satisfying the verification requirement in N.C. Gen. Stat. § 7B-403(a). In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

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 N.C. App. LEXIS 326 (1995).

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 N.C. App. LEXIS 170 (2015), rev'd, 368 N.C. 705, 782 S.E.2d 502, 2016 N.C. LEXIS 175 (2016).

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 N.C. App. LEXIS 2098 (2005), aff'd, 360 N.C. 588, 636 S.E.2d 787, 2006 N.C. LEXIS 1193 (2006).

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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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 N.C. LEXIS 329 (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 N.C. App. LEXIS 84 (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 N.C. LEXIS 597 (2007).

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 N.C. App. LEXIS 370 (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 N.C. App. LEXIS 1220 (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 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 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, 2009 N.C. LEXIS 626 (2009).

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 N.C. App. LEXIS 2194 (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 N.C. App. LEXIS 3130 (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 N.C. App. LEXIS 3130 (1984); In re Arends, 88 N.C. App. 550, 364 S.E.2d 169, 1988 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 1305 (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 N.C. App. LEXIS 863 (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, 1979 N.C. App. LEXIS 2326, cert. denied, 297 N.C. 610, 257 S.E.2d 223, 1979 N.C. LEXIS 1496 (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 N.C. App. LEXIS 74 (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, 1979 N.C. App. LEXIS 2326, cert. denied, 297 N.C. 610, 257 S.E.2d 223, 1979 N.C. LEXIS 1496 (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 N.C. App. LEXIS 74 (1988).

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 N.C. App. LEXIS 1314 (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, 1996 U.S. App. LEXIS 29356 (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 N.C. App. LEXIS 123 (2003).

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 N.C. App. LEXIS 1314 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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 N.C. App. LEXIS 123 (2003).

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 N.C. App. LEXIS 488 (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 N.C. App. LEXIS 1314 (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 N.C. App. LEXIS 2310 (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 N.C. App. LEXIS 2310 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 123 (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 N.C. App. LEXIS 1109 (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 N.C. App. LEXIS 2310 (1986).

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 N.C. App. LEXIS 1109 (2009).

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 N.C. App. LEXIS 625 (1997).

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 N.C. App. LEXIS 1798 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 1316 (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 N.C. App. LEXIS 1109 (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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 802, aff'd, 361 N.C. 683, 651 S.E.2d 884, 2007 N.C. LEXIS 1103 (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 N.C. App. LEXIS 342 (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 N.C. App. LEXIS 1798 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (2009).

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 N.C. App. LEXIS 324 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 1157 (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 N.C. App. LEXIS 1157 (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 N.C. App. LEXIS 2350 (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 N.C. App. LEXIS 611, sub. op., op. withdrawn, 745 S.E.2d 917, 2013 N.C. App. LEXIS 824 (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 N.C. App. LEXIS 2570 (2007).

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 N.C. App. LEXIS 226, aff'd, 354 N.C. 356, 554 S.E.2d 336, 2001 N.C. LEXIS 1087 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 515 (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 N.C. App. LEXIS 172 (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 N.C. App. LEXIS 1001 (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 N.C. App. LEXIS 449 (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 N.C. App. LEXIS 1185 (2003), limited, In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888, 2005 N.C. App. LEXIS 885 (2005).

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 N.C. App. LEXIS 2201 (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 N.C. App. LEXIS 1631 (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 N.C. App. LEXIS 527 (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 N.C. App. LEXIS 14 (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 N.C. App. LEXIS 435 (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 N.C. App. LEXIS 1191, aff'd, 360 N.C. 163, 622 S.E.2d 494, 2005 N.C. LEXIS 1318 (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 N.C. App. LEXIS 2412 (2006), aff'd, cert. dismissed in part, 362 N.C. 172, 655 S.E.2d 712, 2008 N.C. LEXIS 22 (2008).

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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 1970 (2007), aff'd, 362 N.C. 229, 657 S.E.2d 355, 2008 N.C. LEXIS 145 (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 N.C. App. LEXIS 2071 (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 N.C. App. LEXIS 177 (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 N.C. App. LEXIS 177 (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 N.C. App. LEXIS 67 (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., 745 S.E.2d 917, 2013 N.C. App. LEXIS 824 (Ct. App. 2013), op. withdrawn, 2013 N.C. App. LEXIS 905 (N.C. Ct. App. Aug. 23, 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., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

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 N.C. App. LEXIS 1209 (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 N.C. App. LEXIS 72 (2015).

Because the trial court properly concluded that the Department of Social Services made reasonable efforts to reunify and to eliminate the need for placement of the juvenile, it necessarily complied with the ADA’s directive that a parent not be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program. The mother expressly declined mental health services and services and did not demonstrate skills needed to care for the child or herself. In re A.P., 2022-NCCOA-29, 868 S.E.2d 692, 2022- NCCOA-29, 2022 N.C. App. LEXIS 47 (Ct. App. 2022).

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 N.C. App. LEXIS 611, sub. op., op. withdrawn, 745 S.E.2d 917, 2013 N.C. App. LEXIS 824 (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 N.C. LEXIS 1366 (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 N.C. App. LEXIS 1250 (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 N.C. App. LEXIS 1157 (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 N.C. App. LEXIS 755 (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 N.C. App. LEXIS 1010 (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 N.C. App. LEXIS 375 (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 N.C. App. LEXIS 59 (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 N.C. App. LEXIS 172 (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 N.C. App. LEXIS 72 (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 N.C. App. LEXIS 2250 (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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (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 N.C. App. LEXIS 4049 (1985).

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 N.C. App. LEXIS 763 (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 N.C. App. LEXIS 367 (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 N.C. App. LEXIS 989 (2015).

Legal Significance of Guardianship Understood. —

Trial court did not err in finding that the maternal grandfather understood the legal significance of guardianship; trial court’s colloquy with him, his testimony, and evidence that the children lived with him for a year and he took them to medical appointments and financially provided for them was competent evidence supporting the trial court’s conclusion. In re J.R., 2021-NCCOA-491, 279 N.C. App. 352, 866 S.E.2d 1, 2021- NCCOA-491, 2021 N.C. App. LEXIS 522 (2021).

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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 2250 (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 N.C. App. LEXIS 801 (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., 271 N.C. App. 186, 843 S.E.2d 668, 2020 N.C. App. LEXIS 347 (2020).

Trial court properly performed its statutory duty to verify that a child’s relative and the relative’s long-term partner understood the legal significance of their appointment as guardians because the testimony of the relative, the testimony from a social worker, and the home study report each provided competent evidence that both of the guardians understood the legal significance of the guardianship appointment. In re B.H., 2021-NCCOA-297, 278 N.C. App. 183, 861 S.E.2d 895, 2021- NCCOA-297, 2021 N.C. App. LEXIS 335 (2021).

Trial court did not err by applying the best interest of the juvenile standard and awarding guardianship to the maternal grandfather; the children had already been adjudicated neglected and dependent as they were exposed to the homicide of their brother, who died as a result of abuse, the mother failed to comply with multiple aspects of her case plan, and she acted in a manner inconsistent with her constitutionally protected status as a parent. In re J.R., 2021-NCCOA-491, 279 N.C. App. 352, 866 S.E.2d 1, 2021- NCCOA-491, 2021 N.C. App. LEXIS 522 (2021).

Trial court properly performed its statutory duty to verify that a child’s relative and the relative’s long-term partner understood the legal significance of their appointment as guardians because the testimony of the relative, the testimony from a social worker, and the home study report each provided competent evidence that both of the guardians understood the legal significance of the guardianship appointment. In re B.H., 2021-NCCOA-297, 278 N.C. App. 183, 861 S.E.2d 895, 2021- NCCOA-297, 2021 N.C. App. LEXIS 335 (2021).

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, 1986 N.C. App. LEXIS 2344 (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, 1986 N.C. App. LEXIS 2344 (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 N.C. App. LEXIS 1400 (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 N.C. App. LEXIS 1256 (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). , 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 N.C. App. LEXIS 1048 (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 N.C. App. LEXIS 1048 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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., 2011 N.C. App. LEXIS 820 (N.C. Ct. App. 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 N.C. App. LEXIS 1250 (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 N.C. LEXIS 262 (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 N.C. App. LEXIS 1617 (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 N.C. App. LEXIS 1148 (2010), rev'd, 365 N.C. 171, 711 S.E.2d 118, 2011 N.C. LEXIS 384 (2011).

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 N.C. LEXIS 384 (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, 1988 N.C. App. LEXIS 242 (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, 1985 N.C. App. LEXIS 3039 (1985).

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, 1985 N.C. App. LEXIS 3039 (1985).

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, 1985 N.C. App. LEXIS 3039 (1985).

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, 1988 N.C. App. LEXIS 242 (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., 856 S.E.2d 883 (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 N.C. App. LEXIS 1726 (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 N.C. App. LEXIS 1400 (2011).

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 N.C. App. LEXIS 2190 (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, 1981 U.S. LEXIS 107 (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 N.C. App. LEXIS 2442 (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 N.C. App. LEXIS 694 (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 N.C. App. LEXIS 67 (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 N.C. App. LEXIS 1106 (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., 273 N.C. App. 280, 847 S.E.2d 916, 2020 N.C. App. LEXIS 626 (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 N.C. App. LEXIS 2190 (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 N.C. App. LEXIS 1205 (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 N.C. App. LEXIS 83 (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 N.C. App. LEXIS 1089 (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 N.C. App. LEXIS 1257 (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 N.C. App. LEXIS 2412 (2006), aff'd, cert. dismissed in part, 362 N.C. 172, 655 S.E.2d 712, 2008 N.C. LEXIS 22 (2008).

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 N.C. App. LEXIS 489 (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 N.C. App. LEXIS 414 (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 N.C. App. LEXIS 2116 (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 N.C. App. LEXIS 2116 (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 N.C. App. LEXIS 1205 (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 N.C. App. LEXIS 1074 (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 N.C. App. LEXIS 414 (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 N.C. App. LEXIS 1534 (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 N.C. App. LEXIS 1454 (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 N.C. App. LEXIS 1097 (2017).

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 N.C. LEXIS 384 (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., 272 N.C. App. 55, 845 S.E.2d 888, 2020 N.C. App. LEXIS 464 (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 N.C. App. LEXIS 1589 (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 N.C. App. LEXIS 494 (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., 272 N.C. App. 55, 845 S.E.2d 888, 2020 N.C. App. LEXIS 464 (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, 1971 N.C. App. LEXIS 1553 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (2008), rev'd in part, 363 N.C. 570, 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 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 N.C. App. LEXIS 831, aff'd, 362 N.C. 674, 669 S.E.2d 320, 2008 N.C. LEXIS 988 (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 N.C. App. LEXIS 315 (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 N.C. App. LEXIS 2447 (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, 2009 N.C. LEXIS 731 (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 N.C. LEXIS 435 (1969), aff'd, 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 N.C. App. LEXIS 1043 (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, 1972 N.C. App. LEXIS 2137, cert. denied, 281 N.C. 622, 190 S.E.2d 471, 1972 N.C. LEXIS 1124 (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 N.C. App. LEXIS 833 (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 N.C. App. LEXIS 2568 (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 N.C. App. LEXIS 2314 (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 N.C. App. LEXIS 2514 (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 N.C. App. LEXIS 417 (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 N.C. App. LEXIS 53 (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 N.C. App. LEXIS 417 (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 N.C. App. LEXIS 863 (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 N.C. App. LEXIS 290 (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 N.C. App. LEXIS 1027 (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 N.C. App. LEXIS 602 (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, adjudicate and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

CASE NOTES

Analysis

• 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 N.C. App. LEXIS 43, rev'd, 356 N.C. 288, 570 S.E.2d 212, 2002 N.C. LEXIS 943 (2002), dismissed, 356 N.C. 613, 574 S.E.2d 467, 2002 N.C. LEXIS 1497 (2002).

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., 277 N.C. App. 46, 857 S.E.2d 761, 2021- NCCOA-137, 2021 N.C. App. LEXIS 140 (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 N.C. App. LEXIS 1589 (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 N.C. App. LEXIS 327 (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 N.C. App. LEXIS 614 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 833 (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 N.C. App. LEXIS 2314 (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 N.C. App. LEXIS 2986 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 2568 (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 N.C. App. LEXIS 614 (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 N.C. App. LEXIS 2986 (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 N.C. App. LEXIS 614 (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 N.C. App. LEXIS 833 (2007).

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 N.C. App. LEXIS 4394 (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 N.C. App. LEXIS 2568 (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 N.C. App. LEXIS 417 (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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (2019).

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 N.C. App. LEXIS 2633 (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 N.C. App. LEXIS 303 (2002), cert. denied, 538 U.S. 982, 123 S. Ct. 1799, 155 L. Ed. 2d 673, 2003 U.S. LEXIS 3016 (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 N.C. App. LEXIS 1039 (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 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 1183 (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 N.C. App. LEXIS 2237 (2006), aff'd, 361 N.C. 345, 2007 N.C. LEXIS 419 (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 N.C. App. LEXIS 375 (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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 2610 (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 N.C. App. LEXIS 1308 (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 N.C. App. LEXIS 3124 (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 N.C. App. LEXIS 3124 (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 N.C. App. LEXIS 917 (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 N.C. App. LEXIS 706 (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 N.C. App. LEXIS 971 (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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (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 N.C. App. LEXIS 417 (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 N.C. App. LEXIS 290 (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 N.C. App. LEXIS 933 (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, 1992 N.C. App. LEXIS 764 (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 N.C. App. LEXIS 425 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 435 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 1812 (2007), aff'd in part, modified, 362 N.C. 446, 665 S.E.2d 54, 2008 N.C. LEXIS 686 (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., 2005 N.C. App. LEXIS 1091 (N.C. Ct. App. June 7, 2005), op. withdrawn, 2005 N.C. App. LEXIS 1192 (N.C. Ct. App. June 16, 2005), sub. op., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 1150 (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., 2005 N.C. App. LEXIS 1091 (N.C. Ct. App. June 7, 2005), op. withdrawn, 2005 N.C. App. LEXIS 1192 (N.C. Ct. App. June 16, 2005), sub. op., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 1163, aff'd, 362 N.C. 82, 653 S.E.2d 143, 2007 N.C. LEXIS 1229 (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 N.C. App. LEXIS 1168 (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 N.C. App. LEXIS 840 (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., 2005 N.C. App. LEXIS 1091 (N.C. Ct. App. June 7, 2005), op. withdrawn, 2005 N.C. App. LEXIS 1192 (N.C. Ct. App. June 16, 2005), sub. op., 172 N.C. App. 708, 617 S.E.2d 325, 2005 N.C. App. LEXIS 1785 (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 N.C. App. LEXIS 316 (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, adjudicate and state conclusions of law arising on those facts, and enter judgment accordingly. In re R.P., 856 S.E.2d 868 (Mar. 16, 2021).

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 N.C. App. LEXIS 1444 (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 N.C. App. LEXIS 1910 (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 N.C. App. LEXIS 1476 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 107 (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 N.C. App. LEXIS 107 (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 N.C. App. LEXIS 3167 (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 N.C. App. LEXIS 3809 (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 N.C. App. LEXIS 2633 (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 N.C. App. LEXIS 2500 (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 N.C. App. LEXIS 3077 (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 N.C. App. LEXIS 652 (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 N.C. App. LEXIS 496 (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 N.C. App. LEXIS 604 (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 N.C. App. LEXIS 3124 (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 N.C. App. LEXIS 3124 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 1182 (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 N.C. App. LEXIS 2086 (2007).

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 N.C. App. LEXIS 635 (2017).

District court properly adjudicated 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 brother took the photos, while the detective determined that the mother had taken them. In re N.K., 274 N.C. App. 5, 851 S.E.2d 389, 2020 N.C. App. LEXIS 718 (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., 276 N.C. App. 327, 857 S.E.2d 345, 2021- NCCOA-94, 2021 N.C. App. LEXIS 122 (2021).

Trial court did not err by adjudicating the child a neglected juvenile because its findings, including the parents’ and the child’s positive drug test results, showed that the child lived in an environment injurious to his welfare. In addition, both parents admitted to previous substance use, two heroin overdoses necessitating emergency medical response occurred in the home, and drug paraphernalia was present in the home. In re K.H., 2022-NCCOA-3, 867 S.E.2d 757, 2022- NCCOA-3, 2022 N.C. App. LEXIS 8 (Ct. App. 2022).

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 N.C. App. LEXIS 971 (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 N.C. App. LEXIS 971 (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 N.C. App. LEXIS 594 (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 N.C. App. LEXIS 1039 (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 N.C. App. LEXIS 74 (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 N.C. App. LEXIS 1027 (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., 272 N.C. App. 30, 845 S.E.2d 182, 2020 N.C. App. LEXIS 461 (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 N.C. App. LEXIS 2350 (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 N.C. App. LEXIS 917 (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 N.C. App. LEXIS 1099 (2008), aff'd, 363 N.C. 254, 675 S.E.2d 361, 2009 N.C. LEXIS 341 (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 N.C. App. LEXIS 706 (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 N.C. App. LEXIS 1812 (2007), aff'd in part, modified, 362 N.C. 446, 665 S.E.2d 54, 2008 N.C. LEXIS 686 (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 N.C. App. LEXIS 2314 (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 N.C. LEXIS 686 (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 N.C. LEXIS 686 (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., 856 S.E.2d 868 (Mar. 16, 2021).

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 N.C. LEXIS 1411 (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 N.C. App. LEXIS 252 (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 N.C. App. LEXIS 175 (2004).

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 N.C. App. LEXIS 2099 (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 N.C. LEXIS 1026 (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 N.C. App. LEXIS 1454 (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 N.C. App. LEXIS 2555 (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 N.C. App. LEXIS 279 (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 N.C. LEXIS 1026 (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 N.C. App. LEXIS 550 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 2493 (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 N.C. App. LEXIS 2493 (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 N.C. LEXIS 1330 (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 N.C. App. LEXIS 2500 (1987).

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 N.C. App. LEXIS 990 (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 N.C. App. LEXIS 435 (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 N.C. App. LEXIS 971 (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 N.C. App. LEXIS 989 (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 N.C. LEXIS 1765 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 515 (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., 276 N.C. App. 327, 857 S.E.2d 345, 2021- NCCOA-94, 2021 N.C. App. LEXIS 122 (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 N.C. App. LEXIS 494 (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 N.C. App. LEXIS 1066 (2016), aff'd, 370 N.C. 387, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (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 N.C. App. LEXIS 3017 (1983), modified, 311 N.C. 586, 319 S.E.2d 567, 1984 N.C. LEXIS 1765 (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 N.C. App. LEXIS 4394 (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 N.C. App. LEXIS 2514 (2006).

Emotional Damage. —Consideration of Unadjudicated Acts Unrelated to Petition. —

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 N.C. App. LEXIS 2641 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 2986 (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 N.C. App. LEXIS 1066 (2016), aff'd, 370 N.C. 387, 808 S.E.2d 142, 2017 N.C. LEXIS 1022 (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 N.C. App. LEXIS 990 (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 N.C. App. LEXIS 123 (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 N.C. LEXIS 1411 (1979); In re Lail, 55 N.C. App. 238, 284 S.E.2d 731, 1981 N.C. App. LEXIS 2986 (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 N.C. LEXIS 1765 (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 N.C. App. LEXIS 435 (2005); In re C.B., 171 N.C. App. 341, 614 S.E.2d 579, 2005 N.C. App. LEXIS 1205 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 768 (2017).

Mother cited no authority regarding the timing of a change in the plan to achieve permanence, and as long as the trial court considered the factors as required by statute and made appropriate findings, as here, no abuse of discretion was found in the trial court’s decision to change to guardianship. In re B.R.W., 2021 N.C. App. LEXIS 345 (July 20, 2021).

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 N.C. App. LEXIS 101 (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 N.C. App. LEXIS 243 (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., 856 S.E.2d 868 (Mar. 16, 2021).

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 N.C. App. LEXIS 933 (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 N.C. App. LEXIS 2019 (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 N.C. App. LEXIS 2019 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 251 (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 N.C. App. LEXIS 2855 (1981), vacated, 305 N.C. 565, 290 S.E.2d 688, 1982 N.C. LEXIS 1330 (1982).

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 N.C. LEXIS 1765 (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, 1986 N.C. App. LEXIS 1980 (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 N.C. App. LEXIS 2693 (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 N.C. App. LEXIS 2310 (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 N.C. App. LEXIS 2671 (1987); In re Kennedy, 103 N.C. App. 632, 406 S.E.2d 307, 1991 N.C. App. LEXIS 862 (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 N.C. App. LEXIS 375 (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., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (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 N.C. App. LEXIS 2310 (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 N.C. App. LEXIS 156 (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, 1979 N.C. App. LEXIS 2326, cert. denied, 297 N.C. 610, 257 S.E.2d 223, 1979 N.C. LEXIS 1496 (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 N.C. App. LEXIS 2671 (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 N.C. App. LEXIS 251 (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 N.C. App. LEXIS 2310 (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 N.C. App. LEXIS 1061 (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 N.C. App. LEXIS 2334 (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 N.C. App. LEXIS 2693 (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 N.C. App. LEXIS 1043 (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 N.C. App. LEXIS 949 (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, 1986 N.C. App. LEXIS 2344 (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 N.C. App. LEXIS 1798 (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 N.C. App. LEXIS 740 (2009).

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 N.C. App. LEXIS 873 (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., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

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 N.C. App. LEXIS 667 (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 N.C. App. LEXIS 604 (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., 274 N.C. App. 5, 851 S.E.2d 389, 2020 N.C. App. LEXIS 718 (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., 272 N.C. App. 19, 845 S.E.2d 176, 2020 N.C. App. LEXIS 468 (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 N.C. App. LEXIS 59 (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 N.C. App. LEXIS 804 (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 N.C. LEXIS 1330 (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 N.C. App. LEXIS 866 (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 N.C. App. LEXIS 866 (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 N.C. App. LEXIS 866 (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 N.C. App. LEXIS 866 (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 N.C. App. LEXIS 2334 (2011).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions below were rendered prior to enactment of this Chapter.

CASE NOTES

Neglect. —

Trial court did not err in concluding that grounds existed to terminate a mother’s parental rights based on neglect because the child was removed from the mother’s care and adjudicated to be a neglected juvenile primarily due to the mother’s unstable housing and history of domestic violence and the court found a likelihood of repetition of neglect if the child was returned to the mother’s care due to a lack of stable housing and unresolved domestic violence issues. In re M.A. (Aug. 27, 2021).

Trial court did not err in concluding that grounds existed to terminate a mother’s parental rights based on neglect because the child was removed from the mother’s care and adjudicated to be a neglected juvenile primarily due to the mother’s unstable housing and history of domestic violence and the court found a likelihood of repetition of neglect if the child was returned to the mother’s care due to a lack of stable housing and unresolved domestic violence issues. In re M.A., 2021-NCSC-99, 378 N.C. 462, 862 S.E.2d 169, 2021- NCSC-99, 2021 N.C. LEXIS 852 (2021).

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 N.C. App. LEXIS 990 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 802, aff'd, 361 N.C. 683, 651 S.E.2d 884, 2007 N.C. LEXIS 1103 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 706 (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 N.C. App. LEXIS 1299 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302, 2007 N.C. LEXIS 213 (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 N.C. App. LEXIS 1043 (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 N.C. LEXIS 686 (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 N.C. App. LEXIS 377 (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 N.C. App. LEXIS 1075 (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 N.C. App. LEXIS 1497 (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 N.C. App. LEXIS 652 (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 N.C. App. LEXIS 2350 (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 N.C. App. LEXIS 611, sub. op., op. withdrawn, 745 S.E.2d 917, 2013 N.C. App. LEXIS 824 (2013).

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 N.C. App. LEXIS 1209 (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 N.C. App. LEXIS 279 (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 N.C. LEXIS 686 (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 N.C. App. LEXIS 279 (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 N.C. App. LEXIS 1150 (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 N.C. App. LEXIS 251 (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 N.C. App. LEXIS 494 (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 N.C. App. LEXIS 378, aff'd, 361 N.C. 686, 651 S.E.2d 883, 2007 N.C. LEXIS 1100 (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 N.C. App. LEXIS 2494 (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 N.C. App. LEXIS 489 (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 N.C. App. LEXIS 375 (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 N.C. App. LEXIS 949 (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 N.C. App. LEXIS 171 (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 N.C. App. LEXIS 1043 (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., 2011 N.C. App. LEXIS 820 (N.C. Ct. App. 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 N.C. App. LEXIS 59 (2014).

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., 276 N.C. App. 291, 856 S.E.2d 904, 2021- NCCOA-92, 2021 N.C. App. LEXIS 110 (2021).

Trial Court’s Discretion. —

Father failed to identify how the department’s efforts for reunification were not reasonable; the trial court made visitation with the children contingent on clean drug screens, and the department could not defy the trial court’s orders. Furthermore, there was no indication that father requested visitation while incarcerated and only exercised 5 out of 40 supervised visitations offered by the department. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Father failed to identify how the department’s efforts for reunification were not reasonable; the trial court made visitation with the children contingent on clean drug screens, and the department could not defy the trial court’s orders. Furthermore, there was no indication that father requested visitation while incarcerated and only exercised 5 out of 40 supervised visitations offered by the department. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (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 N.C. App. LEXIS 1167 (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 N.C. App. LEXIS 375 (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., 273 N.C. App. 37, 848 S.E.2d 13, 2020 N.C. App. LEXIS 607 (2020), aff'd, 377 N.C. 417, 858 S.E.2d 607, 2021- NCSC-60, 2021 N.C. LEXIS 540 (2021).

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., 273 N.C. App. 37, 848 S.E.2d 13, 2020 N.C. App. LEXIS 607 (2020), aff'd, 377 N.C. 417, 858 S.E.2d 607, 2021- NCSC-60, 2021 N.C. LEXIS 540 (2021).

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 N.C. App. LEXIS 1209 (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 N.C. App. LEXIS 989 (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 N.C. App. LEXIS 604 (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 N.C. App. LEXIS 275 (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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (2019).

Trial court did not err by limiting the mother’s visitation with her children to one-hour of highly supervised weekly visits because the parents failed to provide the name of an appropriate alternative placement before the temporary placement ended, the children were placed with a foster family one-and-a-half hour drive the parents’ home, and the order allowed the foster parents and the parents to agree to additional visitation time. In re W.C.T., 2021-NCCOA-559, 867 S.E.2d 14, 2021- NCCOA-559, 2021 N.C. App. LEXIS 580 (Ct. App. 2021).

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 N.C. App. LEXIS 1167 (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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (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., 268 N.C. App. 61, 834 S.E.2d 637, 2019 N.C. App. LEXIS 869 (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., 272 N.C. App. 585, 847 S.E.2d 427, 2020 N.C. App. LEXIS 587 (2020).

Although the visitation order’s provision did specify a minimum amount of visitation of four hours per month, the provision did not unambiguously articulate the minimum frequency and length of the visits, and remand was required. In re J.R., 2021-NCCOA-491, 279 N.C. App. 352, 866 S.E.2d 1, 2021- NCCOA-491, 2021 N.C. App. LEXIS 522 (2021).

Limited Degree of Flexibility Upheld. —

Trial court did not grant the guardian any unfettered discretion to modify or suspend visitation; instead, the trial court left only the day and time of each visit to be agreed upon by mother and the guardian, and the trial court did not abuse its discretion by granting this limited degree of flexibility to the parties. In re J.R., 2021-NCCOA-491, 279 N.C. App. 352, 866 S.E.2d 1, 2021- NCCOA-491, 2021 N.C. App. LEXIS 522 (2021).

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 N.C. App. LEXIS 43 (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 N.C. App. LEXIS 327 (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., 272 N.C. App. 487, 846 S.E.2d 584, 2020 N.C. App. LEXIS 565 (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., 273 N.C. App. 280, 847 S.E.2d 916, 2020 N.C. App. LEXIS 626 (2020).

Trial court improperly gave the father substantial discretion over the circumstances of the mother’s visitation by allowing him to choose the location and supervisor of the visitation, even though the father testified he was not willing to facilitate or supervise the mother’s visits and did not want her to be part of the child’s life. In re A.P., 2022-NCCOA-29, 868 S.E.2d 692, 2022- NCCOA-29, 2022 N.C. App. LEXIS 47 (Ct. App. 2022).

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., 268 N.C. App. 61, 834 S.E.2d 637, 2019 N.C. App. LEXIS 869 (2019).

CASE NOTES

Analysis

• I. In General
• II. Decisions Under Former G.S. 7B-906
• III. Decisions Under Former G.S. 7B-907

CASE NOTES

Amendment not Applicable. —

Statutory amendment was not applicable in a dependency proceeding because, although the written permanency planning review (PPR) order was signed and filed after the effective date of the amendment, the PPR hearing was conducted and concluded prior to the effective date, and the court’s ruling that reunification efforts would be ceased and the child’s permanent plan would be changed to custody with paternal cousins was announced in open court on that date. In re E.M., 249 N.C. App. 44, 790 S.E.2d 863, 2016 N.C. App. LEXIS 862 (2016).

Section Not Applicable. —

Because termination of parental rights case was not a permanency planning hearing, this section did not apply. In re T.H., 266 N.C. App. 41, 832 S.E.2d 162, 2019 N.C. App. LEXIS 529 (2019).

Multiple Plans Contemplated. —

Statute clearly contemplates the use of multiple, concurrent plans including reunification and adoption, and during concurrent planning, the Department of Social Services is required to continue making reasonable reunification efforts until reunification is eliminated as a permanent plan; under the framework of concurrent planning, the prior order here did not explicitly or implicitly eliminate reunification as a permanent plan, and thus the order failed to meet the requirements for appeal. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875, 2018 N.C. App. LEXIS 260 (2018).

Notice of Change in Recommendations or Plan. —

Because the hearing was designated as a permanency planning hearing, mother was on notice that the trial court could change the permanent plan for the juveniles and that she needed to present all evidence relevant to her arguments concerning proper disposition; although mother argued that notice of a change in recommendations be given in advance of the hearing, such notice is not required by the chapter and mother’s due process rights were not violated. In re H.A.J., 377 N.C. 43, 855 S.E.2d 464, 2021- NCSC-26, 2021 N.C. LEXIS 282 (2021).

Reunification. —

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 N.C. App. LEXIS 990 (2017).

Trial court’s findings of fact were not sufficient to support the court’s conclusion that reunification efforts should have ceased since the evidence contained in the agency and guardian ad litem reports, while indicating concern with the parents’ extensive substance abuse history and the sustainability of recent improvements, did not support the finding, and the findings provided little indication as to what clear and convincing evidence the court found persuasive in reaching the court’s conclusion. In re I.K., 250 N.C. App. 547, 818 S.E.2d 359 (2018).

Findings that efforts to reunify a mother and child should cease were sufficient because (1) the findings were not contradictory, (2) the mother acted in a manner inconsistent with the child’s health or safety, and (3) the findings addressed the substance of G.S. 7B-906.2(b). In re M.T.-L.Y., 265 N.C. App. 454, 829 S.E.2d 496, 2019 N.C. App. LEXIS 475, writ denied, 372 N.C. 709, 2019 N.C. LEXIS 1269 (2019).

Termination of parental rights and permanency plan orders were vacated because the orders did not comply with recent precedent requiring that an initial permanency plan order contain a plan for reunification. In re M.T.-L.Y., 265 N.C. App. 454, 829 S.E.2d 496, 2019 N.C. App. LEXIS 475, writ denied, 372 N.C. 709, 2019 N.C. LEXIS 1269 (2019).

Ceasing reunification efforts was not error where an assigned social worker’s testimony that the mother attempted but had not been able to show that she could obtain and maintain information or parent the children in a safe environment supported the findings, notwithstanding any evidence to the contrary. Even though a finding that the county social services department did not have a release for the mother’s mental health records was erroneous, it did not impact the ultimate determination. In re C.M., 273 N.C. App. 427, 848 S.E.2d 749, 2020 N.C. App. LEXIS 665 (2020).

Even if the trial court had not used the precise language of G.S. 7B-906.2(b), that was not fatal as the trial court’s findings addressed the health, safety, and welfare of the children. In re C.M., 273 N.C. App. 427, 848 S.E.2d 749, 2020 N.C. App. LEXIS 665 (2020).

No evidence showed mother abusing medications, having mental health breakdowns, or being involved in unhealthy relationships for three years after child was removed from her care, her limited communications and visits with the child were described as appropriate, and she maintained stable employment and housing; finding reunification efforts would be unsuccessful or inconsistent with child’s health was unsupported by clear evidence and did not meet the mandatory requirements of the statute. In re J.C.-B., 856 S.E.2d 883 (Mar. 16, 2021).

Nothing indicates concrete action steps or that timelines were established from contacts, reviews, and assessments to reunify child with mother, department made no diligent or substantial efforts towards reunification in the more than 10 months between court’s decision in March 2019 and the hearing in January 2020, and the statutorily required efforts were arguably non-existent. In re J.C.-B., 856 S.E.2d 883 (Mar. 16, 2021).

Neither the trial court’s order nor the department’s evaluation provided evidence to support findings specifically addressing the statutory factors; trial court found that the child’s therapist felt the child needed to remain with grandmother, that the mother was taking medications for mood and anxiety, and that the mother did not file a report of her counseling or provide a signed release to her counselors, but these findings were inadequate to support the conclusion that reunification efforts should cease. In re J.C.-B., 856 S.E.2d 883 (Mar. 16, 2021).

Trial court’s findings of fact reflecting the father’s progress directly contradicted the trial court’s conclusion that reunification would be unsuccessful or inconsistent with the health or safety of his children; the father completed all his services and changed his behavior based on what he learned from those services. In re J.M., 276 N.C. App. 291, 856 S.E.2d 904, 2021- NCCOA-92, 2021 N.C. App. LEXIS 110 (2021).

Trial court failed to make the findings required by G.S. 7B-906.2(b) and (d) to cease reunification efforts, which was reversible error; the evidence did not explain why it would be contrary to the child’s welfare to remain in foster care six more months to allow the mother to try to secure housing. In re S.D., 276 N.C. App. 309, 857 S.E.2d 332, 2021- NCCOA-93, 2021 N.C. App. LEXIS 123 (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., 276 N.C. App. 327, 857 S.E.2d 345, 2021- NCCOA-94, 2021 N.C. App. LEXIS 122 (2021).

Trial court erred when it ceased reunification efforts; mother engaged in all services required of her in order to correct the conditions that led to the removal of the children, including requiring the father to move out, and a finding that reunification efforts would be unsuccessful or inconsistent with the children’s health, safety, and need for a permanent home was contradictory to all evidence presented to the trial court. In re J.M., 276 N.C. App. 291, 856 S.E.2d 904, 2021- NCCOA-92, 2021 N.C. App. LEXIS 110 (2021).

Court failed to make required findings of fact because, while the record contained little evidence presented by the parties on the issue of the mother’s availability, the written report to the trial court for the permanency planning hearing included information about the mother’s attendance at court dates and scheduled visitations, as well as her failure to attend child and family team meetings; the information contained in the reports did not satisfy the trial court’s statutory obligation. In re L.R.L.B., 377 N.C. 311, 857 S.E.2d 105, 2021- NCSC-49, 2021 N.C. LEXIS 403 (2021).

Elimination of reunification from the permanent plan implicitly relieved the department of its duty to undertake reunification efforts pursuant to G.S. 7B-906.2(b). In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court addressed the purpose of G.S. 7B-906.2(d)(4) by finding that father was incarcerated for over one year, failed to address anger management and parenting skills components of his case, failed to obtain stable housing, and it would be contrary to the children’s general welfare to be returned to his care. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court satisfied the substance of G.S. 7B-906.2(b) by finding that father continued to engage in activities resulting in his incarceration, repeatedly refused to submit to drugs screens, and had made no meaningful effort to engage with his case plan by attaining personal stability or providing support for the children; these facts supported a determination that returning the children to father would be contrary to their health, safety, and general welfare. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

While the trial court’s orders lacked an express finding using the term “reasonable” or “reasonableness” regarding the department’s efforts, trial court’s findings of fact addressed the statutory concern of G.S. 7B-906.2(c); the orders detailed the efforts made by the department to reunify the children with father and mother. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Father failed to identify how the department’s efforts for reunification were not reasonable; the trial court made visitation with the children contingent on clean drug screens, and the department could not defy the trial court’s orders. Furthermore, there was no indication that father requested visitation while incarcerated and only exercised 5 out of 40 supervised visitations offered by the department. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Elimination of reunification from the children’s permanent plan was proper; although the trial court did not use the precise language of the statutes in its findings, the trial court addressed the substance of both statutes’ concerns and cited mother’s failure to obtain stable housing or employment, her continued cohabitation with her boyfriend despite the children’s detailed accounts of his domestic violence against her, and the unfavorable results of her psychological evaluation. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court’s order ceasing reunification efforts with a father comported with the statutory requirements because, at the time of the permanency-planning hearing, the father had made no meaningful steps toward reunification, was incarcerated for a recent act of domestic violence, had submitted to just one drug screen that was positive for marijuana and cocaine, and had failed to attend a scheduled appointment to begin substance abuse treatment. In re D.M., 2021-NCSC-95, 378 N.C. 435, 861 S.E.2d 740, 2021- NCSC-95, 2021 N.C. LEXIS 853 (2021).

Trial court erred by eliminating reunification as a primary or secondary permanent plan without first making required findings of fact, particularly that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety; it was implausible to conclude that the primary permanent plan had been achieved as the juvenile was placed in the custody of persons without any biological connection to him, and remand was required. In re K.P., 2021-NCCOA-268, 278 N.C. App. 42, 861 S.E.2d 754, 2021- NCCOA-268, 2021 N.C. App. LEXIS 283 (2021).

When a hearing was designated as an initial dispositional hearing but became a combined dispositional and permanency planning hearing, because reunification was part of the initial permanent plan, the trial court was able to eliminate reunification at a subsequent hearing. In re E.A.C., 2021-NCCOA-298, 2021- NCCOA-298, 2021 N.C. App. LEXIS 306 (N.C. Ct. App. July 6, 2021).

Elimination of reunification from the permanent plan implicitly relieved the department of its duty to undertake reunification efforts pursuant to G.S. 7B-906.2(b). In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court’s order ceasing reunification efforts with a father comported with the statutory requirements because, at the time of the permanency-planning hearing, the father had made no meaningful steps toward reunification, was incarcerated for a recent act of domestic violence, had submitted to just one drug screen that was positive for marijuana and cocaine, and had failed to attend a scheduled appointment to begin substance abuse treatment. In re D.M., 2021-NCSC-95, 378 N.C. 435, 861 S.E.2d 740, 2021- NCSC-95, 2021 N.C. LEXIS 853 (2021).

Trial court addressed the purpose of G.S. 7B-906.2(d)(4) by finding that father was incarcerated for over one year, failed to address anger management and parenting skills components of his case, failed to obtain stable housing, and it would be contrary to the children’s general welfare to be returned to his care. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court satisfied the substance of G.S. 7B-906.2(b) by finding that father continued to engage in activities resulting in his incarceration, repeatedly refused to submit to drugs screens, and had made no meaningful effort to engage with his case plan by attaining personal stability or providing support for the children; these facts supported a determination that returning the children to father would be contrary to their health, safety, and general welfare. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

While the trial court’s orders lacked an express finding using the term “reasonable” or “reasonableness” regarding the department’s efforts, trial court’s findings of fact addressed the statutory concern of G.S. 7B-906.2(c); the orders detailed the efforts made by the department to reunify the children with father and mother. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Father failed to identify how the department’s efforts for reunification were not reasonable; the trial court made visitation with the children contingent on clean drug screens, and the department could not defy the trial court’s orders. Furthermore, there was no indication that father requested visitation while incarcerated and only exercised 5 out of 40 supervised visitations offered by the department. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Elimination of reunification from the children’s permanent plan was proper; although the trial court did not use the precise language of the statutes in its findings, the trial court addressed the substance of both statutes’ concerns and cited mother’s failure to obtain stable housing or employment, her continued cohabitation with her boyfriend despite the children’s detailed accounts of his domestic violence against her, and the unfavorable results of her psychological evaluation. In re A.P.W., 2021-NCSC-93, 378 N.C. 405, 861 S.E.2d 819, 2021- NCSC-93, 2021 N.C. LEXIS 854 (2021).

Trial court did not abuse the court’s discretion by ceasing reunification efforts between a father and the father’s child because the court made findings of fact as to the father’s arrest on sex offense charges involving juveniles, the discovery of photographs of naked children on the father’s cellular phone, the substantiation of the father’s sexual abuse of the child and exposure of the child to an injurious environment. In addition, the court found that the father was incarcerated and lacked an adequate source of income to support the child. In re A.K., 2022-NCSC-2, 867 S.E.2d 879, 2022- NCSC-2, 2022 N.C. LEXIS 149 (2022).

Failure to Adopt Permanency Plan for Child. —

In a case in which the father appealed from the trial court’s permanency planning order changing legal custody of his child, the trial court improperly entered a permanency planning order granting custody of the child to the child’s maternal grandparents as the trial court failed to adopt a permanent plan for the child as mandated by this statute; thus, the appellate court reversed the trial court’s permanency planning order awarding custody of the child to the maternal grandparents and waiving further review hearings. In re D.A., 262 N.C. App. 559, 822 S.E.2d 664, 2018 N.C. App. LEXIS 1169 (2018).

Evidence Sufficient. —

Sufficient evidence supported findings that a mother acted in a manner that was inconsistent with a child’s health or safety because the evidence showed the mother (1) did not communicate the mother’s exact address or employment status to the department of social services while living in Virginia, (2) had no place to live, (3) made only three payments towards the child’s medical care, and (4) stated the mother was unable to care for the child. In re M.T.-L.Y., 265 N.C. App. 454, 829 S.E.2d 496, 2019 N.C. App. LEXIS 475, writ denied, 372 N.C. 709, 2019 N.C. LEXIS 1269 (2019).

Trial court did not abuse its discretion in its permanency planning order granting guardianship of the child to her grandmother because ample evidence supported the trial court’s continuing concerns with the parents’ domestic violence, substance abuse, and inadequate housing including the parents testing positive for using marijuana and the cluttered, crowded, dilapidated single-wide trailer in which the parents resided with their newborn and the father’s mother. In re I.K., 273 N.C. App. 37, 848 S.E.2d 13, 2020 N.C. App. LEXIS 607 (2020), aff'd, 377 N.C. 417, 858 S.E.2d 607, 2021- NCSC-60, 2021 N.C. LEXIS 540 (2021).

Trial court did not err by applying the best interest of the juvenile standard and awarding guardianship to the maternal grandfather; the children had already been adjudicated neglected and dependent as they were exposed to the homicide of their brother, who died as a result of abuse, the mother failed to comply with multiple aspects of her case plan, and she acted in a manner inconsistent with her constitutionally protected status as a parent. In re J.R., 2021-NCCOA-491, 279 N.C. App. 352, 866 S.E.2d 1, 2021- NCCOA-491, 2021 N.C. App. LEXIS 522 (2021).

Findings Sufficient. —

Trial court made written findings of fact in accordance with the statute, including that mother had not been actively participating in her case plan, failed to maintain housing, missed visitations, and continued using alcohol; while the findings did not use the precise statutory language, the findings did address the necessary factors by showing that the trial court considered the evidence in light of whether reunification would be futile or inconsistent with the child’s health and safety. In re H.A.J., 377 N.C. 43, 855 S.E.2d 464, 2021- NCSC-26, 2021 N.C. LEXIS 282 (2021).

Trial court properly terminated a father’s parental rights because the father tested positive for marijuana after completing his court-ordered substance abuse treatment program, an investigator testified that when he visited the child’s home, the clutter in the home was piled to the ceiling in some areas and there were holes in the floor of the home covered with plywood, and evidence was presented concerning the father’s history with domestic violence and continued aggressive and violent behavior. In re I.K., 2021-NCSC-60, 377 N.C. 417, 858 S.E.2d 607, 2021- NCSC-60, 2021 N.C. LEXIS 540 (2021).

Mother had not shown any error by the trial court in ceasing the mother’s visitation because the trial court received new information, the mother only attended six visits with the daughter, and she appeared at a visit impaired, the mother’s calls with the daughter were at times not appropriate, the mother continued to have positive drug screens, refused some drug screenings, did not attend a referred parenting class, and never completed her psychological evaluation, and the county Department of Social Services was diligently using and providing preventive or reunification services. In re C.C.G., 2022-NCSC-3, 868 S.E.2d 38, 2022- NCSC-3, 2022 N.C. LEXIS 148 (2022).

Termination Order Sufficient. —

Father’s petition for certiorari was denied because a termination order did include findings, unchallenged by the father, that supported cessation of reunification efforts, and the contents of termination orders cured defects in a prior permanency planning order; the father failed to include the transcripts of the permanency planning hearings or request their inclusion via a motion to the court of appeals. In re A.L.L., 254 N.C. App. 252, 802 S.E.2d 598, 2017 N.C. App. LEXIS 545 (2017).

Trial court did not make all of the required findings before ceasing reunification efforts, thus a remand was necessary, where it made no finding regarding whether the mother demonstrated a lack of success in participating or cooperating with the county human services agency and the guardian ad litem or whether she has remained available to the court, the county agency, or the guardian ad litem. In re J.M., 271 N.C. App. 186, 843 S.E.2d 668, 2020 N.C. App. LEXIS 347 (2020).

In a case in which a mother and father appealed from an order granting full physical and legal custody of their child to court-approved caretakers, the appellate court concluded the trial court failed to make findings under G.S. 7B-906.2(b) related to whether the parents were acting in a manner inconsistent with their child’s health or safety. The order also contained no findings that embraced the requisite ultimate finding that reunification efforts clearly would be unsuccessful or would be inconsistent with the child’s health or safety. In re D.A., 258 N.C. App. 247, 811 S.E.2d 729, 2018 N.C. App. LEXIS 224 (2018).

Trial court’s order ceasing reunification efforts and excluding reunification of a mother with the mother’s children as a permanent plan was not an abuse of discretion because the evidence supported the court’s finding that the mother only made some progress with respect to the mother’s parenting skills. Moreover, the court did not abuse its discretion in determining that ceasing reunification was in the best interests of the children. In re J.H., 373 N.C. 264, 837 S.E.2d 847, 2020 N.C. LEXIS 43 (2020).

Requirements Met. —

Trial court complied with its obligations under the statue because it set a primary and secondary plan and determined that no further reunification efforts were required; the trial court’s findings, which were supported by testimony and evidence introduced at the hearing, demonstrated that the father completely failed to comply with his case plan while the child was in a safety placement with her sister. In re H.L., 256 N.C. App. 450, 807 S.E.2d 685, 2017 N.C. App. LEXIS 990 (2017).

Requirements Not Met. —

Trial court’s unsupported conclusory statement that reasonable efforts to reunify the family would have been futile and inconsistent with the children’s health or safety did not meet the requirements in this section and case law. In re K.L., 254 N.C. App. 269, 802 S.E.2d 588, 2017 N.C. App. LEXIS 500 (2017).

Findings were insufficient to demonstrate the degree of success or failure towards reunification as they demonstrated only that the Department of Social Services was unable to locate any services that could help the mother progress towards reunification and that the mother was unable to make progress towards reunification because she was unable to obtain a U Visa; the trial court erred in removing reunification as a primary or secondary plan and in ceasing reunification efforts without making sufficient findings of fact. In re E.A.C., 2021-NCCOA-298, 278 N.C. App. 608, 863 S.E.2d 433, 2021- NCCOA-298, 2021 N.C. App. LEXIS 620 (2021).

Trial court erred in removing reunification as a primary or secondary plan and in ceasing reunification efforts because the court did not make sufficient findings of fact as the findings were insufficient to demonstrate the degree of success or failure towards reunification. The findings only demonstrated that a social services agency was unable to locate any services that could help a parent progress towards reunification and that the parent was unable to make progress towards reunification because the parent was unable to obtain a U Visa. In re E.A.C., 2021-NCCOA-298, 2021- NCCOA-298, 2021 N.C. App. LEXIS 306 (N.C. Ct. App. July 6, 2021).

Permanent guardianship of a child to foster parents was in err because nothing in the court’s permanency planning order or in the court’s rulings pronounced in open court supported the court’s conclusory finding that the biological parents were unfit to parent the child. Furthermore, the trial court failed to make statutorily required findings of fact related to whether the parents demonstrated the degree of failure towards reunification necessary to support ceasing reunification efforts. In re A.W., 2021-NCCOA-586, 867 S.E.2d 235, 2021- NCCOA-586, 2021 N.C. App. LEXIS 599 (Ct. App. 2021).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Foster Parents May Not Bring Custody Action. —

Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department’s or agency’s exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699, 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

The case of Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981) does not prohibit the transfer of legal care, custody and control of a foster child to its foster parents. Oxendine stands for the proposition that foster parents have no standing to bring a custody action pursuant to G.S. 50-13.2 et seq. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

But Foster Parents Have Right to Be Heard. —

At the very least, foster parents have the right for an opportunity to be heard, a right which derives from the child’s right to have his or her best interests protected. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

This section recognizes the right of foster parents to participate in review proceedings concerning the placement and care of their foster child after termination of parental rights. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

This section requires that notice of review be given to foster parents and requires the foster parents to attend the review proceedings. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Intervention by Foster Parents in Custody Proceeding. —

In a proceeding brought by DSS, in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child’s foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986) (distinguishing) Oxendine v. Department of Social Servs., 303 N.C. 699, 281 S.E.2d 370 (1981).

Power of Court to Award 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, 1986 N.C. App. LEXIS 2344 (1986).

Responsibility of Guardian ad Litem in Adoption Process. —

The legislature charged the county department of social services or other licensed child-placing agency with the responsibility of selecting adoptive parents. The guardian ad litem’s responsibility during this process is to raise any issue of the agency’s abuse of discretion within ten days after she receives written notice of the filing of the adoption petition. The legislature provided no other responsibility for the guardian ad litem once a petition for adoption is filed and none seems appropriate. In re James S., 86 N.C. App. 364, 357 S.E.2d 430, 1987 N.C. App. LEXIS 2700 (1987).

Under G.S. 48-16(a), the legislature clearly vested the Department of Social Services with the duty and responsibility to make investigations regarding adoptions. Thus, absent any responsibilities or duties to perform, the guardian ad litem is superfluous to an adoption proceeding. In re James S., 86 N.C. App. 364, 357 S.E.2d 430, 1987 N.C. App. LEXIS 2700 (1987).

The guardian ad litem is empowered under former G.S. 7A-659(f) (see now this section) to request information about and be consulted concerning the adoption selection process. This includes confidential adoption information regarding adoptive parents. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, 1988 N.C. App. LEXIS 242 (1988).

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, 1988 N.C. App. LEXIS 242 (1988).

Guardian ad litem’s responsibility to child is intact for the 10-day period after he receives written notice of filing of adoption petition for the purpose of raising any issue of abuse of discretion. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, 1988 N.C. App. LEXIS 242 (1988).

Guardian ad litem who first made a motion to the court for information five days before receiving written notice that an adoption petition had been filed still had a responsibility and a duty, pursuant to former G.S. 7A-659(f) (see now this section), at the time he received notice of the adoption petition to raise any issue of abuse of discretion. In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, 1988 N.C. App. LEXIS 242 (1988).

District Court Jurisdiction 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, 1988 N.C. App. LEXIS 242 (1988).

Filing of Motion Alleging Abuse in Adoption Process. —

In view of G.S. 48-12, which provides that adoption proceeding shall be before the clerk of superior court, any motion alleging abuse of discretion in the adoption process should be filed with the clerk of superior court within the 10-day period provided for in former G.S. 7A-659(f) (see now this section). In re N.C.L., 89 N.C. App. 79, 365 S.E.2d 213, 1988 N.C. App. LEXIS 242 (1988).

CASE NOTES

Editor’s Note. —

Some of the following case was decided prior to the enactment of this Chapter.

Jurisdiction over Adoption Proceedings. —

Chapter 7A specifically directs the district court to conduct periodic reviews of the juvenile’s case before an adoption petition is filed. However, jurisdiction over adoption proceedings is vested solely in superior court. Thus, the district court has no jurisdiction to act once a petition for adoption is filed, and its jurisdiction is in abeyance once the petition is filed. Only when an adoption petition is withdrawn or dismissed does the district court recommence its supervision. In re James S., 86 N.C. App. 364, 357 S.E.2d 430, 1987 N.C. App. LEXIS 2700 (1987).

Responsibility of Guardian ad Litem in Adoption Process. —

Under G.S. 48-16(a), the legislature clearly vested the Department of Social Services with the duty and responsibility to make investigations regarding adoptions. Thus, absent any responsibilities or duties to perform, the guardian ad litem is superfluous to an adoption proceeding. In re James S., 86 N.C. App. 364, 357 S.E.2d 430, 1987 N.C. App. LEXIS 2700 (1987).

CASE NOTES

Applicability. —

Statutory requirements apply to a voluntary placement agreement, but not a temporary parental safety agreement. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50, 2019 N.C. App. LEXIS 390 (2019).

Remand for New Hearing And Entry of Findings of Fact. —

Reversal and remand of a trial court’s disposition orders and civil custody order was appropriate, and the trial court was instructed to hold a new hearing and enter orders with findings of facts supported by competent evidence that supported its conclusions of law, because, based upon the evidence, there was no factual support for a conclusion that a mother was unfit to have custody of the mother’s children. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50, 2019 N.C. App. LEXIS 390 (2019).

CASE NOTES

Retention of Jurisdiction. —

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 N.C. App. LEXIS 1167 (2018).

Subject Matter Jurisdiction. —

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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

Proper Entry of Order. —

There was no requirement that the trial court enter two different orders in a neglect action; the trial court could enter one order for placement in both the juvenile file and the civil file as long as the order was sufficient to support termination of juvenile court jurisdiction and modification of custody. In re A.S., 182 N.C. App. 139, 641 S.E.2d 400, 2007 N.C. App. LEXIS 484 (2007).

Trial court’s order stating that it resolved any pending claim for custody complied with G.S. 7B-911 because it contained findings of fact which were relevant to the issue of the child’s best interest and welfare, and contained findings which established that the mother failed to seek medical attention for the child, yet the father took appropriate action. In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519, 2007 N.C. App. LEXIS 1812 (2007), aff'd in part, modified, 362 N.C. 446, 665 S.E.2d 54, 2008 N.C. LEXIS 686 (2008).

Trial court, in a custody case involving the son where reunification with a parent was the original goal and the county social services agency had obtained legal custody of him while awaiting a permanent disposition, did not enter a proper civil child-custody order pursuant to G.S. 7B-911. It made no findings of fact regarding its decision to transfer the son’s juvenile case pursuant to “Chapter 50,” G.S. 50-13.1, and to terminate its jurisdiction. In re J.B., 197 N.C. App. 497, 677 S.E.2d 532, 2009 N.C. App. LEXIS 765 (2009).

Trial court’s order contained findings of fact relevant to the issue of a child’s interest and welfare because the trial court specifically made findings establishing that the mother tested positive for drugs, that she showed up late for visits, that her behavior was erratic during visits, that the father tested negative for drugs, that his residence was appropriate for the child, and that it was in the best interest of the child to award custody to father. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172, 2015 N.C. App. LEXIS 43 (2015).

Modification of Custody Order. —

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, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750, 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

Termination of Parental Rights. —

Mother’s parental rights to three children were properly terminated under G.S. 7B-1111(a)(2) because the children had been in an out-of home-placement since March 2008 neglect proceedings, and the court’s order converting the neglect case into a civil custody case, pursuant to G.S. 7B-911, qualified as a “court order” under G.S. 7B-1111; the children were placed with the paternal grandparents after the neglect proceedings and, after a permanency planning review in September 2008, the grandparents were awarded legal and physical custody. In re L.C.R., 226 N.C. App. 249, 739 S.E.2d 596, 2013 N.C. App. LEXIS 342 (2013).

Trial Court Failed to Make Required Findings. —

Because the trial court did not make the required findings that there was no need for continued State intervention on behalf of the child, it erred in terminating its jurisdiction over the child by transferring the issue of the child’s custody to a North Carolina General Statutes Chapter 50 case; the disposition order contained no findings from which the court of appeals could infer that the trial court considered the extent to which continued State intervention was necessary. In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172, 2015 N.C. App. LEXIS 43 (2015).

Order granting the father custody of a child who was the subject of a juvenile petition was reversed because (1) the court intended to terminate juvenile court jurisdiction but six months had not passed since the court held the child’s permanent plan was placing the child with the father, and (2) a finding that this period had passed was required since the child did not live with the father when the juvenile petition was filed. In re J.K., 2017 N.C. App. LEXIS 224 (N.C. Ct. App. Apr. 4, 2017).

Trial court erred in terminating the juvenile proceeding and initiating a civil action because it made no findings satisfying either subsection (2)(a) or (2)(b), and the findings it did make did not allow the court of appeals to infer that those statutory provisions were met. In re J.D.M.-J., 260 N.C. App. 56, 817 S.E.2d 755, 2018 N.C. App. LEXIS 604 (2018).

Reversal and remand of a trial court’s disposition orders and civil custody order was appropriate, and the trial court was instructed to hold a new hearing and enter orders with findings of facts supported by competent evidence that supported its conclusions of law, because, based upon the evidence, there was no factual support for a conclusion that a mother was unfit to have custody of the mother’s children. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50, 2019 N.C. App. LEXIS 390 (2019).

Because the juvenile was already the subject of a custody order, the trial court was required to enter an order with findings and conclusions that supported modification of that order, yet no findings or conclusions were made, plus the trial court failed to find that there was not a need for continued State intervention, and remand was required. In re S.M.L., 272 N.C. App. 499, 846 S.E.2d 790, 2020 N.C. App. LEXIS 541 (2020).

Appellate Court Lacked Jurisdiction. —

Appellate court lacked jurisdiction to hear a mother’s claim of an alleged violation of G.S. 7B-911(c) as the mother failed to appeal a civil custody order, and G.S. 7B-911(c) applied to civil custody orders, but not to review orders; without proper notice of appeal, the appellate court did not acquire jurisdiction, and neither the court nor the parties could waive the jurisdictional requirements even for good cause shown under N.C. R. App. P. 2. In re H.S.F., 182 N.C. App. 739, 645 S.E.2d 383, 2007 N.C. App. LEXIS 748 (2007).

Appellate court lacked jurisdiction because the lower court failed to comply with G.S. 7B-911 in terminating the jurisdiction of the juvenile court in a purported transfer of a case from the jurisdiction of the juvenile court, as an abuse/neglect/dependency proceeding under G.S. ch. 7B, to a civil action between private parties under G.S. ch. 50; upon remand, the case remained within the jurisdiction of the juvenile court unless and until it terminated its jurisdiction in compliance with G.S. 7B-911 and entered a civil custody order in compliance with G.S. 50-13.1 et seq. Sherrick v. Sherrick, 209 N.C. App. 166, 704 S.E.2d 314, 2011 N.C. App. LEXIS 53 (2011).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Applicability. —

Mother’s argument that a permanency plan failed to comply with G.S. 7B-1000(a) was rejected where the permanency planning order stated that it was entered pursuant to G.S. 7B-906.1, and the mother failed to articulate any legal basis for applying G.S. 7B-1000(a) to an order entered pursuant to G.S. 7B-906.1. In re J.S., 250 N.C. App. 370, 792 S.E.2d 861, 2016 N.C. App. LEXIS 1159 (2016).

Finding of Changed Conditions Required. —

It is fundamental that before an order may be entered modifying a custody decree, there must be a finding of fact of changed conditions. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, 1985 N.C. App. LEXIS 4049 (1985).

A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, 1985 N.C. App. LEXIS 4049 (1985).

For case in which the court found no change in the needs of juvenile requiring that her custody be returned to her parents, see In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23, 1985 N.C. App. LEXIS 3613 (1985).

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 N.C. App. LEXIS 2693 (1986).

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 N.C. App. LEXIS 2693 (1986).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Former Provisions. —

N.C. R. App. P. 3(b) provides that the time to take appeals in juvenile matters is governed by G.S. 7A-666, and appeals in termination of parental rights cases are governed by G.S. 7A-289.34, but both referenced sections have been repealed and replaced by other provisions; appeals in child custody cases are now governed by G.S. 7B-1001, and appeals in termination of parental rights cases are governed by G.S. 7B-1113. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337, 2003 N.C. App. LEXIS 324 (2003).

Guardian Ad Litem Not “Proper Party.” —

Guardian ad litem for parents in a termination of parental rights action was not designated as a “proper party” who could give notice of appeal pursuant to G.S. 7B-1001. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240, 2007 N.C. App. LEXIS 2456 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751, 2008 N.C. LEXIS 807 (2008).

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 N.C. App. LEXIS 1001 (2014).

Mother Had Standing to Bring Appeal. —

Although a mother was not served with the juvenile petition, as the child’s parent, she was a proper party to appeal the adjudication and disposition order. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

Mother’s failure to appeal an initial dispositional order did not deprive the mother of standing to appeal a subsequent dispositional order placing the mother’s child in foster care because the mother had no occasion to appeal the initial order which awarded custody of the child to the mother. In re E.G.M., 230 N.C. App. 196, 750 S.E.2d 857, 2013 N.C. App. LEXIS 1157 (2013).

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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (2019).

Mother Did Not Have Standing to Bring Appeal. —

Mother had no standing to appeal orders entered concerning children as to whom the mother’s parental rights were previously terminated because the mother did not come within any category of persons afforded a statutory right to appeal from a juvenile matter pursuant to G.S. 7B-1001 and G.S. 7B-1002, as (1) the mother’s parental rights had been terminated, (2) the mother was not appointed as the children’s guardian upon the death of the children’s adoptive parent, and (3) nothing showed the mother had custody of the children following the adoptive parent’s death. In re T.H., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Mother lacked standing to appeal the trial court’s dependency and placement orders because she did not come within any category of persons afforded a statutory right to appeal from a juvenile matter. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Immediate Direct Appeal. —

Former G.S. 7A-666 (see now this section) authorizes an immediate direct appeal to the Court of Appeals of a juvenile transfer order. State v. T.D.R., 347 N.C. 489, 495 S.E.2d 700, 1998 N.C. LEXIS 5 (1998).

Mother was not entitled to relief from the parental rights termination where the termination petitions were filed more than three months after the limitations period under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), which was directory rather than mandatory, had run; the mother failed to show that she was prejudiced by the period of delay, as the mother did not take advantage of visitation and did not have contact with the petitioning agency, and the mother, pursuant to G.S. 7B-1001, could have appealed from either the review hearing ceasing efforts to reunify the family or from the permanency planning order that changed the permanency plan to termination of parental rights. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704, 2005 N.C. App. LEXIS 1316 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760, 2006 N.C. LEXIS 37 (2006).

Trial court, by making a minor child’s maternal aunt and uncle the guardians for the child, modified the child’s custody from the county department of social services to the aunt and uncle, which allowed the child’s father to appeal the permanency planning order as to child pursuant to G.S. 7B-1001(a)(4). As a result, the appellate court had jurisdiction to consider the father’s challenge to the permanency planning order on the merits. In re J.V., 198 N.C. App. 108, 679 S.E.2d 843, 2009 N.C. App. LEXIS 1137 (2009).

Trial court’s order denying a guardian ad litem’s motion for relief was appealable because the order determined that a county department of social service’s voluntary dismissal of juvenile petitions was effective, thus depriving the trial court of jurisdiction, and preventing a final judgment on the merits from which appeal might have been taken. In re E.H., 227 N.C. App. 525, 742 S.E.2d 844, 2013 N.C. App. LEXIS 612 (2013).

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., 268 N.C. App. 47, 834 S.E.2d 670, 2019 N.C. App. LEXIS 842 (2019).

Standing to Bring Appeal. —

Appellate court declined to address a parent’s argument that a trial court erred by adjudicating the step-child of the parent’s cousin an abused juvenile because the parent lacked standing to challenge the issue on appeal. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487, 2014 N.C. App. LEXIS 404 (2014).

Time For Appeal. —

G.S. 7B-1001 requires a notice of appeal within 10 days of any order of disposition following an order adjudicating a juvenile as neglected. In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337, 2003 N.C. App. LEXIS 324 (2003).

Any challenge to the neglect adjudication was not properly before the appellate court because the mother did not appeal within 10 days pursuant to G.S. 7B-1001. In re C.L.C., 171 N.C. App. 438, 615 S.E.2d 704, 2005 N.C. App. LEXIS 1316 (2005), aff'd, 360 N.C. 475, 628 S.E.2d 760, 2006 N.C. LEXIS 37 (2006).

Father’s appeal of a trial court’s order that a county agency pursue the adoption of the father’s child and terminate the father’s parental rights was dismissed because the order on appeal was not a final order for purposes of appeal as none of the provisions of G.S. 7B-1001 applied. In re A.R.G., 178 N.C. App. 205, 631 S.E.2d 146, 2006 N.C. App. LEXIS 1335 (2006), aff'd in part, modified, 361 N.C. 392, 646 S.E.2d 349, 2007 N.C. LEXIS 597 (2007).

Although a mother’s oral notice of appeal in a termination case was timely under N.C. R. App. P. 3, and thus the trial court used invalid grounds for its order dismissing the mother’s appeal, because valid grounds existed on which the trial court’s order could have been based, N.C. R. App. P. 25(a) authorized the trial court’s actions, and the error was harmless. In re J.L., 184 N.C. App. 750, 646 S.E.2d 861, 2007 N.C. App. LEXIS 1598 (2007).

Mother properly and timely appealed from an order terminating her parental rights, G.S. 7B-1001(a)(5)(a)(2) and N.C. R. App. P. 3.1, because the mother’s notice of appeal correctly identified the orders from which the appeal was taken, correctly identified the court to which the appeal was taken, was properly signed by both the mother and counsel, was properly served upon all other parties, and was filed within the time constraints contained in G.S. 7B-1001(b). In re A.P.W., 225 N.C. App. 534, 741 S.E.2d 388, 2013 N.C. App. LEXIS 172 (2013).

Respondent claimed that the order entered on her assistive guardian ad litem’s motion to withdraw was fatally deficient because it does not make adequate findings or conclusions, but respondent had no right to appeal this order, and even if she did, it would have been lost due to her failure to provide timely written notice of her intent to exercise that right. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

Mother’s appeal of an order ceasing reunification efforts was untimely and had to be dismissed because her notice of appeal was unquestionably more than the 210 days after the entry of that order. In re A.R., 238 N.C. App. 302, 767 S.E.2d 427, 2014 N.C. App. LEXIS 1401 (2014).

Trial court filed and entered the termination order on July 23, 2015, petitioner served respondent a copy of the order on July 28, 2015, and thus respondent was served a copy of the termination order within the three-day period, since the intervening Saturday and Sunday was excluded from the three-day period; the last day on which respondent could have filed a timely notice of appeal was August 24, 2015, and because respondent did not file a notice of appeal until August 25, 2015, the notice of appeal was untimely and the appeal was treated as a petition for writ of certiorari. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341, 2016 N.C. App. LEXIS 503 (2016).

Because there was no final order terminating parental rights from which a parent could appeal until the trial court entered its disposition order, the parent timely filed a notice of appeal within thirty days after entry and service of the disposition order-stating the parent’s desire to appeal both the adjudication order and the disposition order. Therefore, the parent’s appeal of both the adjudication order and the disposition order was properly before the appellate court. In re A.B.C., 374 N.C. 752, 844 S.E.2d 902, 2020 N.C. LEXIS 620 (2020).

Mother’s appeal was premature and untimely because when the mother filed notice of appeal from the trial court’s review order, the 65-day period had not yet elapsed; moreover, there was no indication in the appellate record that a petition to terminate the mother’s parental rights had been filed. In re A.L., 2021-NCCOA-452, 279 N.C. App. 168, 2021- NCCOA-452, 2021 N.C. App. LEXIS 466, sub. op., 865 S.E.2d 369, 2021- NCCOA-626, 2021 N.C. App. LEXIS 648 (2021).

Order Transferring Jurisdiction Final. —

Court of appeals had jurisdiction to consider a mother’s appeal of an order allowing a great aunt’s motion to stay proceedings and transfer jurisdiction because the order on appeal was final; the order did not leave the case open for further action by the trial court in order to settle and determine the entire controversy. In re C.M.B., 826 S.E.2d 810, 2019 N.C. App. LEXIS 307 (Ct. App. 2019).

Finding of Probable Cause Not Final Order. —

A finding of probable cause in a juvenile proceeding was not an appealable “final order” under this section, and evidentiary rulings of the trial court in conducting the probable cause hearing were not properly before the Court of Appeals for review. In re Ford, 49 N.C. App. 680, 272 S.E.2d 157, 1980 N.C. App. LEXIS 3425 (1980).

Temporary Dispositional Finding of Neglect Not Final Order. —

Mother’s appeal from the adjudication and temporary dispositional order finding her children to be neglected was not an appeal from a final order as required by G.S. 7B-1001, and was premature; accordingly, the appellate court denied certiorari as the final disposition would remain in effect since it was not before the court on appeal. In re Laney, 156 N.C. App. 639, 577 S.E.2d 377, 2003 N.C. App. LEXIS 191 (2003).

Father was not entitled to appeal a temporary dispositional order of neglect under G.S. 7B-1001(a) as it was not final. In re C.M., 183 N.C. App. 207, 644 S.E.2d 588, 2007 N.C. App. LEXIS 1043 (2007).

Initial permanency planning order is not a final order under G.S. 7B-1001, and is not subject to an appeal. In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888, 2005 N.C. App. LEXIS 885 (2005).

Initial permanency planning order directing adoption for a mother’s minor son was not a final order under G.S. 7B-1001 and, therefore, her appeal of that order was dismissed; the initial permanency planning order directing adoption did not change the mother’s custodial rights or interest in the proceeding and was not immediately appealable. In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888, 2005 N.C. App. LEXIS 885 (2005).

Permanency planning order which continued a child’s custody with the department and stated that the permanent plan would be adoption did not change the status quo since custody was given to the department by a previous order, thus the order appealed from did not alter the child’s disposition; this was not an order from which the mother was allowed to appeal. In re C.L.S., 175 N.C. App. 240, 623 S.E.2d 61, 2005 N.C. App. LEXIS 2750 (2005).

Change in Permanency Plan Order Was Dispositional and Hence, Appealable. —

Trial court’s order, which changed the mother’s permanency plan with her minor children from one of reunification to one of termination of parental rights, was a dispositional order that was appealable as a final order. In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134, 2003 N.C. App. LEXIS 1185 (2003), limited, In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888, 2005 N.C. App. LEXIS 885 (2005).

Order Not Appealable As Reunification Not Eliminated as Possibility. —

Statute clearly contemplates the use of multiple, concurrent plans including reunification and adoption, and during concurrent planning, the Department of Social Services is required to continue making reasonable reunification efforts until reunification is eliminated as a permanent plan; under the framework of concurrent planning, the prior order here did not explicitly or implicitly eliminate reunification as a permanent plan, and thus the order failed to meet the requirements for appeal. In re A.A.S., 258 N.C. App. 422, 812 S.E.2d 875, 2018 N.C. App. LEXIS 260 (2018).

An adjudication of delinquency is not a final order. No appeal may be taken from such order unless no disposition is made within 60 days of the adjudication of delinquency. In re Taylor, 57 N.C. App. 213, 290 S.E.2d 797, 1982 N.C. App. LEXIS 2618 (1982).

An Adjudication of Neglect is Not a Final Order. —

Mother’s appeal of the trial court’s order adjudicating her child neglected was dismissed because she failed to demonstrate that she was entitled to immediate appeal of the trial court’s order where the trial court did not enter a final disposition order; it only entered an adjudication order, which included a temporary disposition to the department of social services, pending the initial disposition hearing and associated order, which temporary custody award was analogous to nonsecure custody that was specifically exempted from appeal. In re P.S., 242 N.C. App. 430, 775 S.E.2d 370, 2015 N.C. App. LEXIS 669, cert. denied, 368 N.C. 431, 778 S.E.2d 277, 2015 N.C. LEXIS 1163 (2015).

Oral Notice of Appeal from Final Order. —

When the second sentence of former G.S. 7A-666 permitting oral notice of appeal at the hearing, was read in conjunction with the first sentence providing for appellate review only upon any “final order,” it appeared that oral notice of appeal given at the time of the hearing must be from a final order. In re Hawkins, 120 N.C. App. 585, 463 S.E.2d 268, 1995 N.C. App. LEXIS 906 (1995).

Trial court lacked jurisdiction under G.S. 7B-1003 to enter an order terminating a father’s parental rights while the father’s appeal from the court’s permanency planning review order was pending before the Court of Appeals of North Carolina. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22, 2004 N.C. App. LEXIS 266 (2004), overruled, In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Temporary Caregiver. —

Paternal step-grandfather has no standing to appeal under G.S. 7B-1002; the fact that paternal step-grandfather was listed on the county’s petition for neglect did not make him a party to the action because he was not deemed a custodian in the petitions and was simply listed because he fulfilled the role of a caregiver with regard to the two minor children at issue, with such temporary care not warranting a conclusion that he stood in loco parentis to the children. In re A.P., 165 N.C. App. 841, 600 S.E.2d 9, 2004 N.C. App. LEXIS 1527 (2004).

Reunification. —

Court failed to make required findings of fact because, while the record contained little evidence presented by the parties on the issue of the mother’s availability, the written report to the trial court for the permanency planning hearing included information about the mother’s attendance at court dates and scheduled visitations, as well as her failure to attend child and family team meetings; the information contained in the reports did not satisfy the trial court’s statutory obligation. In re L.R.L.B., 377 N.C. 311, 857 S.E.2d 105, 2021- NCSC-49, 2021 N.C. LEXIS 403 (2021).

Appeal of Nonsecure Custody Order. —

As the trial court’s denial of the motion of the county department of social services (DSS) for review of the foster care board rate provisions of a nonsecure custody order was not a “final order” as defined in G.S. 7B-1001, and as nonsecure custody orders were excluded from the list of appealable juvenile orders set out in G.S. 7B-1001, DSS had no right of appeal from the trial court’s ruling. In re A.T., 191 N.C. App. 372, 662 S.E.2d 917, 2008 N.C. App. LEXIS 1316 (2008).

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 N.C. App. LEXIS 1316 (2008).

Appeal of Order Changing Legal Custody of Child. —

In a case in which the father appealed from the trial court’s permanency planning order changing legal custody of his child, the trial court improperly entered a permanency planning order granting custody of the child to the child’s maternal grandparents as the trial court failed to adopt a permanent plan for the child as mandated by statute; thus, the appellate court reversed the trial court’s permanency planning order awarding custody of the child to the maternal grandparents and waiving further review hearings. In re D.A., 262 N.C. App. 559, 822 S.E.2d 664, 2018 N.C. App. LEXIS 1169 (2018).

Review Order not Final. —

In dependency proceedings, a trial court’s order finding that an agency should pursue termination of a father’s parental rights and adoption of the father’s child by the child’s foster parents, based on a finding that the child’s placement with the father was “unlikely” and that it was in the child’s best interests for the agency to pursue termination, was not a final order subject to appeal under G.S. 7B-1001(4). In re A.R.G., 361 N.C. 392, 646 S.E.2d 349, 2007 N.C. LEXIS 597 (2007).

Appeals Dismissed But Petitions for Certiorari Allowed. —

Court of appeals had to dismiss an appeal by a mother and father of an order terminating their parental rights because they did not sign the notices of appeal, and their amended notices of appeal, which bore their signatures, were filed outside the 30-day deadline imposed by G.S. 7B-1001(b); however, because the timely notices of appeal, together with the amended notices of appeal, provided record evidence that the mother and father desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal, the court of appeals exercised its discretion pursuant to N.C. R. App. P. 21(a)(1) and allowed the petitions for writ of certiorari the mother and father filed to permit consideration of their appeals on the merits so as to avoid penalizing the mother and father for their attorneys’ errors. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282, 2008 N.C. App. LEXIS 2234 (2008).

Although a parent’s notice of appeal did not reference the civil custody order entered, the appellate court in its discretion granted the parent’s petition for writ of certiorari and reviewed the civil custody order along with the disposition orders. In re B.C.T., 265 N.C. App. 176, 828 S.E.2d 50, 2019 N.C. App. LEXIS 390 (2019).

Substantial Compliance. —

Decision by a father’s trial counsel to attach the father’s letter to the notice of appeal resulted in substantial compliance with the signature requirement, particularly given that neither the county department of social services nor the guardian ad litem sought to have the father’s appeal dismissed, because the letter indicated that the father wished to note an appeal from the trial court’s termination order. In re J.L.F., 2021-NCSC-97, 378 N.C. 445, 861 S.E.2d 744, 2021- NCSC-97, 2021 N.C. LEXIS 855 (2021).

Decision by a father’s trial counsel to attach the father’s letter to the notice of appeal resulted in substantial compliance with the signature requirement, particularly given that neither the county department of social services nor the guardian ad litem sought to have the father’s appeal dismissed, because the letter indicated that the father wished to note an appeal from the trial court’s termination order. In re J.L.F., 2021-NCSC-97, 378 N.C. 445, 861 S.E.2d 744, 2021- NCSC-97, 2021 N.C. LEXIS 855 (2021).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Guardian Ad Litem Not “Proper Party.” —

Guardian ad litem for parents in a termination of parental rights action was not designated as a “proper party” who could give notice of appeal pursuant to G.S. 7B-1001. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240, 2007 N.C. App. LEXIS 2456 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751, 2008 N.C. LEXIS 807 (2008).

Mother Had Standing to Bring Appeal. —

Although a mother was not served with the juvenile petition, as the child’s parent, she was a proper party to appeal the adjudication and disposition order. In re E.J., 225 N.C. App. 333, 738 S.E.2d 204, 2013 N.C. App. LEXIS 128 (2013).

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., 264 N.C. App. 408, 826 S.E.2d 258, 2019 N.C. App. LEXIS 226 (2019).

Mother Did Not Have Standing to Bring Appeal. —

Mother had no standing to appeal orders entered concerning children as to whom the mother’s parental rights were previously terminated because the mother did not come within any category of persons afforded a statutory right to appeal from a juvenile matter pursuant to G.S. 7B-1001 and G.S. 7B-1002, as (1) the mother’s parental rights had been terminated, (2) the mother was not appointed as the children’s guardian upon the death of the children’s adoptive parent, and (3) nothing showed the mother had custody of the children following the adoptive parent’s death. In re T.H., 2013 N.C. App. LEXIS 1158 (N.C. Ct. App. Nov. 5, 2013), op. withdrawn, 2014 N.C. App. LEXIS 113 (N.C. Ct. App. Jan. 3, 2014), sub. op., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

Standing to Bring Appeal. —

Appellate court declined to address a parent’s argument that a trial court erred by adjudicating the step-child of the parent’s cousin an abused juvenile because the parent lacked standing to challenge the issue on appeal. In re J.C.B., 233 N.C. App. 641, 757 S.E.2d 487, 2014 N.C. App. LEXIS 404 (2014).

Mother lacked standing to appeal the trial court’s dependency and placement orders because she did not come within any category of persons afforded a statutory right to appeal from a juvenile matter. In re T.H., 232 N.C. App. 16, 753 S.E.2d 207, 2014 N.C. App. LEXIS 59 (2014).

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 N.C. App. LEXIS 440 (2016).

Temporary Caregiver. —

Paternal step-grandfather has no standing to appeal under G.S. 7B-1002; the fact that paternal step-grandfather was listed on the county’s petition for neglect did not make him a party to the action because he was not deemed a custodian in the petitions and was simply listed because he fulfilled the role of a caregiver with regard to the two minor children at issue, with such temporary care not warranting a conclusion that he stood in loco parentis to the children. In re A.P., 165 N.C. App. 841, 600 S.E.2d 9, 2004 N.C. App. LEXIS 1527 (2004).

County May Not Appeal. —

It is manifest that this statute (former G.S. 7A-667) does not empower a county to take an appeal in a juvenile proceeding. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861, 1981 N.C. LEXIS 1026 (1981).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Constitutionality of Former G.S. 7A-289. —

Former G.S. 7A-289, permitting the district court to enter a temporary custody order affecting a juvenile who is appealing a commitment order of the court, was not unconstitutional on the ground that the statute deprived the juvenile of the right to bail. In re Martin, 9 N.C. App. 576, 176 S.E.2d 849, 1970 N.C. App. LEXIS 1409 (1970) (decided under former G.S. 7A-289).

Construction. —

Because a county’s department of social services (DSS) chose to file a petition to terminate parental rights, there were two actions relating to the child: the neglect proceeding and the termination of parental rights (TPR) proceeding. DSS’s claim that the trial court was free to act in the neglect proceeding while the TPR order was on appeal did not comport with the legislature’s intent in enacting G.S. 7B-1003, as revealed by the long-standing interpretation given to G.S. 7B-1003 and its predecessor versions, as well as the recent amendments. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789, 2009 N.C. App. LEXIS 376 (2009).

Section Controls over G.S. 1-294. —

Although G.S. 1-294 states the general rule regarding jurisdiction of the trial court pending appeal, it is not controlling where there is a specific statute, such as former G.S. 7A-669 (see now this section), addressing the matter in question. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, 1982 N.C. App. LEXIS 2687 (1982).

When considering whether a trial court had jurisdiction to grant a motion to terminate parental rights that was filed during the pendency of an appeal from the trial court’s dispositional order, G.S. 7B-1003 controlled over the general rule in G.S. 1-294 because G.S. 7B-1003 was a specific statute that addressed the trial court’s jurisdiction during the pendency of an appeal, under the Juvenile Code. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469, 2012 N.C. LEXIS 22 (2012).

Section Permits Court to Circumvent Recalcitrant Parties. —

Without authority of the district court to provide for the treatment of a neglected child pending appeal, a recalcitrant party could frustrate the efforts of the court to provide for the child’s best interests by simply entering notice of appeal. In re Huber, 57 N.C. App. 453, 291 S.E.2d 916, 1982 N.C. App. LEXIS 2687 (1982).

Trial Court’s Authority Pending Appeal. —

Termination of the mother’s parental rights was proper based on willful abandonment of her child as the mother made no effort to contact the child and paid nothing toward his support during the six months immediately preceding the filing of the grandparents’ petition to terminate because, while her parental rights had been previously terminated, there was no evidence that the mother sought to stay the order while her appeal was pending, or otherwise requested visitation with the child from the trial court or the grandparents; she was not prohibited from contacting and visiting the child; and she demonstrated almost no interest in the child since losing custody of him. In re D.E.M., 254 N.C. App. 401, 802 S.E.2d 766, 2017 N.C. App. LEXIS 557 (2017), aff'd, 370 N.C. 463, 809 S.E.2d 567, 2018 N.C. LEXIS 55 (2018).

Father properly perfected his appeal, and with knowledge of that appeal, the trial court proceeded with a hearing for termination of the father’s parental rights; thus, the trial court clearly acted beyond the limitations statutorily placed on its subject matter jurisdiction; the trial court conducted the hearing on the motion to terminate while the disposition of the father’s appeal from the remand orders was pending. In re J.M., 377 N.C. 298, 857 S.E.2d 119, 2021- NCSC-48, 2021 N.C. LEXIS 399 (2021).

Emergency Commitment Held Improper. —

Written order which merely stated that it was an “emergency commitment,” without stating any supporting reasons or findings of fact, was not proper. In re Bullabough, 89 N.C. App. 171, 365 S.E.2d 642, 1988 N.C. App. LEXIS 279 (1988) (holding, however, that juvenile had not shown prejudice from such order) .

Need to Protect Children Pending Appeals. —

As to a trial court’s authority to enter orders pending an appeal, the rule adopted by the General Assembly for abuse, neglect, and dependency proceedings (G.S. 7B-1003(b)(2)) is that the trial court may only enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile; if the appeal arises out of a termination of parental rights petition, then under G.S. 7B-1003(c) the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. The language in both subsections limits the trial court’s authority to the traditionally-recognized need to protect children pending appeals. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789, 2009 N.C. App. LEXIS 376 (2009).

Plain language of the statute requires a holding that G.S. 7B-1003(c) provides that if a termination of parental rights (TPR) order resulting from a petition has been appealed, then the trial court has jurisdiction — in both the TPR action and the underlying abuse, neglect, and dependency action — only to enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789, 2009 N.C. App. LEXIS 376 (2009).

Trial Court’s Authority Pending Appeal. —

In the context of the authority of a trial court pending an appeal, if a county’s department of social services (DSS) files a motion in a cause to terminate parental rights, then G.S. 7B-1003(b) applies, but if DSS files a petition, initiating a new action, then G.S. 7B-1003(c) applies. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789, 2009 N.C. App. LEXIS 376 (2009).

Trial court lacked jurisdiction under G.S. 7B-1003 to enter an order terminating a father’s parental rights while the father’s appeal from the court’s permanency planning review order was pending before the Court of Appeals of North Carolina. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22, 2004 N.C. App. LEXIS 266 (2004), overruled, In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Trial Court Improperly Failed to Comply with Appellate Mandate. —

Termination order was improper under circumstances in which the trial court proceeded with the termination hearing before complying with the appellate mandate vacating permanency planning order, which changed the permanent plan from reunification to termination; the legislature did not intend for its amendment of G.S. 7B-1003 to divest trial courts of jurisdiction over termination petitions during appeals of dispositional orders, but to nonetheless allow trial courts to avoid the effect of those appeals once they were decided. Garrison v. R.V.P., 183 N.C. App. 423, 645 S.E.2d 398, 2007 N.C. App. LEXIS 1154 (2007).

This section did not deprive the trial court of jurisdiction to terminate the mother’s parental rights during the pendency of the custody review order appeal; G.S. 7B-1003 applied only to dependency proceedings, not to termination proceedings, and allowing parents to delay termination proceedings by appealing custody review orders would have thwarted G.S. 7B-100(5), which sought to place children in safe, permanent houses within a reasonable amount of time. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

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 because (1) the statute only barred the trial court from exercising jurisdiction or holding hearings before the appellate court’s mandate issued, (2) the mandate’s issuance returned the power to exercise subject matter jurisdiction to the trial court, and (3) the trial court did not exercise jurisdiction until after the mandate issued, as the trial court did not hear or decide the motion until after that issuance. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469, 2012 N.C. LEXIS 22 (2012).

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, which was unnecessary to protect parental rights, but which interfered with addressing a child’s needs, and was consistent with the obligation of the Department of Social Services, under G.S. 7B-907(e) (repealed, see now G.S. 7B-906.1), to seek termination of parental rights within 60 days of a permanency planning hearing; allowing the timing of the filing of a termination motion to decide if the trial court had jurisdiction elevated form over substance. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469, 2012 N.C. LEXIS 22 (2012).

By the statute’s own plain language, G.S. 7B-1003 did not state that a trial court lacked jurisdiction over termination of parental rights proceedings during pendency of an appeal, but instead specified that a trial court may not “exercise” the jurisdiction the court has until the appeal is resolved and the mandate has issued. In re M.I.W., 365 N.C. 374, 722 S.E.2d 469, 2012 N.C. LEXIS 22 (2012).

Appeal of Permanency Planning Order Not Mooted. —

After a mother filed a notice of appeal of a permanency planning order under G.S. 7B-1003(b), the trial court no longer had jurisdiction to rule on the petitions to terminate her parental rights under G.S. 7B-1101; consequently, the order terminating the mother’s parental rights was void ab initio, and did not render moot the appeal of the permanency planning order. In re Z.J.T.B., 183 N.C. App. 380, 645 S.E.2d 206, 2007 N.C. App. LEXIS 1161 (2007).

Lack of Timeliness. —

Mother was not prejudiced by a trial court’s delay in entering its order in a child neglect and pendency proceeding because neither the pendency of the trial court’s order, nor an appeal, deprived the mother of reunification with her children; if the mother had complied with the trial court’s order, she could have requested a review hearing and sought custody of her children. In re T.S., 178 N.C. App. 110, 631 S.E.2d 19, 2006 N.C. App. LEXIS 1299 (2006), aff'd, 361 N.C. 231, 641 S.E.2d 302, 2007 N.C. LEXIS 213 (2007).

Exercise of Jurisdiction Improper. —

Trial court lacked jurisdiction to amend summons in an abuse, neglect and dependency proceeding. Mother had appealed termination of parental rights, and under G.S. 7B-1003(c), trial court had no authority—even in an underlying action—to enter any orders other than ones affecting the custody and/or placement of the juvenile. In re K.L., 196 N.C. App. 272, 674 S.E.2d 789, 2009 N.C. App. LEXIS 376 (2009).

CASE NOTES

Editor’s Note. —

Many of the following cases were decided prior to the enactment of this Chapter.

Jurisdiction. —

Trial court properly terminated a father’s parental rights to his children because, while it was undisputed that he lacked minimum contacts with North Carolina, due process did not require a nonresident parent to have minimum contacts with the State to establish personal jurisdiction for purposes of termination of parental rights proceedings since the protections usually afforded by the minimum contacts requirement were outweighed by the State’s interest in adjudicating the status of children who resided in the state. In re F.S.T.Y., 374 N.C. 532, 843 S.E.2d 160, 2020 N.C. LEXIS 494 (2020).

The exclusive judicial procedure to be used in termination of parental rights cases is prescribed by the legislature in former G.S. 7A-289.22 (see now this section). Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917, 1991 N.C. App. LEXIS 1091 (1991).

This Article (see now Chapter 7B, Article 11) exclusively controls the procedure to be followed in termination of parental rights, and the Rules of Civil Procedure (G.S. 1A-1) are inapplicable to such a proceeding. In re Peirce, 53 N.C. App. 373, 281 S.E.2d 198, 1981 N.C. App. LEXIS 2613 (1981).

The provisions of this Article (see now Chapter 7B, Article 11) adequately assure respondents of procedural due process protection. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246, 1984 N.C. LEXIS 1716 (1984).

Rules of Civil Procedure Not Superimposed on Hearings under Article. —

This Article (see now Chapter 7B, Article 11) comprehensively delineates in detail the judicial procedure to be followed in the termination of parental rights. It provides for the basic procedural elements which are to be utilized in these cases. Due to the legislature’s prefatory statement in former G.S. 7A-289.22 (see now this section) with regard to its intent to establish judicial procedures for the termination of parental rights, and due to the specificity of the procedural rules set out in the article, the legislative intent was that this Article (see now Chapter 7B, Article 11) exclusively control the procedure to be followed in the termination of parental rights. It was not the intent that the requirements of the Rules of Civil Procedure, G.S. 1A-1, be superimposed upon the requirements of this Article. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607, 1982 N.C. App. LEXIS 2763 (1982).

The judicial procedure to be used in termination of parental rights cases is prescribed by the legislature in this Article. The Rules of Civil Procedure, G.S. 1A-1, while they are not to be ignored, are not superimposed upon these hearings. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607, 1982 N.C. App. LEXIS 2763 (1982).

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 N.C. App. LEXIS 831, aff'd, 362 N.C. 674, 669 S.E.2d 320, 2008 N.C. LEXIS 988 (2008).

Effect on Chapter 50A. —

While a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings; the language of subdivision (4) of this section (now G.S. 7B-1100(4)) is that it shall not be “used to circumvent” Chapter 50A, G.S. 50A-1, et seq., not that it shall be “in conformity with” Chapter 50A. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73, 1985 N.C. App. LEXIS 4084 (1985).

Counterclaim for Termination of Parental Rights. —

Given both the statement of legislative intent in G.S. 7B-1100(1) and the specificity of the procedures in G.S. 7B-100 et seq., Article 11 of Chapter 7B provides the exclusive procedures to be used in a termination of parental rights proceeding; a defendant therefore cannot rely on G.S. 1A-1, N.C. R. Civ. P. 13 as the basis for a counterclaim for termination of parental rights. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

G.S. 7B-1100 et seq. does not provide a procedure through which a party may counterclaim for termination of parental rights in response to a complaint for child visitation; rather, Article 11 contemplates that a termination petition should be brought in a separate action. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

Because G.S. 7B-1100 et seq. provided the exclusive procedures for a termination of parental rights proceeding and contemplated that a termination petition be brought in a separate action, the trial court lacked subject matter jurisdiction over a termination of parental rights action brought as a counterclaim to a visitation action; although the trial court had tried to rectify the error by having summonses issued under G.S. 7B-1106(a), the issuance of a summons alone did not vest a trial court with subject matter jurisdiction over an action that was never properly commenced. In re S.D.W. & H.E.W., 187 N.C. App. 416, 653 S.E.2d 429, 2007 N.C. App. LEXIS 2419 (2007).

Final Order. —

In dependency proceedings, a trial court’s order finding that an agency should pursue termination of a father’s parental rights and adoption of the father’s child by the child’s foster parents, based on a finding that the child’s placement with the father was “unlikely” and that it was in the child’s best interests for the agency to pursue termination, was not a final order subject to appeal under G.S. 7B-1001(4). In re A.R.G., 361 N.C. 392, 646 S.E.2d 349, 2007 N.C. LEXIS 597 (2007).

Findings and Conclusions of Court. —

In a proceeding to terminate parental rights pursuant to this Article (see now Chapter 7B, Article 11), the trial judge must find facts based on the evidence and make conclusions of law which resolve the ultimate issue of whether neglect authorizing termination of parental rights is present at that time. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317, 1988 N.C. App. LEXIS 917 (1988).

It was not an abuse of discretion, in a termination of parental rights proceeding, for a trial court to find that the subject child’s adoption by the child’s foster parents better served the child’s best interests than placement of the child with the child’s relatives because the court (1) made findings regarding the relevant provisions of G.S. 7B-1110(a) and G.S. 7B-1100, (2) made extensive findings as to the relative situations of the foster parents and the child’s relatives, and (3) specifically provided the court’s reasons for determining that the child’s best interests would be served by termination of parental rights and subsequent adoption by the child’s foster parents, finding the foster parents had provided the child with a safe, stable, home, and the relatives did not timely present themselves in a reasonable time to provide the child a safe permanent home. In re D.R.F., 204 N.C. App. 138, 693 S.E.2d 235, 2010 N.C. App. LEXIS 826 (2010).

Summary Proceeding Not Allowed. —

Article 24 of Chapter 7A does not provide for a summary proceeding to determine whether the petitioner has proven the existence of one or more of the grounds for termination. Thus, the trial court erred in granting petitioners’ motion for partial summary judgment. Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917, 1991 N.C. App. LEXIS 1091 (1991).

Dual Burden of Proof Where Child Was Native American. —

Where a minor child’s status as a Native American made a termination proceeding under this Article also subject to the provisions of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.), the federal provision did not require that the North Carolina statutory grounds to terminate parental rights be proven beyond a reasonable doubt. Rather, a dual burden of proof was created in which the state provisions and federal provisions had to be satisfied separately; i.e., the state grounds for termination had to be supported by clear and convincing evidence, while the federal law required evidence which justified termination beyond a reasonable doubt. In re Bluebird, 105 N.C. App. 42, 411 S.E.2d 820, 1992 N.C. App. LEXIS 10 (1992).

Permanent Plan of Care. —

The legislature has enunciated a public policy that every child should have a permanent plan of care. Because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care, and because the superior court has jurisdiction over adoptions, that court’s jurisdiction supersedes that of the district court with regard to the custody of a child who is the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

The parental rights of a parent in his child are not to be bartered away at the parent’s whim. Foy v. Foy, 57 N.C. App. 128, 290 S.E.2d 748, 1982 N.C. App. LEXIS 2597 (1982).

When the interests of the child and parents conflict, the best interests of the child control. In re Tate, 67 N.C. App. 89, 312 S.E.2d 535, 1984 N.C. App. LEXIS 3001 (1984).

The legislature expressed its intent that the best interests of the child are controlling by recognizing the necessity for any child to have a permanent plan of care at the earliest possible age, and by providing that action which is in the best interests of the child should be taken in all cases where the interests of the child and those of his or her parents or other persons are in conflict. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136, 1985 N.C. App. LEXIS 4394 (1985).

Right to Object to Immunizations. —

Even though their parental rights had not been formally terminated, parents lost the right to object to their children’s immunization, on religious grounds, where they lost custody of the children due to neglect, including the failure to provide the children with adequate shelter, clothing, food, medical care, and a formal education. In re Stratton, 153 N.C. App. 428, 571 S.E.2d 234, 2002 N.C. App. LEXIS 1183 (2002).

Best Interests of Child May Require That Family Not Be Dissolved. —

The legislature has properly recognized that in certain situations, where the grounds for termination could be legally established, the best interests of the child, considering the intangibles, indicate that the family unit should not be dissolved. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246, 1984 N.C. LEXIS 1716 (1984).

Where there is a reasonable hope that the family unit, within a reasonable period of time, can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246, 1984 N.C. LEXIS 1716 (1984).

Discontinuance of Visitation Rights Following Affirmation of Termination. —

The trial court did not err in entering an order discontinuing respondents’ visitation rights, which order had allowed respondents to visit their children pending appeal of termination proceeding, after the North Carolina Supreme Court affirmed the termination, as the best interests of the children required that a permanent home be found for them, i.e., that steps be taken leading to their adoption. In re Montgomery, 77 N.C. App. 709, 336 S.E.2d 136, 1985 N.C. App. LEXIS 4394 (1985).

Right to Counsel. —

It cannot be said that the Constitution requires the appointment of counsel in every parental termination proceeding; therefore 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, of course, to appellate review. Lassiter v. Department of Social Servs., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640, 1981 U.S. LEXIS 107 (1981).

Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother’s request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22, 2004 N.C. App. LEXIS 266 (2004), overruled, In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Guardian Ad Litem Requirement. —

Although the mother’s parental rights were not terminated for dependency under G.S. 7B-1111(a)(6), the trial court erred in failing to appoint the mother a guardian ad litem under former G.S. 7B-1101; the guardian ad litem requirement was triggered because the mother’s mental health issues, involving, in part, bipolar disorder, were central to the termination. In re L.W., 175 N.C. App. 387, 623 S.E.2d 626, 2006 N.C. App. LEXIS 55 (2006).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

State’s jurisdiction is governed by both the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, and trial court’s jurisdiction in a termination of parental rights case must be compatible with both of these acts. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683, 1999 N.C. App. LEXIS 112 (1999).

Effect on Chapter 50A. —

While a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings; the language of G.S. 7A-289.22(4) is that it shall not be “used to circumvent” Chapter 50A, G.S. 50A-1, et seq., not that it shall be “in conformity with” Chapter 50A. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73, 1985 N.C. App. LEXIS 4084 (1985).

Guardian Ad Litem Requirement. —

Where the allegations contained in a petition or motion to terminate parental rights tend to show that the respondent is incapable of properly caring for his or her child because of mental illness, the trial court is required to appoint a guardian ad litem to represent the respondent at the termination hearing pursuant to this section and G.S. 7B-1111(6). In re Estes, 157 N.C. App. 513, 579 S.E.2d 496, 2003 N.C. App. LEXIS 734 (2003).

When a Division of Social Services pursues termination on the grounds of parental incapability under G.S. 7B-1111(a)(6), the parent has the right to counsel, and to appointed counsel in cases of indigency, unless the parent waives the right. A guardian ad litem shall also be appointed. In re Shepard, 162 N.C. App. 215, 591 S.E.2d 1, 2004 N.C. App. LEXIS 129 (2004).

Although a trial court found, inter alia, that a mother suffered from significant mental health issues, it terminated her parental rights pursuant to G.S. 7B-1111(a)(1) because she had neglected her daughter; however, because the mother’s mental instability was so intertwined with a child’s neglect, the trial court erred in failing to appoint a guardian ad litem for the mother pursuant to G.S. 7B-1101 at a parental rights termination hearing. In re J.D., 164 N.C. App. 176, 605 S.E.2d 643, 2004 N.C. App. LEXIS 744 (2004).

Mother was entitled to a guardian ad litem where the petition to terminate her parental rights alleged that depression and personality and emotional problems rendered her unable to parent her child; because the trial failed to appoint a guardian ad litem for the mother, the termination order was reversed and the case was remanded. In re S.B., 166 N.C. App. 494, 602 S.E.2d 694, 2004 N.C. App. LEXIS 1783 (2004).

Order terminating the parental rights of both parents to four minor children was reversed on appeal, because the trial court erred by failing to appoint a guardian ad litem for the parents, who had significant mental health issues that bore directly on their ability to provide proper care and supervision of their children. In re B.M., 168 N.C. App. 350, 607 S.E.2d 698, 2005 N.C. App. LEXIS 252 (2005).

Trial court did not err by not appointing a guardian ad litem for the mother for a termination of parental rights hearing as it was not alleged, pursuant to G.S. 7B-1111(a)(6), that the mother was incapable of properly caring for her children; additionally, whether the trial court should have appointed a guardian ad litem for the mother in a prior dependency proceeding was not an issue before the court on the appeal of the termination of the mother’s parental rights. In re O.C., 171 N.C. App. 457, 615 S.E.2d 391, 2005 N.C. App. LEXIS 1272 (2005).

Trial court erred when it failed to appoint a guardian ad litem for mother pursuant to prior language of G.S. 7B-1101 after reviewing her psychological evaluation, but still considered her mental illness, even though it never mentioned G.S. 7B-1111(a)(6) as a factor in terminating her parental rights. Accordingly, the mother was entitled to a new termination hearing and the appointment of a guardian ad litem. In re T.W., 173 N.C. App. 153, 617 S.E.2d 702, 2005 N.C. App. LEXIS 1922 (2005).

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 N.C. App. LEXIS 1205 (2005).

While the termination of a mother’s parental rights was based on G.S. 7B-1111(a)(1), (7), the original petition alleged grounds for termination pursuant to G.S. 7B-1111(a)(6), and the trial court considered the mother’s substance abuse and mental illness in making that determination; therefore, G.S. 7B-1101 required appointment of a guardian ad litem for the mother, and the failure of the trial court to do so was error. In re K.R.S., 170 N.C. App. 643, 613 S.E.2d 318, 2005 N.C. App. LEXIS 1092 (2005).

Failure to Appoint Guardian Ad Litem Required Reversal of Termination Order. —

Order terminating a father’s parental rights, which was entered under G.S. 7B-1111(a)(6) on the basis of the father’s 20-year history of substance abuse, was reversed; the trial court failed to appoint a guardian ad litem to represent the father’s interests as required by G.S. 7B-1101(1), and regardless of whether that failure prejudiced the father, remand was required for appointment of a guardian ad litem and for rehearing. In re S.B., 166 N.C. App. 488, 602 S.E.2d 691, 2004 N.C. App. LEXIS 1776 (2004).

The proper time for appointing a guardian ad litem under G.S. 7B-1101, where grounds for termination are based on G.S. 7B-1111(a)(6), is upon the filing of the petition. In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43, 2005 N.C. App. LEXIS 172 (2005).

Mother Was Not Entitled to Appointment of Guardian Ad Litem. —

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 N.C. App. LEXIS 2116 (2005).

In termination of parental rights action, the trial court was not required to appoint a guardian ad litem for the mother under G.S. 7B-1101, because the termination did not allege dependency. In re J.S.L., 177 N.C. App. 151, 628 S.E.2d 387, 2006 N.C. App. LEXIS 883 (2006).

Trial court terminated a mother’s parental rights based on: (1) neglect; (2) wilfully leaving the children in foster care for more than 12 months without showing reasonable progress; (3) wilfully failing to provide financial support to the children; and (4) abandonment of the children for at least six months immediately preceding the filing of the petition for termination of parental rights; the mother did not request that a guardian ad litem (GAL) be appointed. Also, the petition for termination of her parental rights did not allege the mother’s incapability to parent the children, and no allegations were asserted, and no showing was made that the mother was incompetent; thus, the trial court was not required to appoint a GAL to the mother under either G.S. 7B-1101 and 35A-1101, or G.S. 1A-1-17 . In re D.H., 177 N.C. App. 700, 629 S.E.2d 920, 2006 N.C. App. LEXIS 1195 (2006).

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 N.C. App. LEXIS 2116 (2006).

Trial court erred in failing to appoint a guardian ad litem for a mother in an action to terminate her parental rights; under the version of G.S. 7B-1101 in effect when the petition was filed, a guardian was required where it was alleged that the mother was physically disabled pursuant to G.S. 7B-1111(a)(6). In re D.S.C., 168 N.C. App. 168, 607 S.E.2d 43, 2005 N.C. App. LEXIS 172 (2005).

Failure to Appoint Guardian Ad Litem Is Not Reversible Error. —

Where multiple grounds are alleged for termination of parental rights, including an allegation under G.S. 7B-1111(6) that the parent is unable to provide for the care of the child, where that allegation is not pursued, and where valid findings support termination on other statutory grounds, it is not reversible error for a trial court to fail to appoint a guardian ad litem for the parent, as required by G.S. 7B-1101(1). In re Dhermy, 161 N.C. App. 424, 588 S.E.2d 555, 2003 N.C. App. LEXIS 2181 (2003).

Failure to Appoint Counsel Not Error. —

In an action to terminate the mother’s parental rights, the trial court’s failure to appoint the mother a guardian ad litem did not amount to reversible error. There were no circumstances of the type that, of brought to the judge’s attention, would have raised a substantial question regarding the mother’s competency. In re S.N.H., 177 N.C. App. 82, 627 S.E.2d 510, 2006 N.C. App. LEXIS 717 (2006).

Trial court’s failure to appoint counsel for the father was not error where the father failed to contact the clerk as specifically required and stated on the summons. In re R.R., 180 N.C. App. 628, 638 S.E.2d 502, 2006 N.C. App. LEXIS 2506 (2006).

Right to Effective Assistance of Counsel. —

If no remedy is provided for inadequate representation, the statutory right to counsel will become an empty formality, therefore, the right to counsel provided by this section includes the right to effective assistance of counsel. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676, 1989 N.C. App. LEXIS 48 (1989).

Where lack of preparation for proceedings to terminate mother’s parental rights was due to respondent’s unexcused unavailability, the trial court did not err in denying her counsel’s motion to continue or withdraw, and there was no denial of effective assistance of counsel. Buncombe County Dep't of Social Servs. v. Burks, 92 N.C. App. 662, 375 S.E.2d 676, 1989 N.C. App. LEXIS 48 (1989).

The right to counsel provided by this section includes the right to effective assistance of counsel. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393, 1996 N.C. App. LEXIS 705 (1996).

A claim of ineffective assistance of counsel requires the respondent to show that counsel’s performance was so serious as to deprive the represented party of a fair hearing. In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393, 1996 N.C. App. LEXIS 705 (1996).

Mother who was facing termination of parental rights had the right to be represented by counsel; the trial court erred when it denied the mother’s request for court-appointed counsel, even though the mother (1) had not answered a petition that the department of social services filed, (2) did not attend a pretrial conference that the trial court scheduled, and (3) made her request for counsel on the day the case was set for a hearing. In re Hopkins, 163 N.C. App. 38, 592 S.E.2d 22, 2004 N.C. App. LEXIS 266 (2004), overruled, In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Failure not to remove counsel was not an error. —

In a termination of parental rights proceeding where the father was alleged to have abused and neglected the children, the trial court did not err in not removing the father’s attorney from the case on the basis that counsel failed to schedule a new hearing in the abuse and neglect hearing, as the father did not show prejudice arising from there being no rehearing in the abuse and neglect proceeding prior to the termination hearing. In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65, 2002 N.C. App. LEXIS 1273 (2002).

Residing or Found in District. —

Where mother left with child for Ohio four days before the petition was filed, the child was not “residing in” or “found in” the district “at the time of filing” and therefore the petition failed for lack of subject matter jurisdiction. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73, 1985 N.C. App. LEXIS 4084 (1985).

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 G.S. 7B-200(a)(4) and 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 N.C. App. LEXIS 1191 (2003).

Service Upon Child. —

Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court’s jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children’s guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17, 2009 N.C. LEXIS 113 (2009).

The district court had jurisdiction over the subject matter of petition filed, signed and verified by county division of social services, which alleged that child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

District court in New Hanover County had jurisdiction over the father’s petition to terminate the mother’s parental rights despite the fact that Wake County still maintained jurisdiction over the child custody proceeding because the New Hanover County court found the child to be neglected. In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421, 2003 N.C. App. LEXIS 236 (2003).

When a child was undisputedly present in the county over which a district court had jurisdiction when a petition to terminate the parental rights of the child’s father was filed in that court, and the father did not seek a change of venue after the petition was filed, waiving any defect in venue under G.S. 1A-1, N.C. R. Civ. P. 12(b), the district court properly heard the petition. In re J.L.K., 165 N.C. App. 311, 598 S.E.2d 387, 2004 N.C. App. LEXIS 1162 (2004).

Trial court had subject matter jurisdiction to enter an order terminating the father’s parental rights even though the child and the child’s custodial guardians resided in Alabama because no determination was made that the child’s parents did not reside in North Carolina. In re H.L.A.D., 184 N.C. App. 381, 646 S.E.2d 425, 2007 N.C. App. LEXIS 1482 (2007), aff'd, 362 N.C. 170, 655 S.E.2d 712, 2008 N.C. LEXIS 25 (2008).

Trial court had subject matter jurisdiction to terminate a father’s parental rights because North Carolina was the child’s home State since she lived there with the mother, and Virginia no longer possessed exclusive, continuing subject matter jurisdiction; neither the father, the mother, nor the child actually resided in Virginia at the time of the filing of the motion to terminate the father’s parental rights. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

Court Had Jurisdiction. —

There is no authority that compels dismissal of an action solely because petitioner fails to include the G.S. 7B-1104(7) statement of fact in a termination petition. In re J.D.S., 170 N.C. App. 244, 612 S.E.2d 350, 2005 N.C. App. LEXIS 1013, cert. denied, 360 N.C. 64, 623 S.E.2d 584, 2005 N.C. LEXIS 1209 (2005).

While the original summons was not yet dormant, because the second summons did not conform with the requirements of N.C. R. Civ. P. 4(d), the original action was discontinued, and the trial court’s subject matter jurisdiction was reinvoked. Because the parents were properly served with newly issued summons, commencing new actions and reinvoking the trial court’s subject matter jurisdiction as of their respective dates of issuance, the contention that the court lacked subject matter jurisdiction over the parties in the termination of parental rights hearing due to ineffective service was without merit. In re D.B., 186 N.C. App. 556, 652 S.E.2d 56, 2007 N.C. App. LEXIS 2257 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734, 2008 N.C. LEXIS 492 (2008).

Neither before nor after the trial court’s entry of the nonsecure custody orders had there been any custody proceedings instituted or custody orders entered in any state other than North Carolina, and the child had lived in the State with his foster parents since September 2011, and thus North Carolina became the child’s home state such that the trial court possessed jurisdiction to terminate the mother’s parental rights. In re N.T.U., 234 N.C. App. 722, 760 S.E.2d 49, 2014 N.C. App. LEXIS 685 (2014).

Trial court had exclusive, original jurisdiction over the termination of a parental rights case regarding a child pursuant to the statute and the Uniform Child-Custody Jurisdiction and Enforcement Act because the child resided in, was found in, or was in the legal or actual custody of a county department of social services at the time of filing of the petition, North Carolina was her home state, and process was served on the mother. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

Trial court properly exercised subject matter jurisdiction because regardless of any temporary emergency jurisdiction exercised during the initial period of the child’s life or during the time leading up to her adjudication as a dependent and neglected juvenile, it had exclusive, original jurisdiction over all petitions and motions concerning termination of parental rights pursuant to the statute and in conformance with the Uniform Child-Custody Jurisdiction and Enforcement Act. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

Statute properly focuses the question of subject matter jurisdiction on the custody, location, or residence of the subject child in a termination of parental rights proceeding rather than on the residential state of the parents. In re N.P., 376 N.C. 729, 855 S.E.2d 203, 2021- NCSC-11, 2021 N.C. LEXIS 173 (2021).

In a case in which the paternal aunt petitioned to terminate the parental rights of the mother, the trial court had subject matter jurisdiction as the aunt was the legal permanent guardian of one of the children, and she filed the petition in the county in which she resided with the child. In re M.J.M.., 2021-NCSC-100, 378 N.C. 477, 861 S.E.2d 815, 2021- NCSC-100, 2021 N.C. LEXIS 849 (2021).

In a case in which the paternal aunt petitioned to terminate the parental rights of the mother, the trial court had subject matter jurisdiction as the aunt was the legal permanent guardian of one of the children, and she she filed the petition in the county in which she resided with the child. In re M.J.M.., 2021-NCSC-100, 378 N.C. 477, 861 S.E.2d 815, 2021- NCSC-100, 2021 N.C. LEXIS 849 (2021).

Continuing Jurisdiction. —

Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Refusal to Assert Jurisdiction. —

Although child resided in North Carolina, the court properly declined jurisdiction where the father continued to reside in the state of the court of original jurisdiction; thus, the Florida court retained jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. In re Bean, 132 N.C. App. 363, 511 S.E.2d 683, 1999 N.C. App. LEXIS 112 (1999).

Jurisdiction Lacking Under the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act. —

Although the general requirement for jurisdiction was satisfied as the children who were the subject of a petition to terminate their mother’s parental rights resided in North Carolina when the petition was filed, the trial court’s order denying the mother’s motion to dismiss was vacated as the trial court lacked subject matter jurisdiction under the North Carolina Uniform Child-Custody Jurisdiction and Enforcement Act. In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147, 2004 N.C. App. LEXIS 1163 (2004).

District court erred in terminating a father’s parental rights because it never acquired subject matter jurisdiction; without an order from the New Jersey court relieving itself of jurisdiction, the district court lacked any basis to conclude it acquired subject matter jurisdiction over the case. In re T.E.N., 252 N.C. App. 461, 798 S.E.2d 792, 2017 N.C. App. LEXIS 218 (2017).

Jurisdiction During Pendency of Custody Review Order Appeal. —

Where the trial court terminated the mother’s parental rights during the pendency of the mother’s custody review order appeal, G.S. 1-294 did not deprive the trial court of jurisdiction to terminate the mother’s parental rights, as such jurisdiction was granted under G.S. 7B-1101 and G.S. 7B-1103. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Jurisdiction During Pendency of Appeal of Permanency Planning Order. —

After a mother filed a notice of appeal of a permanency planning order under G.S. 7B-1003(b), the trial court no longer had jurisdiction to rule on the petitions to terminate her parental rights under G.S. 7B-1101; consequently, the order terminating the mother’s parental rights was void ab initio, and did not render moot the appeal of the permanency planning order. In re Z.J.T.B., 183 N.C. App. 380, 645 S.E.2d 206, 2007 N.C. App. LEXIS 1161 (2007).

Subject Matter Jurisdiction Absent. —

North Carolina trial court lacked subject matter jurisdiction over a termination of parental rights proceeding because a prior custody order was entered in a court in New Jersey. In re J.A.P., 218 N.C. App. 190, 721 S.E.2d 253, 2012 N.C. App. LEXIS 65 (2012).

Trial court lacked subject matter jurisdiction to grant a mother’s petition to terminate respondent’s parental rights pursuant; the trial court erred in concluding that an Indiana court relinquished jurisdiction to North Carolina’s courts by entering an order in the Indiana Action dismissing the paternal grandparents’ motion for visitation rights. In re J.D., 234 N.C. App. 342, 759 S.E.2d 375, 2014 N.C. App. LEXIS 614 (2014).

County court did not have subject matter jurisdiction over the petition for termination of the father’s parental rights because the very first allegation in the petitions to terminate parental rights was that the children were citizens and residents of Washington State, which alone established the lack of subject matter jurisdiction for termination of parental rights; both children had resided in Washington state with the mother since 2007; they did not reside in and were not found in Alexander County, North Carolina, when the petition was filed on October 17, 2011; and the children had never been in the legal or actual custody of the county department of social services or any child-placing agency. In re M.C., 244 N.C. App. 410, 781 S.E.2d 70, 2015 N.C. App. LEXIS 1031 (2015).

Jurisdiction Absent Where Petition Was Insufficient. —

Where a termination of rights petition did not address guardianship issues raised by the noncustodial parent respondent, where no custody order was attached, and where the trial court merely announced that it had decided the claimed guardianship was void, without further explanation, it was impossible to review the trial court’s decision and the appeals court was forced to hold that the trial court had lacked subject matter jurisdiction due to the facial defects of the petition. In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298, 2005 N.C. App. LEXIS 1093 (2005).

Because the petition for termination of parental rights was not accompanied by a copy of the custody order then in effect, the petition failed to confer subject matter jurisdiction on the trial court; that omission need not have been fatal if the Vance County Department of Social Services (DSS) had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court. Thus, it was the failure by the DSS either to attach the custody order to the petition or to remedy that omission that ultimately deprived the trial court of subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895, 2006 N.C. App. LEXIS 1224 (2006).

Where a petition to terminate parental rights was captioned with the names of both children, but the summons that was issued referenced only the younger child, the trial court lacked subject matter jurisdiction to terminate the mother’s parental rights in the older child because a summons pertaining to the child was not issued. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23, 2007 N.C. App. LEXIS 683 (2007).

Court Erred in Terminating Parental Rights Because It Lacked Subject Matter Jurisdiction. —

District court erred in terminating a mother’s parental rights because it lacked subject matter jurisdiction to modify a California court’s child-custody determination inasmuch as the California court did not determine that it no longer had exclusive, continuing jurisdiction, neither court made a finding that the mother did not presently reside in California, and the California court had not terminated its jurisdiction. In re D.A.Y., 266 N.C. App. 33, 831 S.E.2d 854, 2019 N.C. App. LEXIS 527 (2019).

Waiver of Counsel by Inaction Not Allowed. —

The General Assembly did not intend to allow for waiver of court appointed counsel due to inaction prior to the hearing. If a parent is present at the hearing and does not waive representation, counsel shall be appointed. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823, 1997 N.C. App. LEXIS 792 (1997).

Ruling by the trial court that parents right to counsel was waived by inaction prior to the termination hearing was prejudicial error. Little v. Little, 127 N.C. App. 191, 487 S.E.2d 823, 1997 N.C. App. LEXIS 792 (1997).

Appointment of Counsel for Indigent Parents in Proceedings Brought Prior to August 9, 1981. —

In proceedings to terminate parental rights brought prior to August 9, 1981, the effective date of the 1981 amendment to this section, relating to appointment of counsel for indigent parents, where other circumstances do not dictate to the contrary an indigent parent is not entitled to appointment of counsel as a matter of law; rather, the right to appointed counsel must be determined on a case by case basis. In re Clark, 303 N.C. 592, 281 S.E.2d 47, 1981 N.C. LEXIS 1204 (1981).

Payment of Fees of Counsel Appointed in Proceedings Brought Prior to August 9, 1981. —

Attorneys’ fees allowed by the court for attorneys appointed in proceedings to terminate parental rights, whether as separate counsel or as guardian ad litem, brought before August 9, 1981, the effective date of the 1981 amendment to this section, shall be borne by the Administrative Office of the Courts. In re Clark, 303 N.C. 592, 281 S.E.2d 47, 1981 N.C. LEXIS 1204 (1981).

Jurisdiction Absent Where the Department of Social Services Did Not Have Custody at the Time the Petition Was Filed. —

Since the trial court lacked jurisdiction as the children were not in the custody of the Department of Social Services at the time the petition to terminate the mother’s parental rights was filed and the children were not residing in North Carolina pursuant to G.S. 7B-1101, the trial court’s order terminating the mother’s parental rights was vacated. In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808, 2006 N.C. App. LEXIS 933 (2006).

Waiver of Insufficient Process by Making General Appearance. —

Since the failure of a summons to comply with G.S. 7B-1106(a)(5) implicated the trial court’s jurisdiction over the children, not over the termination of parental rights action as a whole, pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(h)(1), a general appearance by the children’s guardian ad litem and attorney advocate waived any objection to the jurisdictional requirements of G.S. 7B-1101. In re J.T., 363 N.C. 1, 672 S.E.2d 17, 2009 N.C. LEXIS 113 (2009).

CASE NOTES

Revised Statute. —

Although prior versions of the statute also provided for the appointment of an assistive guardian ad litem for a parent who suffers from diminished capacity, the N.C. General Assembly eliminated that provision when it revised the statute. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

Appointment of Guardian Ad Litem. —

G.S. 7B-1101.1 requires that a guardian ad litem be appointed in accordance with the provisions of G.S. 1A-1, N.C. R. Civ. P. 17 to represent a parent, meaning that where an allegation is made that parental rights should be terminated, a trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent, and an allegation under G.S. 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed; at the hearing, the trial court must determine whether the parents are incompetent within the meaning of G.S. 35A-1101, such that the individual would be unable to aid in their defense at the termination of parental rights proceeding, and the trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

Trial court complied with the statutory mandate in G.S. 7B-1101.1(c) and did not err in failing to timely appoint a mother a guardian ad litem in a termination of parental rights proceeding because the trial court appointed a guardian ad litem for the mother seventeen days after the petition for termination was filed and more than three months before the first hearing in the termination proceeding took place; G.S. 7B-1101.1(c) only mandates timely appointment of a guardian ad litem during a termination of parental rights proceeding. In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282, 2008 N.C. App. LEXIS 2234 (2008).

Trial court did not abuse its discretion by appointing a guardian ad litem for the mother in an assistance-only capacity under because the proposed guardian ad litem specifically testified that the mother was reasonable, smart, and understood the proceedings, and the mother told the trial court that she graduated from high school, paid her bills, managed her daily affairs, and was capable of making her own decisions. In re A.R., 238 N.C. App. 302, 767 S.E.2d 427, 2014 N.C. App. LEXIS 1401 (2014).

Discretion of Trial Court. —

Statute vests discretion in the trial court, which may hold a hearing on appointing a guardian ad litem only for a parent who is incompetent, and the record established that the severity of the mother’s mental health problems was well known to the trial court, but they did not rise to the level of incompetency, and the record contained facts in keeping with a finding of competency, including in part that she attended a vocational rehabilitation program, plus her denial of disability benefits was some evidence to support a finding of competency; the trial court did not err in not inquiring into her competency before holding a hearing to terminate her rights. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

Hearing Required To Determine Reasonable Basis For Believing Parent Incompetent Or Has Diminished Capacity. —

Trial court acting under G.S. 7B-1101.1(c), must conduct a hearing in accordance with the procedures required under G.S. 1A-1, N.C. R. Civ. P. 17, in order to determine whether there is a reasonable basis for believing that a parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest; if the court chooses to exercise its discretion to appoint a guardian ad litem under G.S. 7B-1101.1(c), then the trial court must specify the prong under which it is proceeding, including findings of fact supporting its decision, and specify the role that the guardian ad litem should play, whether one of substitution or assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Role of the guardian ad litem should be determined based on whether the trial court determines that the parent is incompetent or whether the trial court determines that the parent has diminished capacity and cannot adequately act in his or her own interest G.S. 1A-1, N.C. R. Civ. P. 17(e), which addresses the duties of a guardian ad litem for an incompetent person, should apply if the parent is incompetent, the role of the guardian ad litem should be one of substitution; on the other hand, if the parent has diminished capacity, G.S. 7B-1101.1(e) should apply and the role of the guardian ad litem should be one of assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Both G.S. 7B-1101.1(e) and G.S. 1A-1, N.C. R. Civ. P. 17(e) can be given effect by focusing on the two separate prongs of G.S. 7B-1101.1(c), with one authorizing appointment of a guardian ad litem if the parent is incompetent, while the second authorizing appointment of a guardian ad litem if the parent has diminished capacity; the extent of the parent’s disability logically informs the role a guardian ad litem needs to play for the parent in a termination of parental rights proceeding. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

Incompetent Or Has Diminished Capacity. —

Trial court erred in terminating a mother’s parental rights because she had a substance abuse history and was schizophrenic, the allegations against her partly revolved around her multiple, serious mental health conditions, her mental illness was one of the facts that led to her child’s removal, and the trial court failed to conduct an inquiry into whether it was necessary to appoint her a guardian ad litem. In re T.L.H., 237 N.C. App. 239, 765 S.E.2d 88, 2014 N.C. App. LEXIS 1178 (2014), rev'd, 368 N.C. 101, 772 S.E.2d 451, 2015 N.C. LEXIS 453 (2015).

Appointment of Guardian Ad Litem Not Required. —

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), there was no requirement that a guardian ad litem be appointed for the parent, even though the petition made reference to the mother’s drug abuse and mental illness, because there was no allegation under G.S. 7B-1111(a)(6) that the mother was incapable of caring for her children, she did not seek a guardian ad litem, and the trial court properly inquired into her competency, under G.S. 1A-1, N.C. R. Civ. P. 17. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

It was not an abuse of discretion for the trial court to fail to inquire as to a mother’s competency as: (1) the mother testified at the disposition hearing and the adjudication hearing about her employment; (2) the mention of the mother’s emotional imbalance and a psychiatric evaluation, which found her to have a flare for dramatic behavior, to be easily excited, to be prone to emotional outbursts, to be overly sensitive to the opinions of others, and to be impulsive and rebellious, did not constitute a diagnosis of a mental health issue; (3) as the mother had made threats to harm the child, it was prudent to require a psychological evaluation before visitation resumed; and (4) doubting the mother’s ability to parent the child did not necessarily indicate that the mother was incapable of handling her affairs for G.S. 7B-1101.1(c) and G.S. 35A-1101 purposes. In re A.R.D., 204 N.C. App. 500, 694 S.E.2d 508, 2010 N.C. App. LEXIS 1001, aff'd, 364 N.C. 596, 704 S.E.2d 510, 2010 N.C. LEXIS 1075 (2010).

Guardian Ad Litem’s Role Limited to One of Assistance, Not One of Substitution. —

Pursuant to G.S. 7B-1101.1(e), the guardian ad litem’s role was limited to one of assistance, not one of substitution; therefore, the guardian ad litem did not have the authority to sign the notice of appeal in place of the parents challenging the termination of their parental rights. In re L.B., 187 N.C. App. 326, 653 S.E.2d 240, 2007 N.C. App. LEXIS 2456 (2007), aff'd, 362 N.C. 507, 666 S.E.2d 751, 2008 N.C. LEXIS 807 (2008).

Removal of Guardian ad Litem. —

Given the statutory changes, respondent’s assistive guardian ad litem (GAL)would have been removed by operation of law, and nothing indicated that substantial questions had arisen regarding respondent’s competency sufficient to qualify her for a substitutive GAL when she had previously not qualified. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

In a termination of parental rights action, the trial court erred by failing to determine whether the mother was in need of a guardian ad litem pursuant to G.S. 7B-1101.1. The trial court should have inquired into the mother’s competency pursuant to G.S. 1A-1, N.C. R. Civ. P. 17, given the allegations made by the Department of Social Services that the mother had problems controlling the mother’s anger, tended to be aggressive towards others, and lacked an understanding of the mother’s prior neglect of the minor children. In re N.A.L., 193 N.C. App. 114, 666 S.E.2d 768, 2008 N.C. App. LEXIS 1763 (2008).

Withdrawal of Counsel. —

Order terminating a mother’s parental rights was vacated because he district court erred in allowing her counsel to withdraw her representation without first confirming that she had been notified of counsel’s intention to do so; the record was devoid of any evidence whatsoever that the mother received any notice from her trial counsel that counsel would seek to withdraw from her representation at the start of the termination of parental rights hearing. In re M.G., 239 N.C. App. 77, 767 S.E.2d 436, 2015 N.C. App. LEXIS 21 (2015).

Because a mother was already represented by counsel, she had no need for provisional counsel, counsel did not assume a provisional role in the proceeding, and the district court was not excused from the necessity for compliance with the usual procedures required prior to the entry of an order allowing counsel to withdraw by virtue of the provisions of subsection (a)(1). In re M.G., 239 N.C. App. 77, 767 S.E.2d 436, 2015 N.C. App. LEXIS 21 (2015).

Trial court did not abuse its discretion in granting a father’s appointed counsel’s motion to withdraw where, on three separate occasions, it advised the father of his responsibility to attend all hearings and maintain communication with counsel, the father made no apparent effort to comply, admitted he did not want to receive mail from the county social services agency or other interested parties, and verbally consented to his attorney’s withdrawal as counsel. In re T.A.M., 2021-NCSC-77, 2021 N.C. LEXIS 611 (June 18, 2021).

Error in Permitting Counsel to Withdraw Without Notice to Parent. —

Trial court erred by excusing the father’s trial counsel from attending and participating in the termination of parental rights hearing when counsel failed to notify the father of his intention to withdraw and the trial court did not continue the termination hearing to ensure the father was represented by counsel. In re D.E.G., 228 N.C. App. 381, 747 S.E.2d 280, 2013 N.C. App. LEXIS 829 (2013).

Waiver of Right to Counsel. —

In a parental rights termination case, the trial court did not err in allowing a child’s mother to waive her right to counsel pursuant to G.S. 7B-1101.1 and represent herself at the termination hearing, where the mother confirmed that she wanted to represent herself and the mother read and signed the waiver of counsel form, which expressly stated that she did not want the assistance of a lawyer. In re J.K.P., 238 N.C. App. 334, 767 S.E.2d 119, 2014 N.C. App. LEXIS 1404 (2014).

No Right to Appeal Found. —

Respondent claimed that the order entered on her assistive guardian ad litem’s motion to withdraw was fatally deficient because it does not make adequate findings or conclusions, but respondent had no right to appeal this order, and even if she did, it would have been lost due to her failure to provide timely written notice of her intent to exercise that right. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

Ineffective Assistance of Counsel. —

Father was entitled to a new hearing on the termination of his parental rights because he was denied effective assistance of counsel; the father’s counsel did not make sufficient efforts to communicate with him in order to provide him with effective representation, and that failure deprived the father of a fair hearing. In re B.L.H., 239 N.C. App. 52, 767 S.E.2d 905, 2015 N.C. App. LEXIS 20 (2015).

In a termination of parental rights case, the record on appeal contained insufficient information to allow the appellate court to review the mother’s ineffective assistance of counsel claim because it was silent on the reasons why counsel did not object during the testimony of the witnesses for the Department of Health and Human Services, did not cross-examine those witnesses, and did not present any evidence; the record did not compel a conclusion that the mother did not cooperate with her counsel and waived her right to representation or undermined her counsel’s ability to advocate for her; and the appellate court declined to speculate about what counsel could have argued or how it would have affected the outcome. In re C.D.H., 265 N.C. App. 609, 829 S.E.2d 690, 2019 N.C. App. LEXIS 492 (2019).

Father failed to show that any of the alleged deficiencies in his counsel’s performance or conduct would have resulted in a different outcome, and thus father could not prevail on his claim of ineffective assistance of counsel. In re G.G.M., 377 N.C. 29, 855 S.E.2d 478, 2021- NCSC-25, 2021 N.C. LEXIS 272 (2021).

CASE NOTES

Filing a Petition. —

District court re-acquired subject matter jurisdiction over the proceedings because the Department of Social Services (DSS) initiated a new action by issuing a new summons and filing a termination of parental rights petition against the father and the DSS had standing to file the petition under G.S. 7B-1103(a)(4) due to the mother’s relinquishment of custody of her daughter to the DSS. In re A.L., 245 N.C. App. 55, 781 S.E.2d 856, 2016 N.C. App. LEXIS 100 (2016).

Rehearing In Abuse And Neglect Proceeding Not Required. —

In a termination of parental rights proceeding, the father failed to show an error arising from the trial court’s failure to hold a rehearing in the abuse and neglect proceeding prior to the case, as such a hearing on abuse and neglect was redundant with parts of the termination hearing, and there was a length of delay resulting from an earlier appeal, the status of the children and the need to determine permanency had changed. In re Faircloth, 153 N.C. App. 565, 571 S.E.2d 65, 2002 N.C. App. LEXIS 1273 (2002).

Notice Requirement. —

Trial court erred in terminating the parental rights of parents to their minor children; the notice of the action required by G.S. 7B-1106.1 provided to the parents by an agency failed to meet the statutory requirements for such a notice, the service of the notice was made mandatory by this section and G.S. 1A-1, Rule 5(b), and the agency’s failure to provide a proper notice was reversible error. Orange County Dep't of Soc. Servs. v. Alexander, 158 N.C. App. 522, 581 S.E.2d 466, 2003 N.C. App. LEXIS 1180 (2003).

Because G.S. 7B-1102(b) merely directed the Department of Social Services (DSS) to serve the motion and notice pursuant to G.S. 1A-1-4, and nowhere suggested that the DSS had to issue a summons instead of or in addition to those documents. In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626, 2007 N.C. App. LEXIS 23 (2007).

Because a county agency failed to issue a summons to a minor child or the child’s guardian ad litem under G.S. 7B-1106(a)(5), the trial court lacked subject matter jurisdiction over a termination of parental rights proceeding; had the agency filed a motion to terminate under G.S. 7B-1102 in an ongoing juvenile abuse, neglect, and dependency case, the summons would not have been required, and the agency would only have been required to service notice of the motion to terminate on the parties specified in G.S. 7B-1106.1. In re I.D.G., 188 N.C. App. 629, 655 S.E.2d 858, 2008 N.C. App. LEXIS 195 (2008).

CASE NOTES

Editor’s Note. —

Some of the following cases were decided prior to the enactment of this Chapter.

Former G.S. 7A-289.24 (see now this section) limits the persons or agencies who may petition for termination of parental rights. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289, 1986 N.C. App. LEXIS 2448 (1986).

Child Residing Continuously With Petitioner. —

Child can reside continuously with a person for the purposes of G.S. 7B-1103(a)(5) despite spending a limited number of nights away from that person’s home. In re A.D.N., 231 N.C. App. 54, 752 S.E.2d 201, 2013 N.C. App. LEXIS 1250 (2013).

Evidence supported the trial court’s finding that a child resided continuously with his grandmother for the two-year period immediately preceding the filing of the petition to terminate parental rights. Consequently, the grandmother had standing under G.S. 7B-1103(a)(5) to file the petition. In re A.D.N., 231 N.C. App. 54, 752 S.E.2d 201, 2013 N.C. App. LEXIS 1250 (2013).

Proof of Intent to Adopt Not a Prerequisite. —

Proof of a petitioner’s plan to adopt the child is not a prerequisite for the institution of a proceeding to terminate the parental rights of the child’s parents. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317, 1988 N.C. App. LEXIS 917 (1988).

Standing to File a Termination Petition. —

District court re-acquired subject matter jurisdiction over the proceedings because the Department of Social Services (DSS) initiated a new action by issuing a new summons and filing a termination of parental rights petition against the father and the DSS had standing to file the petition under G.S. 7B-1103 due to the mother’s relinquishment of custody of her daughter to the DSS. In re A.L., 245 N.C. App. 55, 781 S.E.2d 856, 2016 N.C. App. LEXIS 100 (2016).

Orders granting the county department of social services (DSS) custody of a child were not void for lack of subject matter jurisdiction, and DSS had standing to file the petition to terminate the mother’s parental rights, because the trial court had “home state” jurisdiction to make an initial child-custody determination regarding the child; the child had lived with the mother in North Carolina during the six months immediately preceding the filing of the juvenile petition. In re S.E., 373 N.C. 360, 838 S.E.2d 328, 2020 N.C. LEXIS 94 (2020).

Department of Social Services had standing to seek termination of the father’s parental rights because the mother had relinquished her own parental rights and transferred legal custody of the child to the agency. In re E.B., 375 N.C. 310, 847 S.E.2d 666, 2020 N.C. LEXIS 839 (2020).

Social worker filed the termination petition in her capacity as a representative of the Department of Social Services, and since it was clear from the record that the termination petition was filed by the Department, an organization with standing under G.S. 7B-1103(a)(3), mother could not show that the trial court lacked subject matter jurisdiction. In re Z.G.J. (Aug. 27, 2021).

As trial court possessed subject matter jurisdiction over the juvenile petition and entered its orders placing the child in the custody of Wake County Human Services (WCHS) in the trial court’s capacity as a court of competent jurisdiction, WCHS had standing under N.C. Gen. Stat. § 7B-1103(a)(3) to file its motion to terminate mother’s parental rights and trial court had jurisdiction to issue the termination of rights order. In re M.R.J., 2021-NCSC-112, 378 N.C. 648, 862 S.E.2d 639, 2021- NCSC-112, 2021 N.C. LEXIS 927 (2021).

Social worker filed the termination petition in her capacity as a representative of the Department of Social Services, and since it was clear from the record that the termination petition was filed by the Department, an organization with standing under N.C. Gen. Stat. § 7B-1103(a)(3), mother could not show that the trial court lacked subject matter jurisdiction. In re Z.G.J., 2021-NCSC-102, 378 N.C. 500, 862 S.E.2d 180, 2021- NCSC-102, 2021 N.C. LEXIS 846 (2021).

Allegations of Standing by DSS. —

Allegations of petition filed by county department of social services, though inartfully drafted, were sufficient to establish that DSS was a party entitled to petition for termination of respondent’s parental rights in her children pursuant to G.S. 7A-289.24(3) (see now this section). Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289, 1986 N.C. App. LEXIS 2448 (1986).

Agency’s Lack of Standing Based on No Longer Having Custody of a Child. —

Trial court lacked jurisdiction to enter an order terminating a mother’s parental rights, because an agency no longer had custody of the child when it brought the termination action, and therefore lacked standing to bring the action pursuant to G.S. 7B-1103(a)(3). In re Miller, 162 N.C. App. 355, 590 S.E.2d 864, 2004 N.C. App. LEXIS 114 (2004).

Since it was undisputed that the Department of Social Services (DSS) did not have custody of the children on the date upon which the petition was filed and the children were living in South Carolina at the time, at the time of the filing of the DSS petition, DSS lacked standing to petition for termination of parental rights. In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808, 2006 N.C. App. LEXIS 933 (2006).

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 N.C. App. LEXIS 802, aff'd, 361 N.C. 683, 651 S.E.2d 884, 2007 N.C. LEXIS 1103 (2007).

Agency Had Standing Under Valid Custody Order. —

Summons was issued forthwith after the filing of the neglect and dependency petition, and even though the mother was never served with the summons, she made a general appearance in the action before the trial court, thus waiving any defense as to personal jurisdiction. No defect in the trial court’s jurisdiction otherwise appearing, the appellate court concluded that the trial court had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the Department of Social Services (DSS), which gave DSS standing to file the instant petition for termination of parental rights per G.S. 7B-1103(a). In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485, 2009 N.C. App. LEXIS 1374 (2009).

Agency Had Standing Since No Other Court Had Exercised Jurisdiction. —

County department of social services had standing to file a termination petition under G.S. 7B-1103(a)(3) since the record established that emergency jurisdiction under G.S. 50A-204 existed at the time the department filed its juvenile petition, as a result, the department had been awarded custody by a court of competent jurisdiction, and those orders remained in effect pursuant to G.S. 50A-204(b) because no other orders had been entered by another state with jurisdiction. In re E.X.J., 191 N.C. App. 34, 662 S.E.2d 24, 2008 N.C. App. LEXIS 1172 (2008), aff'd, 363 N.C. 9, 672 S.E.2d 19, 2009 N.C. LEXIS 110 (2009).

Substitution of DSS for Director as Petitioner. —

Respondents were not entitled to dismissal of petition by reason of the erroneous designation of the director of the county department of social services as petitioner, and could in no way be prejudiced by permitting DSS to ratify the petition and be substituted as petitioner. Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289, 1986 N.C. App. LEXIS 2448 (1986).

Guardian ad litem had standing to petition for the termination of a mother’s parental rights under G.S. 7B-1103(a)(5), and the trial court had jurisdiction over the termination proceedings, where the child had continuously lived with the guardian ad litem for over two years when the petition for termination was filed. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300, 2005 N.C. App. LEXIS 2724 (2005).

A guardian ad litem, who did not file or join in the filing of the petition and, thus, was not a party in a termination of parental rights case, did not have to be served with a copy of the notice of appeal by the parent; while a guardian ad litem for a child in a termination of parental rights proceeding may, in some instances, be a petitioner, there is no statutory authority for that guardian ad litem to be a respondent or party. In re Brown, 141 N.C. App. 550, 539 S.E.2d 366, 2000 N.C. App. LEXIS 1310 (2000), cert. denied, 353 N.C. 374, 547 S.E.2d 809, 2001 N.C. LEXIS 382 (2001).

Grandmother Proper Person To File Petition. —

Since the minor child lived with the grandmother for the two years preceding the filing of the motion to terminate the mother’s parental rights, the grandmother was a proper person to file the petition. Lechuga v. Ore, 160 N.C. App. 586, 586 S.E.2d 486, 2003 N.C. App. LEXIS 1816 (2003).

Out-of-State Guardians had Standing to File Petition. —

Guardians who had custody of the child in Alabama had standing to file a petition for termination of parental rights pursuant to G.S. 7B-1103(a)(3). In re H.L.A.D., 184 N.C. App. 381, 646 S.E.2d 425, 2007 N.C. App. LEXIS 1482 (2007), aff'd, 362 N.C. 170, 655 S.E.2d 712, 2008 N.C. LEXIS 25 (2008).

Foster Parents Properly Sought Termination of Mother’s Parental Rights. —

Pursuant to G.S. 7B-1103(a)(2), foster parents of a mother’s child who had been previously appointed as the child’s guardians properly filed a petition to terminate the mother’s parental rights; another permanent planning review hearing did not have to be held prior to the filing of the termination petition. In re D.C., 225 N.C. App. 327, 737 S.E.2d 182, 2013 N.C. App. LEXIS 134 (2013).

Adoptive Parents Had Standing to File Termination Petition. —

Trial court properly terminated a mother’s parental rights while an adoption appeal was pending because the mother’s relinquishment of her parental rights was valid and conformed to the mandatory statutory requirements, grounds existed to terminate her parental rights for failure to pay child support and in the best interests of the child, the district court’s order originated as an adoption petition, and the adoptive parents had standing petition for termination of the mother’s parental rights. In re Baby Boy, 238 N.C. App. 316, 767 S.E.2d 628, 2014 N.C. App. LEXIS 1398 (2014).

No Standing To File Termination Petition. —

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 N.C. App. LEXIS 1502 (2009).

Order terminating parental rights was vacated for lack of subject matter jurisdiction because the juvenile petition was not properly verified, as the signature of the person before whom the petition was verified was illegible, nor was any title for that person given, so (1) nothing showed that person’s authority to acknowledge the verification, (2) nothing showed the department of social services obtained custody of the juvenile from a court of competent jurisdiction or had standing to move to terminate parental rights, and (3) the trial court’s orders were void ab initio. In re N.T., 240 N.C. App. 33, 769 S.E.2d 658, 2015 N.C. App. LEXIS 170 (2015), rev'd, 368 N.C. 705, 782 S.E.2d 502, 2016 N.C. LEXIS 175 (2016).

Maternal grandmother lacked standing to file a petition to terminate a father’s parental rights to his child. The grandmother did not have standing under G.S. 7B-1103(a)(2) because it was undisputed that at the time she filed the termination petition, she had not been judicially appointed as the child’s guardian. S.A.U. v. Horton, 242 N.C. App. 603, 777 S.E.2d 772, 2015 N.C. App. LEXIS 699 (2015).

Maternal grandmother lacked standing to file a petition to terminate a father’s parental rights to his child. The grandmother did not have standing to file for termination of the father’s parental rights pursuant to G.S. 7B-1103(a)(5) because she was not a person with whom the juvenile had resided for a continuous period of two years or more next preceding the filing of the petition or motion. S.A.U. v. Horton, 242 N.C. App. 603, 777 S.E.2d 772, 2015 N.C. App. LEXIS 699 (2015).

Because a maternal grandmother lacked standing to file a petition to terminate a father’s parental rights to his child, the trial court did not have subject matter jurisdiction over the termination proceedings. S.A.U. v. Horton, 242 N.C. App. 603, 777 S.E.2d 772, 2015 N.C. App. LEXIS 699 (2015).

Jurisdiction to Terminate Parental Rights During Pendency of Custody Review Order Appeal. —

Where the trial court terminated the mother’s parental rights during the pendency of the mother’s custody review order appeal, G.S. 1-294 did not deprive the trial court of jurisdiction to terminate the mother’s parental rights, as such jurisdiction was granted under G.S. 7B-1101 and G.S. 7B-1103. In re R.T.W., 359 N.C. 539, 614 S.E.2d 489, 2005 N.C. LEXIS 646 (2005).

Two-Year Period in G.S. 7B-1103(a)(5) Not Tolled. —

Two-year period required under G.S. 7B-1103(a)(5) was not tolled until a mother reached the age of majority, even though the mother did not have a guardian ad litem appointed in earlier neglect and dependency proceedings, as the mother was an adult during the entire termination of parental rights proceeding, was represented by counsel, and did not directly attack the prior neglect and dependency proceedings based on the failure to appoint a guardian ad litem for the mother; G.S. 7B-1103(a)(5) was not a statute of limitations, or the equivalent of one. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300, 2005 N.C. App. LEXIS 2724 (2005).

While it is a correct statement of the law that a statute of limitations is tolled during the minority of a plaintiff, it does not follow that the two-year requirement of G.S. 7B-1103(a)(5) is a statute of limitations or the equivalent of such; this statute confers standing on the petitioners to file a termination of parental rights proceeding based on their two-year relationship with the child, which is in no manner related to the parent or his or her relationship with the child during that two-year period, and the person or persons with whom legal custody lies during this time period is irrelevant. In re E.T.S., 175 N.C. App. 32, 623 S.E.2d 300, 2005 N.C. App. LEXIS 2724 (2005).

Jurisdiction Absent Where Petition Was Insufficient. —

Because the petition for termination of parental rights was not accompanied by a copy of the custody order then in effect, the petition failed to confer subject matter jurisdiction on the trial court; that omission need not have been fatal if the Vance County Department of Social Services (DSS) had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court. Thus, it was the failure by the DSS either to attach the custody order to the petition or to remedy that omission that ultimately deprived the trial court of subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 629 S.E.2d 895, 2006 N.C. App. LEXIS 1224 (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 N.C. App. LEXIS 1431 (2007).

Trial Court Had Subject Matter Jurisdiction, Even Though No Order Conferring Custody Was Attached to Motion. —

Motion to terminate a mother’s parental rights was not void ab initio, and the trial court had subject matter jurisdiction, even though no order conferring custody of the children upon department of social services (DSS) was attached to the motion as required by G.S. 7B-1104(5); although under G.S. 7B-1103, to have standing to file for termination of parental rights, DSS had to prove that it had legal custody at the time the petition was filed, the record contained a custody order awarding DSS custody of the children, and the mother failed to show that she was prejudiced in any way by the failure to physically attach a custody order to the motion. In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439, 2007 N.C. App. LEXIS 250 (2007).

Trial Court Had Jurisdiction to Terminate Parental Rights. —

Trial court had jurisdiction to terminate a mother’s parental rights because it had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the county department of social services, giving it standing to file the petitions for termination of parental rights pursuant to G.S. 7B-1103(a)(3); a summons was issued a day after the juvenile petitions were filed, and although the mother was not served with the summonses until after their expiration, she made a general appearance in the action before the trial court at the non-secure custody hearings, thereby waiving any objection to personal jurisdiction. In re S'N.A.S., 201 N.C. App. 581, 686 S.E.2d 917, 2009 N.C. App. LEXIS 2327 (2009).

Statutory Pleading Requirement Met. —

Since findings of fact and trial court orders established that petitioners have had the child in their legal care, custody, and control since May 2017 and the petition to terminate the parental rights of respondents was filed in August 2019, the petition contained facts sufficient to identify the petitioners as those authorized by G.S. 7B-1103 to file a petition or motion, for purposes of G.S. 7B-1104(2). In re S.C.L.R., 2021-NCSC-101, 378 N.C. 484, 861 S.E.2d 834, 2021- NCSC-101, 2021 N.C. LEXIS 845 (2021).

Since findings of fact and trial court orders established that petitioners have had the child in their legal care, custody, and control since May 2017 and the petition to terminate the parental rights of respondents was filed in August 2019, the petition contained facts sufficient to identify the petitioners as those authorized by G.S. 7B-1103 to file a petition or motion, for purposes of G.S. 7B-1104(2). In re S.C.L.R., 2021-NCSC-101, 378 N.C. 484, 861 S.E.2d 834, 2021- NCSC-101, 2021 N.C. LEXIS 845 (2021).

Petition Held Sufficient. —

Father’s claim in termination of parental rights proceeding that the petition to terminate was deficient because the underlying juvenile petition was deficient had to be rejected; the underlying juvenile petition was sufficient to confer jurisdiction on the trial court because it was verified, and the petition to terminate was proper because it was signed and verified. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1, 2007 N.C. App. LEXIS 2447 (2007).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinion below was rendered prior to the enactment of this Chapter.

Foster Parents Have Standing. — Irrespective of their status toward the county department of social services, foster parents have standing pursuant to subdivision (5) of this section to petition for termination of parental rights. See opinion of Attorney General to James W. Swindell, Assistant County Attorney, Durham County, 50 N.C. Op. Att'y Gen. 1 (1980).