Opinion
No. COA10-42
Filed 1 June 2010 This case not for publication
Appeal by respondent from order entered 3 November 2009 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 10 May 2010.
Gail E. Carelli, for New Hanover County Department of Social Services, petitioner-appellee. Hunton and Williams LLP, by Stacie C. Knight, for Guardian ad Litem. Lisa Skinner Lefler, for respondent-appellant mother.
New Hanover County No. 09 JA 76.
Respondent-mother appeals from the trial court's review order which granted custody of the minor child, J.D.W-S., to respondent-father. For the reasons set forth below, we affirm the trial court's order.
On 16 January 2009, Durham County Department of Social Services ("Durham County DSS") filed a juvenile petition alleging that J.D.W-S. was a dependent and neglected juvenile. In relevant part, the petition alleged:
a. The child is dependent and in need of assistance or placement whose parents are unable to provide proper care or supervision.
b. The child is neglected in that he is not receiving proper care or supervision.
c. The child's father has had marginal involvement in his care and has not demonstrated an ability to care for the child or an interest to care for the child.
d. The mother is unstable in her housing. She has frequent moves and she is at times homeless.
e. The mother at times is very inattentive when she is caring for the child. As an infant, the child suffered a fractured skull while in the mother's care. A year ago, the child suffered a broken arm due to a failure of supervision by the mother.
f. In early August, 2008, the child suffered second degree sunburn while in the care of his mother. At the time the child suffered the second degree burns, the mother and the child were living in a homeless shelter.
Durham County DSS also sought non-secure custody of the child. The trial court granted non-secure custody to Durham County DSS and placed the child in the care of his maternal grandmother.
Prior to the filing of the juvenile petition, respondent-mother and J.D.W-S. moved to New Hanover County. On 21 January 2009, respondent-mother's attorney filed a motion in Durham County District Court requesting that venue be changed to New Hanover County.
On 4 March 2009, an order was entered in Durham County District Court adjudicating the minor child to be a dependent juvenile. The order also changed venue to New Hanover County and terminated the case in Durham County. Thereafter, the New Hanover County Department of Social Services ("New Hanover County DSS") began monitoring the family. On 1 April 2009, New Hanover County DSS filed a motion for review based upon a substantial change of circumstances. The motion alleged that on or about 21 March 2009, respondent-mother's boyfriend had perpetrated an act of domestic violence against her. Apparently, respondent-mother was financially dependent upon her boyfriend, and it was alleged that she refused to separate from him. New Hanover County DSS had a pending placement of the child with his paternal aunt and uncle in another county.
On 11 June 2009, the trial court conducted a hearing upon a motion for review. The trial court granted legal custody and placement responsibility to New Hanover County DSS, and placement of the child was continued with the paternal aunt and uncle. New Hanover County DSS was ordered to provide assistance with establishing and facilitating respondent-mother's visitation with the child. Respondent-mother was further ordered to continue individual counseling and to seek counseling with her boyfriend to the extent that they maintained their relationship. Respondent-mother also was ordered to attend parenting classes and to obtain stable employment and housing.
On 3 September 2009, the trial court conducted a review hearing. At the time of the hearing, respondent-father had graduated from college and was living with his mother while seeking full-time employment. Respondent-father had completed parenting classes, researched day care options for the child, and had followed up with Wake County Department of Social Services regarding therapeutic intervention for the child. The trial court found that New Hanover County DSS had made reasonable efforts to prevent the need for placement of the child by supporting his placement with relatives. The trial court also found that respondent-father was a fit and proper person to have custody and control of his son and that it was in the child's best interest for his father to have custody. The trial court ordered full legal and physical custody of the child to be with respondent-father. The guardian ad litem, the attorney advocate, and respondent's court-appointed counsel all were released. Respondent-mother was granted unsupervised visitation every other weekend, contingent upon her not allowing contact between the child and her boyfriend. Respondent-mother also was required to obtain and maintain stable housing and employment, and to participate in individual therapy and community support services. The trial court terminated its jurisdiction. From the trial court's order, respondent-mother appeals.
Respondent-mother argues that it was error for the trial court to grant custody to respondent-father and terminate its jurisdiction over the case without establishing a civil custody action pursuant to North Carolina General Statutes, section 7B-911. Respondent-mother contends the trial court failed to comply with a mandatory provision of section 7B-911. We disagree.
Section 7B-911 provides in relevant part:
(a) After making proper findings at a dispositional hearing or any subsequent hearing, the court on its own motion or the motion of a party may award custody of the juvenile to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7, as provided in this section, and terminate the court's jurisdiction in the juvenile proceeding.
(b) When the court enters a custody order under this section, the court shall either cause the order to be filed in an existing civil action relating to the custody of the juvenile or, if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody.
N.C. Gen. Stat. § 7B-911(a), (b) (2009).
It is clear from the plain language of section 7B-911 that the trial court is not required to enter a civil custody order when it orders custody of the juvenile to be with a parent and terminates its jurisdiction over the juvenile proceeding. Section 7B-911 merely grants the trial court the authority to do so and establishes the procedures the trial court must follow if the court does so. Furthermore, we previously have explained that "section 7B-911 governs `[c]ivil child-custody order[s]' and the transfer of Chapter 7B juvenile cases to Chapter 50." In re J.B., ___ N.C. App. ___, ___, 677 S.E.2d 532, 534 (2009) (citing N.C. Gen. Stat. § 7B-911 (2007)). In the case sub judice, the trial court's "Order on Review" did not transfer the matter from Chapter 7B to Chapter 50 of our General Statutes. The order at issue is not a civil custody order; rather, it is a review order entered pursuant to North Carolina General Statutes, section 7B-906. Accordingly, we conclude that North Carolina General Statutes, section 7B-911 is inapplicable to the present case and respondent-mother's reliance upon section 7B-911 is misplaced.
Section 7B-906 authorizes the trial court "to place the juvenile in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interests of the juvenile." N.C. Gen. Stat. § 7B-906(d) (2009). When the trial court restores custody to a parent, "the court shall be relieved of the duty to conduct periodic judicial reviews of the placement." Id. Therefore, the trial court is permitted to terminate its jurisdiction over a juvenile case when it restores custody of the juvenile to a parent. See In re H.S.F., 177 N.C. App. 193, 199, 628 S.E.2d 416, 420 (2006) (citing In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984) (holding the trial court may, but is not required to, terminate its jurisdiction over a juvenile case where the trial court restores custody of the juvenile to a parent)), disc. rev. denied, 360 N.C. 534, 633 S.E.2d 817 (2006).
Here, the trial court found respondent-father to be a fit and proper person to exercise custody and control of his son. The trial court further found that placing the child in his father's custody will serve the child's best interest and welfare. We therefore conclude that the trial court did not err in awarding custody to respondent-father and terminating its jurisdiction over this case.
Respondent-mother also argues that she has been left in a "no man's land," "with no means of enforcing the visitation ordered by the court or litigating future issues." This is simply not true. The parents have returned to the same status they held prior to the filing of the juvenile petition in this matter. Either parent, if they so desire, may pursue custody and visitation rights in a civil action filed in a court of competent jurisdiction. See In re A.P., 179 N.C. App. 425, 429, 634 S.E.2d 561, 563 (2006) (Levinson, J., dissenting), rev'd for reasons stated in dissenting opinion, 361 N.C. 344, 643 S.E.2d 588 (2007) (per curiam).
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30 (e).