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suggesting the trial court did not have jurisdiction because the affidavit was not filed until six months after the termination order was entered by the trial court
Summary of this case from In re G.T.BOpinion
No. COA05-1268.
Filed June 20, 2006.
Child Abuse and Neglect — permanency planning order — not final — appeal interlocutory
A permanency planning order for a neglected and dependent juvenile directing DSS to pursue adoption after the death of the mother was not a final order as set forth in N.C.G.S. § 7B-1001, and the father's appeal was dismissed as interlocutory.
Judge WYNN dissenting.
Appeal by respondent from order entered 25 May 2005 by Judge David A. Leech in Pitt County District Court. Heard in the Court of Appeals 11 April 2006.
Anthony Hal Morris, for petitioner-appellee Pitt County Department of Social Services. Annick Lenoir-Peek, for respondent-appellant. Nancy Ray, for Guardian ad Litem.
Respondent-father purports to appeal from a permanency planning order entered pursuant to the requirements set forth in N.C. Gen. Stat. § 7B-906. The order on appeal does not constitute a final order, and this appeal must therefore be dismissed.
In April 2003, the Pitt County Department of Social Services (DSS) filed a petition alleging that A.R.G. was a neglected and dependent juvenile. In September 2003, the trial court adjudicated the child to be neglected and dependent; awarded custody to DSS; and ordered a goal of reunification with the mother. The trial court entered custody review orders on 26 November 2003, 26 January 2004, and 28 June 2004, under which custody with DSS and the goal of reunification with the mother remained the same. On 14 September 2004, the trial court entered an order allowing DSS to "pursue permanency" for A.R.G. with another family. On 2 November 2004, the mother died as a result of an automobile accident. Following a permanency planning hearing, the trial court entered an order on 25 May 2005, concluding that was in the child's best interest for DSS to pursue adoption with the current foster family and to initiate termination of respondent's parental rights. In this order, the trial court found, inter alia, that father was unaware of A.R.G.'s foster residence; had sent no letters or cards to A.R.G.; first contacted the assigned social worker for A.R.G. in October, 2004; and "advocated that the permanent plan be placement of his son with his mother[.]"
The record demonstrates that father attended four hearings, as follows:
May 08, 2003 Matter Continued Father appeared May 21, 2003 Matter Continued Did not appear July 16, 2003 Matter Continued Did not appear July 31, 2003 Adjudication Hearing Did not appear October 23, 2003 7B-906 Hearing Did not appear December 4, 2003 7B-906 Hearing Did not appear March 4, 2004 7B-906 Hearing Did not appear June 3, 2004 Matter Continued Did not appear June 24, 2004 Matter Continued Did not appear July 29, 2004 Matter Continued Did not appear September 2, 2004 Matter Continued Did not appear August 12, 2004 7B-906 Hearing Did not appear October 24, 2004 Matter Continued Did not appear November 2, 2004 Mother died November 4, 2004 Matter Continued Father appeared January 13, 2005 Matter Continued Father appeared Feb. 24/May 05, 2005 7B-906 Hearing Father appeared N.C. Gen. Stat. § 7B-1001 (2003), provides that appeal may be taken from "any final order of the court in a juvenile matter[.]" The statute defines a "final order", and states that it includes:
(1) Any order finding absence of jurisdiction;
(2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;
(3) Any order of disposition after an adjudication that a juvenile is abused, neglected, or dependent; or
(4) Any order modifying custodial rights.
N.C. Gen. Stat. § 7B-1001 (2003).
This statute was amended effective October 1, 2005. We apply the version of G.S. § 7B-1001 in effect at the time the order on appeal was entered.
In In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003), this Court concluded that the permanency planning order on appeal constituted a "disposition order" within the meaning of Section (3) of G.S. § 7B-1001 and was therefore appealable. In Weiler, the permanency planning orderchanged the permanent plan "as to mother" from reunification to adoption:
The present order again changed the disposition from reunification with the mother to termination of parental rights. An order that changes the permanency plan in this manner is a dispositional order that fits squarely within the statutory language of section 7B-1001. . . . Thus, the appeal is properly before us and petitioner's motion to dismiss is denied.
Id. at 477, 581 S.E.2d at 136-37.
This Court recently discussed what constitutes a "final" juvenile order, and held that "the statutory language of G.S. § 7B-1001(3), referring to an 'order of disposition after an adjudication that a juvenile is abused, neglected, or dependent', means the dispositional order that is entered after an adjudication [of abuse, neglect or dependency] under G.S. § 7B-905, and does not mean every permanency planning, review, or other type of order entered at some unspecified point following such a disposition." In re B.N.H., 170 N.C. App. 157, 160, 611 S.E.2d 888, 890, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005). B.N.H. further held that this Court would "limit the holding of Weiler to the specific facts of that case, and decline[d] to extend its reasoning further." Id. at 162, 611 S.E.2d at 891.
In the instant case, A.R.G. was not residing with father at the time he was removed from the custody of mother, and nothing in the record suggests reunification with father was ever the permanent plan. Every order in the record shows, instead, that the court's focus was consistently related to the viability of returning the juvenile to mother and to the specific requirements placed on her to assist in reunification efforts. The court's orders reflect that father had very little contact or involvement with this juvenile following the juvenile's removal from mother's home. Not one court order in the record either allows, encourages, or describes any type of visitation between father and A.R.G. The fact that no type of "reunification" with father was ever a permanent plan is sufficient, in and of itself, to distinguish this appeal from Weiler, where the permanent plan as to the mother waschanged from reunification to adoption. We nevertheless also observe that, in the G.S. § 7B-906 review order next-preceding the order on appeal, DSS was expressly authorized by the juvenile court to "pursue permanency." Consequently, not only was reunification with father never the plan to begin with — something that would preclude interlocutory appellate review of the subject order under B.N.H., but there also had not been any change in the permanent plan from reunification to adoption — something essential to this Court's review of a permanency planning order in Weiler. In short, none of the provisions of G.S. § 7B-1001(1)-(4) apply, and the order on appeal is not a final order for purposes of appeal.
We easily conclude that both the statutory definition of a "final order" set forth in G.S. § 7B-1001, and also our holding in B.N.H. requires this Court to dismiss the subject appeal. Father's interlocutory appeal, taken without noting the grounds for appellate review or making a substantial right argument in his brief, illustrates the long delays meant to be avoided by the operation of G.S. § 7B-1001. Father did not have any type of court-sanctioned visitation with A.R.G. before the entry of the order on appeal, and there has never been any goal of reunification of A.R.G. with father. Under these circumstances, and at this juncture of this juvenile proceeding, this interlocutory appeal has done nothing to further the interests of the juvenile or the father.
Dismissed.
Judge ELMORE concurs.
Judge WYNN dissents in a separate opinion.