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IN RE: J.G.
Appellant-Mother appeals from the trial court's Juvenile Review Order and Juvenile Court Order Initiating Child Custody pursuant to North Carolina General Statute § 7B-911 (Civil Order) terminating juvenile court jurisdiction. In those orders, on appeal here, the district court transferred the case as a civil child custody matter and granted legal and physical custody of the minor child J.G. to his father. Appellant-Mother contends the trial court failed to make the requisite statutory findings of fact to transfer the juvenile case to a Chapter 50 civil child custody matter because: (1) the Civil Order did not state there was no longer a need for continued State intervention to terminate the juvenile court's jurisdiction; (2) the Civil Order did not address prior allegations of domestic violence between the parents; and (3) the Civil Order did not afford the opportunity for mediation. She also alleges that the trial court erroneously ceased all future review hearings without statutory findings. After careful review of the record, we hold that the trial court complied with all statutory requirements for making findings before terminating its jurisdiction, so the transfer to Chapter 50 civil proceedings was proper. We further hold that the trial court's termination of future review hearings was proper. Therefore, we affirm the trial court's orders terminating juvenile court jurisdiction and transferring the case as a civil child custody action.
I. Facts and Procedural History
Appellant-Mother (“Mother”) has two minor children, only one of which is the subject of this matter: J.G., born in September of 2014. Mother and J.G.’s biological father (“Father”) never married, but Father became active in J.G.’s life, as a result of the matter before us. On 5 August 2021, the Wilson County Department of Social Services (“DSS”) received a Child Protective Services (“CPS”) complaint alleging improper care and improper supervision of J.G. Prior to 5 August 2021, three CPS complaints were made against Mother within three months’ time, each alleging neglect of J.G.
During DSS’ investigation for the fourth CPS complaint received 5 August 2021, Mother failed to cooperate with DSS. Mother refused to allow DSS to enter her home or speak to J.G. to verify his well-being. Mother also refused to provide Father's identifying information due to her stated concerns of domestic violence in their prior relationship. As a result, DSS filed an obstruction petition, and a hearing was held on or about 11 August 2021. At the hearing, Mother agreed to cooperate with DSS regarding the CPS investigation. However, on 2 September 2021, DSS filed a juvenile neglect petition to remove J.G. from Mother's care because she continued to evade the CPS investigation and refused to allow DSS to assess her home or interview J.G. DSS was able to make contact with Father and assessed his home as a possible placement and conducted the necessary background checks to confirm his suitability.
On 22 September 2021, the trial court held a pre-adjudication hearing and heard evidence that Mother continued to be uncooperative with DSS regarding the CPS investigation and refused to allow DSS to assess her home to ensure J.G.’s safety. Mother was not present for this hearing. Additional concerns were raised during this time: DSS communicated to the court that it received information that J.G. did not have sufficient food in the home and that he was not regularly attending school. The trial court concluded it was in J.G.’s best interest to be removed from Mother's care and placed in Father's care, granting legal and physical custody of J.G. to Father, pending further orders of the court.
On 17 November 2021, the trial court held an adjudication hearing and heard evidence regarding the 2 September 2022 petition filed by DSS. The DSS worker assigned for the CPS investigation also testified at this hearing. Although she sent a letter to the court expressing her frustrations with the case, Mother was not present for this hearing. Mother continued to be uncooperative with DSS and all efforts towards reunification with J.G. Father was present at the adjudication hearing, received a copy of the petition and asked that J.G. remain in his care. Although the court acknowledged that at some point years ago, there had been alleged domestic violence between Mother and Father in the past, the court found J.G. had been doing well in Father's care.
On 12 December 2021, the court entered an Adjudication Disposition Order, adjudicating J.G. as neglected and ordered that legal and physical custody of J.G. remain with Father. This order set a review date for permanency planning pursuant to Section 7B-906.1 for 16 February 2022.
Prior to the 16 February 2022 hearing, Mother told the court via telephone that she did not like elevators, was claustrophobic, and had difficulty with stairs because of her use of a wheelchair, so the court held the 16 February 2022 hearing in the basement next to the wheelchair ramp to accommodate her. Despite accommodations, Mother was again not present for the juvenile review hearing. Father appeared at this hearing and provided testimony that Mother had not seen or spoken to J.G. since 6 October 2021. The court accepted both DSS and the Guardian Ad Litem (“GAL”) recommendations for custody of J.G. to remain with Father, to which Mother's trial counsel made an objection. Mother's trial counsel stated “[Mother] would like to have it on the record that she objects.” Mother's trial counsel had no explanation as to why Mother was not present for the hearing but wanted to note her objection for the record to “CYA.”
On 22 March 2022, following the 16 February review hearing, two orders were entered by the court: the “Juvenile Review Order” and the “Juvenile Court Order Initiating Child Custody.” In the Juvenile Review Order, the trial court made the following pertinent findings:
4. On or about 5 August 2021, DSS received a CPS complaint alleging Neglect due to Improper Care and Improper Supervision of J.G., and the family received four CPS complaints within three months.
5. Following the 5 August 2021 CPS complaint, Mother failed to cooperate with the CPS investigation and refused to allow DSS to assess her home or interview J.G. As a result, an Obstruction Petition had to be filed to order Mother to comply with the CPS investigation. Despite Mother appearing at the hearing for the Obstruction Petition and agreeing to comply with the CPS investigation, Mother continued to be uncooperative. Consequently, J.G. was placed with Father on 22 September 2021, and remained with him since that time. J.G. was adjudicated neglected on or about 17 November 2021.
6. Mother failed to show for a Child and Family Team (“CFT”) meeting initially scheduled for 4 November 2021, but did appear at the 9 November 2021 CFT meeting and stated she was fine with J.G. staying with Father, and that she will not develop a plan with DSS, she will make her own plan, and that she would not be forced to work with DSS.
7. Since the CFT meeting, Mother continued to be uncooperative with DSS and all efforts towards reunification with J.G. Mother ignored DSS phone calls, refused to respond to attempted home visits and letters left at her residence. Mother informed DSS she no longer resided in North Carolina and was not returning to the state; refused to give DSS her current location and whereabouts; and stated she will never visit J.G. as long as he resides with Father.
10. At this time, returning J.G. to Mother's home would be contrary to his health and safety. Mother has failed to allow DSS to assess her home and potential safety issues; she has failed to consistently meet J.G.’s daily needs and failed to work with DSS to address the safety concerns that led to the Court ordering J.G. to be placed with Father.
11. This is the first permanency planning hearing, and DSS has been working towards reunification. Reasonable efforts by DSS towards reunification included CFT meetings, home visits (and attempted home visits) with the parents; assessment of ongoing services, and collateral contacts with J.G. monthly.
12. Mother is in a wheelchair and has physical limitations due to injuries from a car accident. There are concerns regarding Mother's ability to care for and appropriately meet J.G.’s needs, including but not limited to mental health and physical health, educational needs, and maintaining a clean and safe living environment. Mother's current housing arrangements are unknown, as she has not maintained communication with DSS regarding where she currently resides.
13. DSS previously provided Mother with resources to assist her family, but she has failed to follow through with mental health services and parenting classes for assistance. There are concerns regarding Mother's failure to maintain a clean and safe living environment for J.G., and her failure to utilize available resources to assist her if she is unable to do so on her own. Mother's failure to work with DSS towards any services to address the needs of J.G. presents a barrier to reunification with her child.
14. Father has appropriate housing for J.G., Father consistently maintains communication with DSS. Father and his long-term girlfriend who J.G. refers to as “Maw,” recognize that J.G. may have adjustment issues regarding visitation or communication with Mother, and they are working towards providing therapeutic support. There is no longer a need for ․ [DSS] or this court to remain involved with the family, as Father is ready, willing, and able to continue to provide proper care and supervision for his child.
15. DSS has been attempting to work with Mother since August 2021. She has consistently demonstrated her unwillingness to maintain communication with DSS or allow DSS to gain access to her home to assess it for safety and her ability to meet the needs of J.G. Mother has stated she has no intentions of visiting J.G. if he remains in Father's care and she has no intentions of working a plan with DSS to be reunited with her son.
16. Mother will have supervised visits with J.G.; however, Mother has not visited J.G. since on or about 23 October 2021. Prior to Mother stopping visits with her son, she arrived substantially late and openly argued and used profane language towards her mother in front of J.G., and was left alone with him unsupervised due to her mother leaving the visit.
18. Mother will have the ability to have supervised visits, a minimum of once per month on Saturday or Sunday for a minimum of two hours per visit. Mother will meet at Sharpsburg Police Department in Rocky Mount, NC (or agreed-up location by the two parties) to drop off and pick-up of J.G. Mother must call and confirm visits 48 hours before the scheduled visitation, and if Mother does not confirm her visit, said visit will not occur. All visits must be supervised by an adult approved by Father.
Based on these findings, the trial court concluded as a matter of law:
a) [J.G.’s] continuation in ․ [Father's] home would not be contrary to ․ [J.G.’s] best interest, and that placement in the home of Mother would be contrary to ․ [J.G.’s] best interest, safety, and welfare; reasonable efforts have been made by DSS to prevent the need for placement of ․ [J.G.] outside of a parent's home;
b) It is in the best interest of ․ [J.G.] that custody of ․ [J.G.] should be as set forth in the orders hereafter; and
c) DSS shall be relieved of reunification efforts, as permanency has been achieved with ․ [Father].
As a result of the findings, conclusions, and orders set forth herein, the court will terminate this court's jurisdiction in this Juvenile proceeding. The court will enter a separate civil custody order with appropriate findings and conclusions of law regarding custody of ․ [J.G.] and said order shall be filed in any pending custody action under Chapter 50. This order will constitute a final order on custody review in this Juvenile case as the court is also entering, simultaneously with the entry of this order, a separate order with regards to modification of custody in a pending Chapter 50 Civil action or the initiation of a Civil action in custody of the Juvenile.
Accordingly, the court ordered sole legal and physical custody of J.G. to Father. The court relieved DSS of efforts to reunify J.G. with Mother, as permanency had been achieved with Father by custody remaining with Father. The court closed the juvenile case, terminated the juvenile court's jurisdiction, and a separate Chapter 50 order was entered for a civil child custody action.
The same day, the trial court entered its Chapter 50 Civil Order labeled “Juvenile Court Order Initiating Or Modifying Civil Custody Order (GS 7B-911).” In the Civil Order, the trial court made the following relevant Findings under Chapter 50 similar to its Juvenile Review Order:
On or about September 2021, the Juvenile Court ordered custody of [J.G.] to ․ [Father] and [J.G.] has remained in ․ [Father's] care since that time. [J.G.’s] placement is appropriate and is working well.
[Father] and his significant other [․] are responsible for supervising ․ [J.G.] and assuring his well-being needs are being met ․ [J.G.] would like to continue to live with ․ [Father], brother, and ․ [Father's] girlfriend, as he feels safe ․ inside ․ [Father's] home.
․ [J.G.] should remain in this placement where he is safe and appropriately cared for and his basic and well-being needs are met. It is not in the best interest of ․ [J.G.] to be in the legal custody of ․ [Mother]. [Mother] has not demonstrated her ability to provide a safe and stable environment for ․ [J.G.], and the return of ․ [J.G.] to ․ [Mother] would be contrary to the child's health and safety ․ [J.G.] needs stability and a safe home, and ․ [Mother] is not in a position to provide for ․ [J.G.] at this time.
For the reasons also articulated in the Juvenile Review Order, this order transferred the matter to a more standard child custody proceedings consistent with Chapter 50 of North Carolina General Statutes. The court ordered sole legal and physical custody of J.G. to Father and granted Mother scheduled supervised visits with J.G. consistent with its findings in the Juvenile Review Order. Mother and Father were “designated as parties, and the civil filing fee was waived.”
Mother timely filed written Notice of Appeal from both the Juvenile Review Order and Civil Order on 13 June 2022.
II. Standard of Review
This Court reviews de novo a trial court's orders for compliance with statutory mandates. In re S.M.L., 272 N.C. App. 499, 517, 846 S.E.2d 790, 802 (2020). While the trial court considers whether there is clear, cogent, and convincing evidence to support the findings of fact, this Court may not reweigh the evidence in making the determination of whether the findings are supported. In re I.K., 377 N.C. 417, 426, 858 S.E.2d 607, 613 (2021). The trial court's findings of fact are conclusive on appeal when supported by competent evidence, even if that evidence could sustain contrary findings. In re L.T.R., 181 N.C. App. 376, 381, 639 S.E.2d 122, 125 (2007) (internal quotations and citations omitted).
A. Termination of Juvenile Court Jurisdiction
Article 9 of Chapter 7B (Juvenile Code) of the North Carolina General Statutes governs disposition of child abuse, neglect, and dependency proceedings. N.C. Gen. Stat. §§ 7B-900 et seq. (2021). Section 7B-201 sets forth retention and termination of a juvenile court's jurisdiction. N.C. Gen. Stat. § 7B-201(a)-(b) (2021). Subsection 7B-201(a) provides, “When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first.” N.C. Gen. Stat. § 7B-201(a). The juvenile court's jurisdiction may terminate “automatically or by court order.” N.C. Gen. Stat. § 7B-201(b). “Termination of the court's jurisdiction in an abuse, neglect, or dependency proceeding, however, shall not affect ․ [a] civil custody order entered pursuant to G.S. 7B-911.” N.C. Gen. Stat. § 7B-201(b)(1) (emphasis added).
B. Transfer To Chapter 50 Civil Child Custody Matter
Although a case may originate under Chapter 7B as a juvenile abuse or neglect matter, there may come a time when DSS intervention is no longer needed, “and the case becomes a custody dispute between private parties which is properly handled pursuant to the provisions of Chapter 50.” Sherrick v. Sherrick, 209 N.C. App. 166, 169, 704 S.E.2d 314, 317 (2011). Two orders are often used by trial courts for termination of juvenile court jurisdiction and transfer of the case as a civil child custody matter. Id. at 171, 704 S.E.2d at 318. A trial court's order which “terminates juvenile court jurisdiction and serves as the ‘civil order’ under Chapter 50 ․ must include the proper findings of fact and conclusions of law required for each component of the order.” Id. at 172, 704 S.E.2d at 319 (citations omitted).
Juvenile courts “may enter one order for placement in both the juvenile file and the civil file as long as the order is sufficient to support termination of juvenile court jurisdiction and modification of custody.” In re A.S., 182 N.C. App. 139, 142, 641 S.E.2d 400, 403 (2007). Disposition orders entered after “abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing.” In re E.P.-L.M., 272 N.C. App. 585, 599, 847 S.E.2d 427, 438 (2020) (citations omitted). When a disposition order and civil custody ordered are both entered pursuant to 7B-911, the absence of the finding that “there is no longer a need for continued State intervention” in the Section 7B-911 order, is immaterial, when the disposition order contains “the requisite language to transfer the matter from juvenile court to a private civil proceeding.” Id.
In this case, Mother first argues that the juvenile court improperly terminated its jurisdiction because the Civil Order failed to make findings of fact required under Section 7B-911(c). Specifically, Mother contends the trial court failed to make a finding that there was no longer the “need for continued State intervention,” or any similar language. We disagree. Section 7B-911 sets forth the requirements juvenile courts must follow to terminate its jurisdiction and transfer a case as a civil child custody action. N.C. Gen. Stat. § 7B-911. Section 7B-911 provides, in pertinent part:
(a) Upon placing custody with a parent or other appropriate person, the court shall determine whether or not jurisdiction in the juvenile proceeding should be terminated and custody of the juvenile awarded to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.
(b) When the court enters a custody order under this section ․ if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody ․ [i]f the court's order initiates a civil action, the court shall designate the parties to the action and determine the most appropriate caption for the case. The civil filing fee is waived ․ [t]he order shall constitute a custody determination, and any motion to enforce or modify the custody order shall be filed in the newly created civil action in accordance with the provisions of Chapter 50 of the General Statutes.
(c) When entering an order under this section, the court shall satisfy the following:
(1) Make findings and conclusions that support the entry of a custody order in an action under Chapter 50 of the General Statutes ․
(2) Make the following findings:
a. There is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding.
b. At least six months have passed since the court made a determination that the juvenile's placement with the person to whom the court is awarding custody is the permanent plan for the juvenile, though this finding is not required if the court is awarding custody to a parent or to a person with whom the child was living when the juvenile petition was filed.
N.C. Gen. Stat. § 7B-911 (emphasis added).
Here, the trial court's Juvenile Review Order properly terminated the juvenile court's jurisdiction because it made all the statutorily required findings pursuant to Subsections 7B-911. Our review of the record shows the trial court's dispositional Juvenile Review Order and Civil Order were both signed simultaneously on 22 March 2022, and properly terminated juvenile court's jurisdiction. Paragraph 14 of the Juvenile Review Order indicates the following findings: “There is no longer a need for the Department or this court to remain involved with the family, as ․ [Father] is ready, willing, and able to continue to provide proper care and supervision for his child.” As Mother correctly points out in her brief, it is possible for a Chapter 50 civil order to meet the statutory requirements of Subsection 7B-911(c)(2)(a), without the exact phrase “the need for continued State intervention.” In re A.S. at 144, 641 S.E.2d at 403-404. Thus, despite her arguments to the contrary, the language in the trial court's findings satisfies what the statute demands be found before termination of juvenile court jurisdiction and transfer under 7B-911. N.C. Gen. Stat. § 7B-911 (a)-(c).
Next, Mother argues the trial court failed to include findings of fact regarding relevant domestic violence issues under Subsections 50-13.2(a) and (b). Subsection 50-13.2(a) provides, in relevant part:
(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person ․ [that] will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party. An order for custody must include written findings of fact that reflect the consideration of each of these factors and that support the determination of what is in the best interest of the child ․
N.C. Gen. Stat. § 50-13.2(a) (2021) (emphasis added).
Subsection 50-13.2(b) requires orders to include terms which “best promote the interest and welfare of the child,” regarding custody and visitation. N.C. Gen. Stat. § 50-13.2(b) (2021). “If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence, in accordance with the provisions of G.S. 50B-3.” Id. (emphasis added).
Here, the record does not reflect that the court was presented any evidence, by Mother or any other party, on these alleged domestic violence incidents, and the court made no findings that domestic violence was a current issue for the parties. Instead, at the adjudication hearing on 17 November 2021, the court found J.G. was doing well in Father's care despite the parents’ alleged history of domestic violence from six years prior. On this record, no further incidents or allegations relating to any domestic violence more recently appear. Therefore, the record reflects that the trial court made the requisite statutory findings for its transfer of the case pursuant to Section 50-13.2. N.C. Gen. Stat. § 50-13.2(a) and (b).
Mother further argues that the Chapter 50 mediation requirement was applicable to the parties because she contested the custody order. The mediation provisions set out for custody matters in N.C. Gen. Stat. § 50-13.1(a)-(c) provides, in relevant part:
(a) Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided․
(b) Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter ․ shall be set for mediation of the unresolved issues as to custody and visitation ․ unless the court waives mediation pursuant to subsection (c).
(c) For good cause, on the motion of either party or on the court's own motion, the court may waive ․ mediation.
N.C. Gen. Stat. § 50-13.1 (emphasis added). Mother contends the trial court was required to make findings for the court to waive mediation for good cause. N.C. Gen. Stat. § 50-13.1(a)-(c) (2021).
We address the issue of whether custody or visitation was actually contested in this case, as mediation is only required “[w]henever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child.” Id. (emphasis added). While the record below does not directly state whether the trial court considered custody or visitation contested, we note that our Supreme Court “has long recognized that the ‘presumption of regularity’ attaches generally to judicial acts.” Matter of E.D.H., 381 N.C. 395, 399, 873 S.E.2d 510, 514 (2022). Mother bears the burden of rebutting this presumption, id., and must show that the trial court was adequately put on notice that she was contesting custody or visitation such that mediation was necessary.
We do not believe that Mother has met this burden based on the record below. First, Mother did not submit any pleadings or motions contesting the placement or requesting custody for herself. Second, Mother did not attend the hearing, even after the trial court relocated the hearing to make it accessible to her. Third, the social worker testified, without cross-examination or introduction of rebuttal evidence, that Mother appeared at the CFT meeting on 9 November 2021, stated she was fine with J.G. residing with Father, and that she would not visit him as long as he resided in Father's care. Fourth, the social worker further testified that Mother entirely declined to cooperate with DSS and announced her plans to permanently leave the state after temporary custody was given to Father; again, Mother offered no evidence to the contrary.
Finally, while Mother's counsel did lodge an objection at the conclusion of the hearing, asserting that “my client has been upset about the placement of the child,” he did not elucidate a specific legal basis for that objection and later characterized it as a “CYA” objection in light of the lack of appearance by his client. Counsel's generalized objection, made without his client's presence or knowledge as to whether she presently intended to contest custody or visitation, is not equivalent to allegations in a pleading or motion, let alone evidence rebutting the social worker's testimony. See, e.g., State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193 (1996) (“[I]t is axiomatic that the arguments of counsel are not evidence.”).
Given that Mother never contested visitation or custody through formal allegations, testimony, or participation in the hearing—and all the evidence shows she was “fine” without visitation or custody—we decline to hold that it necessarily “appear[ed] to the court, from the pleadings or otherwise, that [the] action involve[d] a contested issue as to the custody or visitation of a minor child” such that mediation was statutorily required. N.C. Gen. Stat. § 50-13.1.
C. Termination of Future Review Hearings
On Mother's last issue on appeal, we disagree that the trial court erred when it ceased all future permanency planning hearings pursuant to Section 7B-906.1(n).
Under Section 7B-906.1, review and permanency planning hearings are only required if the juvenile court retained jurisdiction, and here, the juvenile court terminated its jurisdiction pursuant to 7B-201(b) and transferred the matter as a 7B-911 civil child custody action. N.C. Gen. Stat. §§ 7B-201(b) and 7B-911. In addition, the provisions set out under Subsection 7B-911(c)(2)(b) provide that the need for review or permanency planning findings are “not required if the court is awarding custody to a parent.” N.C. Gen. Stat. § 7B-911(c)(2)(b). Although the case originated as a Chapter 7B neglect proceeding, after permanency was established with Father and the court determined that there was no continuing need for DSS intervention, the matter became a custody dispute between private parties. Sherrick at 169, 704 S.E.2d at 317. For these reasons, Section “7B–911(b) requires that the juvenile court enter a permanent order prior to termination of its jurisdiction.” Id.
Here, supported by competent evidence in its findings, the court stated in the Juvenile Review Order: “DSS shall be relieved of reunification efforts, as permanency has been achieved with ․ [Father] ․ the court will terminate this court's jurisdiction in this Juvenile proceeding [and] enter a separate civil custody order ․ and said order shall be filed in ․ [a] custody action under Chapter 50. This order will constitute a final order on custody review.” This left any and all future issues regarding custody or visitation that might arise to be decided in a civil custody action pursuant to Chapter 50. Therefore, the trial court was not required to hold any future review or permanency planning hearings when Father was granted custody.
For the foregoing reasons, we affirm the 2022 Juvenile Review Order and Juvenile Court Order Initiating Child Custody by the trial court.
Report per Rule 30(e).
Judges MURPHY and CARPENTER concur.
Response sent, thank you
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Docket No: No. COA22-467
Decided: April 18, 2023
Court: Court of Appeals of North Carolina.
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