In re J.K.

• Decision Date: 18 April 2017
• Docket Number: No. COA16-823,COA16-823
• Court: North Carolina Court of Appeals
• Parties: In the MATTER OF: J.K.

253 N.C.App. 57

799 S.E.2d 439

In the MATTER OF: J.K.

No. COA16-823

Court of Appeals of North Carolina.

Filed: April 18, 2017

Christopher L. Carr, for petitioner-appellee Cumberland County Department of Social Services and Beth A. Hall, for guardian ad litem.

Robert W. Ewing, Clemmons, for respondent-appellant-mother.

STROUD, Judge.

Respondent-mother appeals from a permanency planning order and a custody order, both entered the same day, both of which grant legal and physical custody of her daughter to respondent-father. We affirm the permanency planning order and remand for correction of a clerical error. We also reverse and remand the custody order since it does not comply with the requirements of North Carolina General Statute § 7B-911 for termination of juvenile court jurisdiction and entry of a civil custody order enforceable and modifiable under North Carolina General Statute Chapter 50. On remand, the trial court should enter a new order in accord with North Carolina General Statute § 7B-911.

I. Background

On 29 September 2014, the Cumberland County Department of Social Services ("DSS") filed a juvenile petition alleging that one-year-old Jennifer¹ was neglected and dependent. According to the petition, DSS received two child protective services referrals in September of 2014. Respondent-mother had a history of problems due to her mental illness, and she failed to take her medication as prescribed. On 28 September 2014, respondent-mother was admitted to Cape Fear Valley Medical Center because she was having auditory and visual hallucinations; this was respondent-mother's second hospital admission in one month due to the same issues. Shortly after her admission to the hospital, respondent-mother tested positive for marijuana. At that time, DSS was unable to locate any suitable relatives to provide temporary care and supervision for Jennifer, so DSS took Jennifer into non-secure custody. On 1 December 2014, the trial court had a hearing regarding the non-secure custody order; the trial court ordered "[t]hat the juvenile shall continue to be placed in the home with the Respondent Father and Paternal Grandmother." ²

On 18 August 2015, the trial court entered an order adjudicating Jennifer dependent.

On 17 February 2016, the trial court held a permanency planning hearing. On 17 May 2016, the trial court entered two orders based upon the 17 February 2016 hearing. First, the trial court entered an order entitled "Permanency Planning Order and Order to Close Juvenile Court Case File" ("Permanency Planning Order"). (Original in all caps.) In the Permanency Planning Order the trial court made findings of fact regarding both respondents’ and the juvenile's circumstances. The trial court also found as follows:

23. That the permanent plan of reunification with the Respondent Father has been achieved.

24. That a termination of parental rights should not be pursued in this matter inasmuch as the permanent plan of reunification has been accomplished.

.... 26. The Court finds that at this time it would be appropriate to return legal and physical custody of the juvenile to the Respondent Father, ..., and that will be the Order of the Court. The Court finds that this will achieve the permanent plan of care for the juvenile and that further Judicial Review hearings are no longer necessary. The Court will allow the Department and Guardian ad Litem to close their respective Juvenile Court case files in this matter[.]

The trial court then ordered "[t]hat legal and physical custody of the juvenile ... shall be returned to the Respondent Father" and "[t]hat the Cumberland County Department of Social Service and the Guardian ad Litem should be allowed to close their Juvenile Court case files[.]" The trial court also released the respondents’ court-appointed counsel and granted visitation to respondent-mother for an hour of visitation supervised by respondent-father every other week at a particular McDonald's restaurant.³

Also on 17 May 2016, the trial court entered another order, entitled simply "ORDER" ("Custody Order").⁴ The brief, two-page Custody Order incorporates the findings from the Permanency Planning Order. The Custody Order includes a conclusion of law that "North Carolina is the home state of the juvenile[ ] and this Court has jurisdiction over the juvenile under the provisions of the Uniform Child Custody Jurisdiction Enforcement Act for the purpose of entering an Order on Custody." The Custody order then grants legal and physical custody of the juvenile to respondent-father and supervised visitation to respondent-mother, just as set forth in the Permanency Planning Order. Respondent-mother filed notice of appeal "from the Review Order changing custody of the above minor child that was filed on May 17, 2016."

II. Standard of Review

Our review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. The trial court's findings of fact are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings. In choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B–906.1 (2013), the juvenile's best interests are paramount. We review a trial court's determination as to the best interest of the child for an abuse of discretion. Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.

Unchallenged findings of fact are deemed to be supported by the evidence and are binding on appeal. Moreover, erroneous findings that are unnecessary to support the trial court's conclusions of law may be disregarded as harmless.

In re A.C. , ––– N.C. App. ––––, ––––, 786 S.E.2d 728, 733 (2016) (citations and quotation marks omitted).

III. Permanency Planning Order

Respondent-mother argues that "the trial court erred in granting ... Jennifer[’]s custody to the respondent father when it concluded that the return of the juvenile to the respondents would be contrary [ ] to the welfare and best interests of the juvenile." (Original in all caps.) Specifically, respondent-mother argues the trial court's conclusions of law in the Permanency Planning Order are contradictory and prevent this Court from adequately determining whether granting respondent-father custody of Jennifer was in her best interests.

Here, the trial court made the following pertinent conclusions of law:

2. No reasonable means were available to protect the juvenile, short of out-of-home placement, because return to the custody of the Respondents would be contrary to the welfare of the juvenile.

3. That the primary permanent plan of reunification with the Respondent Father with a secondary permanent plan of guardianship with the Paternal Grandmother; the Court approves of the permanent plans and the plans are consistent with the juvenile's best interests.

4. That the primary permanent plan has been achieved today.

5. That the Respondent Mother ... is not a fit and proper person for the care, custody and control of the juvenile. That it is in the juvenile's best interests to have supervised visitation with the Respondent Mother.

6. That the Respondent Father ... is a fit and proper person for the care, custody and control of the juvenile.

7. That return of the juvenile to the custody of the Respondents would be contrary to the welfare and best interests of the juvenile.

8. That the juvenile remains in need of more care and supervision than the Respondent Mother can provide for the juvenile at this time.

....

10. That in the best interests of the juvenile, legal and physical custody should be with the Respondent Father....

Respondent-mother argues that the trial court's conclusions are contradictory as conclusions of law 2 and 7 do not support the court's order awarding custody to respondent-father because they conclude that the return of Jennifer's custody to "respondents" was contrary to her welfare and best interests. After careful review of the record, we conclude the references to "the Respondents" instead of "Respondent Mother" in conclusions of law 2 and 7 were clerical errors. See N.C. Gen. Stat. § 1A-1, Rule 60(a) (2015).

Clerical mistakes are "mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission...." Id.

A clerical error is an error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination. When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth.

In re D.B. , 214 N.C.App. 489, 497, 714 S.E.2d 522, 527 (2011) (citations, quotation marks, and brackets omitted).

After conducting the permanency planning hearing on 17 February 2016, the trial court made the following unchallenged findings of fact:

5. That the juvenile has been placed in the home with the Respondent Father since November 16, 2014. That the juvenile is doing very well in the placement.

6. That the Paternal Grandmother is a good support system for the Respondent Father.

7. That the juvenile attends day care five (5) days per week. She interacts well with the other children at the day care center. [Jennifer] is on a schedule[ ] for toilet training. The juvenile is able to speak a few words.

....

9. That the juvenile continues to display self injurious behaviors such as scratching her face and neck as well as grabbing her hair to the point of pulling it out. That Dr. [Smith] at Coastal Carolina Neuropsychiatric Center indicated that [Jennifer]’s behaviors are most likely due to her lacking a stable nurturing environment. That the Respondent Father was provided with techniques to help with the behaviors.

10. That the Respondent Mother is unemployed. She receives disability benefits.

....

12. That the

...