In re JCS

• Decision Date: 04 May 2004
• Docket Number: No. COA03-390.,COA03-390.
• Citation: 595 S.E.2d 155,164 NC App. 96
• Court: North Carolina Court of Appeals
• Parties: In the Matter of J.C.S.; and R.D.S., Two Minor Children.

595 S.E.2d 155

164 NC App. 96

In the Matter of J.C.S.; and R.D.S., Two Minor Children.

No. COA03-390.

Court of Appeals of North Carolina.

May 4, 2004.

J. David Abernethy, Newton, for petitioner-appellee Catawba County Department of Social Services.

M. Victoria Jayne, Hickory, for respondent-appellant.

Crowe & Davis, P.A., by H. Kent Crowe, Conover, as Guardian Ad Litem for the minor children.

ELMORE, Judge.

Penny S. (respondent) appeals from a permanency planning order (permanency planning order), entered in open court 3 December 2002 and filed 28 February 2003, setting a permanent plan of adoption for her minor children J.C.S., born 13 May 1987, and R.D.S., born 19 August 1991. For the reasons set forth herein, we affirm.

The record on appeal reveals that on 16 September 1999, the Catawba County Department of Social Services (DSS) filed a juvenile petition alleging that J.C.S. and R.D.S. were dependent and neglected juveniles within the meaning of N.C. Gen.Stat. §§ 7B-101(9) and (15). On 12 October 1999, respondent stipulated that she periodically left J.C.S. and R.D.S. home alone and unsupervised while she was at work, and respondent consented to the adjudication of the children as neglected and dependent on these grounds. Thereafter, on 7 December 1999 a dispositional order was entered in open court placing legal custody of J.C.S. and R.D.S. with DSS and specifically approving placement in respondent's home, conditioned upon respondent's compliance with the Family Services Case Plan/Service Agreement and the trial court's orders that respondent continue treatment with Mental Health Services, maintain stable housing and employment, and make appropriate child care arrangements. Shortly thereafter, in December 1999, respondent was charged with driving while impaired while R.D.S. and another child were with her in the car.

At some point prior to a review hearing held 1 February 2000, J.C.S. and R.D.S. began to reside with their maternal grandmother, where they remained until being placed in foster care on 7 June 2000. At the 7 November 2000 permanency planning review hearing, the trial court continued placement in foster care and set a permanent plan of reunification with respondent for both children. At the 27 February 2001 permanency planning review hearing, the trial court found that respondent was taking prescription medication for nerves, insomnia, headaches, and manic-depressive symptoms, and that "a slow transition of the minor children back into [respondent's] home is in the children's best interest," and again continued the children's foster care placement.

Following a permanency planning review hearing on 22 May 2001, physical custody of J.C.S. and R.D.S. was returned to respondent on a trial basis, despite the trial court's finding that respondent "continues to struggle with appropriate decisions affecting the lives of the minor children and her life[.]" This trial placement was continued through permanency planning review hearings held on 17 July 2001, 6 November 2001, and 26 February 2002. During this period of time, respondent completed a substance abuse assessment, Intensive Outpatient Treatment Services and the After Care Program, a DWI assessment, the Nurturing Program, and the Women at Risk Program, and continued in family therapy. Evidence was presented at the 26 February 2002 review hearing that J.C.S., then 14, had an older boyfriend who helped respondent pay the family's bills, and that respondent encouraged this relationship. Following the 26 February 2002 review hearing, respondent revealed that J.C.S. was pregnant. J.C.S. subsequently gave birth to twins prematurely in March 2002. Following the 23 April 2002 review hearing, the trial court found that J.C.S.'s babies were fathered by a 21-year-old illegal immigrant whom respondent had allowed to spend the night in her home with J.C.S., and ordered that the trial placement with respondent end immediately and that J.C.S. and R.D.S. be returned to foster care.

Following the 16 July 2002 permanency planning review hearing, the trial court found that J.C.S. and R.D.S. were doing very well in their foster home placements; that J.C.S. was doing a very good job caring for her twin sons; and that respondent had expressed a desire to move to Michigan, and ordered DSS to cease reunification efforts between respondent and her children. Thereafter, following the 3 December 2003 permanency planning review hearing, the trial court made the following pertinent findings of fact:

2. That the minor children continue to be placed in the G. [F]oster home and are doing very well in this placement.

...

6. That the minor child, [J.C.S.], is currently in the ninth (9th) grade at Hickory High School. Because she missed so many days of school last year, she will spend her first semester as a freshman. She is working to complete her schoolwork and is passing her classes this year.

7. That the minor child, [R.D.S.], is currently in the fifth (5th) grade at a local elementary school. While his grades are better, the minor child is having some academic difficulty and will require some after-school assistance.

...

10. That both of the minor children continue to have supervised visitation with the mother for two hours each week at the Department of Social Services. During such visitation, the minor child [R.D.S.] appears to be distancing himself from the mother.

11. That the minor child, [R.D.S.], disclosed in a therapy session on October 24, 2002, that, although he loves the mother very much, he want[s] to be adopted by his foster mother.

12. That the mother has maintained housing through Section 8 in the Catawba Ridge Apartments.

13. That the mother is currently unemployed. She has reported that she has applied for disability and Medicaid.

14. That the mother is currently not paying child support for the minor children due to her unemployment.

15. That the mother has completed the Nurturing Program, but has been unable to consistently demonstrate appropriate parenting skills. When the minor child [R.D.S.] disclosed his wish to be adopted by the foster mother, the mother became upset and was unable to empathize with him or to display appropriate, supportive parenting responses, even with coaching from the therapist.

16. That the mother has completed a substance abuse assessment, Intensive Outpatient Treatment and After Care sessions. She has completed a DWI assessment which was required by DMV.

17. That the mother has completed the Women at Risk Program, but has been unable to consistently demonstrate improved problem-solving and decision-making capabilities.

18. That the mother continues to participate in family therapy through Mental Health.

19. That, although Court order [sic] to do so, the mother has not completed Parenting classes.

20. That, while she brings gifts, cards and food to the visits, the mother focuses the majority of her attention during visitation on the twin sons of [J.C.S.], rather than on the minor children, [J.C.S.] and [R.D.S.]. Despite being redirected to pay attention to the minor child, [R.D.S.], the mother has continued to do this. As a result, the minor child [R.D.S.] often plays by himself during visits because the mother does not pay much attention to him.

21. That the mother loves the minor children very much, but continues to believe that both of the minor children being placed in foster care was the fault of the minor child [J.C.S.] in becoming pregnant.

...

24. That the permanent plan for the minor children of adoption is appropriate and is in the best interest of the minor children.

25. That the Department of Social Services has exercised reasonable efforts to prevent or eliminate the need for continued placement out of the mother's home.

26. That return to the home of the mother is not in the best interest of the minor children, and is contrary to the health, safety and welfare of the minor children.

27. That the Department of Social Services has exercised reasonable efforts to assist the minor children in obtaining permanency and to serve the needs of the minor children.

The trial court then concluded, in pertinent part, as follows:

2. That [DSS] has exercised reasonable efforts toward reunification of the minor children with their mother, but reunification is not in the best interest of the minor children at this time.

...

5. That return to the home of the mother is not in the best interest of the minor children, and is contrary to the health, safety and welfare of the minor children.

Based on the foregoing, the trial court ordered that the permanent plan for both J.C.S. and R.D.S. be changed to adoption. From this permanency planning order, respondent appeals.

I. Motion to Dismiss

At the outset, we note that on 3 November 2003, during the pendency of the instant appeal, the trial court entered an order purporting to terminate respondent's parental rights (TPR order) with respect to J.C.S. and R.D.S. In considering the instant appeal, this Court is entitled to take judicial notice of this subsequent TPR order. In re Stratton, 159 N.C.App. 461, 462, 583 S.E.2d 323, 324, appeal dismissed, 357 N.C. 506, 588 S.E.2d 472-73, (2003). After ten days passed without respondent appealing the TPR order, see N.C. Gen.Stat. § 7B-1113 (2003), DSS subsequently moved this Court pursuant to N.C.R.App. P. 37(a) to dismiss the instant appeal, citing Stratton for the proposition that the TPR order rendered the instant appeal moot. This Court carefully considered the motion and by order entered 19 December 2003 denied DSS' motion to dismiss this appeal.

In considering DSS' motion to dismiss the instant appeal, this Court was presented with the important question of whether the trial court may properly exercise its jurisdiction and enter a subsequent order terminating parental rights during the pendency of an appeal, by the parent whose rights have purportedly been terminated by the subsequent TPR order, from an earlier order in the...