In re L.L.

• Decision Date: 16 August 2005
• Docket Number: No. COA04-783.,COA04-783.
• Citation: 616 S.E.2d 392
• Parties: In re L.L., a minor child.
• Court: North Carolina Supreme Court

616 S.E.2d 392

In re L.L., a minor child.

No. COA04-783.

Court of Appeals of North Carolina.

August 16, 2005.

Appeal by petitioner and respondents from an order entered 21 January 2004 by Judge Marcia K. Stewart in Johnston County District Court. Heard in the Court of Appeals 2 March 2005.

Holland & O'Connor, by W.B. Holland, Jr. and Jennifer S. O'Connor, Raleigh, for petitioner-appellant.

Richard Croutharmel for respondent-appellant mother.

Peter Wood for respondent-appellant father.

Wyrick, Robbins, Yates & Ponton, LLP, by K. Edward Greene and Kathleen A. Naggs, Raleigh, for intervenors-appellees.

GEER, Judge.

Petitioner Johnston County Department of Social Services ("JCDSS") and the parents of L.L. ("the respondents") appeal from an order of the trial court transferring custody from JCDSS to the intervenor foster parents ("the Maples"). Our review of the record suggests that the trial court and the parties may have gotten sidetracked by the dispute between JCDSS and the Maples to the point that L.L. has become less the focus of attention and more a pawn in the dispute.

Perhaps as a result, the order on appeal was filed eight months late to the prejudice of L.L., the parents, and JCDSS. For this reason, we reverse. We also hold that the trial court erred in its order by not complying with the provisions of N.C. Gen.Stat. § 7B-906 (2003) and by not explaining why it declined to give preference to the child's relatives when considering placement of the child. Accordingly, we reverse the trial court's order and remand for a new review hearing and entry of an order consistent with this opinion.

Facts

L.L. was born to respondents on 4 October 2002. Because respondents' first child had been removed from respondents' custody and adjudicated abused, neglected, and dependent in December 2001, JCDSS obtained custody of L.L. on 16 October 2002 pursuant to an order for nonsecure custody. On that same day, JCDSS placed L.L. with the Maples.

Following a hearing on 20 November 2002, Judge Marcia K. Stewart entered an order on 19 December 2002 adjudicating L.L. to be neglected and dependent. In the dispositional order, the court "direct[ed] the JCDSS, despite the recommendations of the agency, to work towards reunification with the parents." The court also entered an order for an expedited Interstate Compact on the Placement of Children ("ICPC") home study to explore relative placement with L.L.'s maternal great-great aunt and uncle, Gerald and Sandra Spears, in Virginia.

On approximately 30 January 2003, the Maples learned that JCDSS had changed its plan from foster care placement to relative placement with the Spears. The Maples subsequently met with the Spears to assist with L.L.'s move to the Spears' home, but the Maples — according to the trial court — "grew extremely concerned with [L.L.'s] placement with the Spears, given their age and the fact that they already had three other children in their custody under the age of seven and a limited family income."

On 12 February 2003, the court held a 90-day review hearing. Since JCDSS had not yet received a response from the State of Virginia regarding the home study of the Spears, the court determined that it was in L.L.'s best interest to remain in a foster care placement with the Maples. The court provided that the goal of the foster care placement was "to provide a temporary placement for the juvenile, pending reunification or location of a relative placement possibility." The court specifically stated that termination of parental rights should not be pursued because "the court determines that it is in the juvenile's best interest to continue to work towards reunification with the parents."

The 12 March 2003 90-day review hearing was continued until 19 March 2003 because the mother's attorney could not be present. At the 19 March 2003 hearing, the Maples made an oral motion to intervene that Judge Stewart granted without objection by JCDSS or the parents. The 90-day review hearing was then continued until 9 April 2003 because the guardian ad litem could not be present. A written order allowing the motion to intervene was not entered until 9 June 2004, 15 months later.

On the same day, 19 March 2003, the Maples filed petitions to terminate the parental rights of both respondent parents and to adopt L.L. On 20 March 2003, because of these petitions, JCDSS removed L.L. from the Maples' home and placed her in the care of another foster family. JCDSS filed a motion to dismiss the petitions to terminate respondents' parental rights on 7 April 2003 on the grounds that the court had ordered JCDSS to work towards reunification and that the Maples did not have standing to file the petitions.

At the 9 April 2003 hearing, Judge Franklin F. Lanier was assigned to hold juvenile court. Counsel for the Maples informed Judge Lanier that Judge Stewart, who was assigned that day to civil district court, had told him on the day before the hearing that she wanted to retain jurisdiction of the matter. Judge Lanier consulted with Judge Stewart and counsel for the parties and transferred the case to the courtroom in which Judge Stewart was presiding.

At the 9 April 2003 hearing before Judge Stewart, counsel for JCDSS, the guardian ad litem, and counsel for the parents informed the court that they had all stipulated to an order placing L.L. in the custody of her maternal relatives, the Spears. The Maples objected to the recommendation and the trial court then conducted a two-day hearing. At the conclusion of the hearing, on 10 April 2003, the court stated in open court that L.L. was removed from the custody of JCDSS and was placed in the custody of the Maples. The court, however, further ordered JCDSS to continue to work towards reunification with the parents and granted visitation to the parents. Judge Stewart also stated, at the close of the hearing, that she retained jurisdiction over the matter.

Although no written order had been entered, JCDSS and the parents each filed notices of appeal from the review hearing order rendered in open court. Simultaneously with its notice of appeal filed 17 April 2003, JCDSS filed a motion for a stay pending appeal, contending that granting custody to the Maples compromised the agency's ability to work towards reunification. The parents filed similar motions on 6 May 2003. On 7 May 2003, the parents also filed motions seeking recusal of Judge Stewart on the grounds that Judge Stewart had improperly retained jurisdiction of the case and also lived in the same neighborhood as the Maples.

JCDSS had noticed its motion to dismiss the Maples' petitions for termination of parental rights for hearing on 30 April 2003. On 28 April 2003, however, the Maples moved to continue that motion on the grounds "that an Order related to this matter had not been signed by the Judge as yet and the Department of Social Services has filed the enclosed Notice of Appeal which has a material effect on this action. . . ."

On 27 May 2003, Judge Stewart denied JCDSS' and the respondents' motions for a stay pending appeal. After hearing arguments of counsel, Judge Stewart "reaffirm[ed] the decision of April 9, 2003, to place the child in the home of Mr. and Mrs. Maples." She entered a single conclusion of law stating that the matter was properly before the court, was within the exclusive jurisdiction of the district court, and was properly calendared with notice to all parties. Based on that conclusion of law, she ordered that the motion for a stay pending appeal be denied. On the next day, 28 May 2003, the Maples filed amended petitions for termination of respondents' parental rights to L.L.

On 30 May 2003, Judge Stewart denied the motions for recusal in an order stating that "[c]ase law does not allow the retention of jurisdiction in a District Court case" and that "although the Intervenors in this action, Mr. and Mrs. Maples, are nearby neighbors, the undersigned does not know them personally and has had no contact with them." She, therefore, denied the motion for recusal, but allowed the motion "that the court not retain jurisdiction."

With respect to the April 2003 review hearing, no written order was filed through the summer and fall of 2003. On 30 December 2003, JCDSS filed a notice of hearing for 14 January 2004 "for the purpose of reviewing this file and determining the best interest of the child." On 21 January 2004, the trial court entered its written order regarding the 9 and 10 April 2003 review hearing. JCDSS and the parents filed new notices of appeal from the written order.

Discussion

I. The Transfer of the Review Hearing to Judge Stewart.

JCDSS argues that the trial court's order should be reversed because the court erred by improperly retaining jurisdiction over the case. Specifically, JCDSS asserts that Judge Stewart improperly presided over the review hearing when she had no authority to act because Judge Lanier was the judge assigned to hear juvenile cases on that date. Judge Stewart was assigned to preside over Johnston County civil district court.

JCDSS and respondents did not, however, object to Judge Stewart's presiding over the review hearing. In fact, counsel for JCDSS expressly stated that he had no objection and acknowledged that the hearing had been calendared for 9 April 2004 specifically because the parties believed it to be Judge Stewart's term of juvenile court. N.C.R.App. P. 10(b)(1) states that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." Appellants thus did not properly preserve this issue for appellate review.

Nevertheless, JCDSS contends that because Judge Stewart was not assigned to preside over juvenile court on 9 April 2003, she lacked subject matter jurisdiction over the review...