In re M.B.
| Decision Date | 16 May 2017 |
| Docket Number | No. COA16-1165,COA16-1165 |
| Citation | 253 N.C.App. 437,800 S.E.2d 757 |
| Court | North Carolina Court of Appeals |
| Parties | In the MATTER OF: M.B. |
Senior Assistant Durham County Attorney Robin K. Martinek for petitioner-appellee Durham County Department of Social Services.
Miller & Audino, LLP, Greenville, by Jeffrey L. Miller, for respondent-appellant mother.
Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for guardian ad litem.
Ms. E.B. ("respondent") appeals from an order establishing a guardianship for her minor child M.B. ("Max").2 We affirm.
The Durham County Department of Social Services ("DSS") initiated the underlying juvenile case on 10 December 2012, when it obtained non-secure custody of Max and filed a petition alleging that he was a neglected and dependent juvenile. The trial court adjudicated Max to be a dependent juvenile by order entered 16 January 2013. In its disposition order entered 15 March 2013, the trial court continued custody of Max with DSS, granted respondent weekly supervised visitation with Max, and ordered respondent to: (1) obtain substance abuse and mental health evaluations and follow any recommendations; (2) establish and maintain mental health services and comply with all recommendations; (3) submit to testing for Huntington's disease; (4) obtain stable housing and a stable source of income; and (5) participate in a parenting program. In re M.B ., ––– N.C. App. ––––, 785 S.E.2d 782 (2016) (unpublished) (" M.B. I ")
The court initially set the permanent plan for Max as reunification with a parent, but respondent's mental health deteriorated and she failed to comply with the trial court's orders. See M.B. I. On 3 April 2014, the trial court appointed a guardian ad litem ("GAL") for respondent, finding that she lacked sufficient capacity to proceed on her own behalf. In an order entered 28 May 2014, the court ceased reunification efforts with respondent and changed the permanent plan for Max to custody with Ms. J.M. ("Ms. Metz"), his paternal great-grandmother, with an alternative plan of reunification with respondent. Max has lived in the home of Ms. Metz "continuously since June 6, 2014, during which time [Ms. Metz] has been both a placement provider and a guardian of the child." By order entered 15 December 2014, the trial court changed Max's permanent plan to guardianship with Ms. Metz, appointed Ms. Metz as his guardian, and suspended respondent's visitation until she could show that "her mental health has stabilized."
Respondent attempted to appeal from the trial court's 15 December 2014 order, but the trial court dismissed her appeal. By order entered 28 May 2015, this Court issued a writ of certiorari to review both the 15 December 2014 permanency planning review order and the order dismissing respondent's appeal. In our opinion in M.B. I , this Court affirmed the trial court's order dismissing respondent's appeal of right, but vacated and remanded the trial court's permanency planning order because the court had failed to verify that Ms. Metz had adequate financial resources to care for Max.
On 8 August 2016, the trial court conducted another permanency planning review hearing, wherein it considered further evidence of Ms. Metz's financial ability to care for Max. On 26 August 2016, the trial court signed an order appointing Ms. Metz as Max's guardian. In its order, the court found that Ms. Metz, Max, and other members of Ms. Metz's family were living in Cleves, Ohio. The court further found that Ms. Metz had adequate resources to care for Max and that she understood the legal rights and responsibilities she would have as Max's guardian. The court directed respondent to participate in services recommended by DSS, suspended respondent's visitation with Max until she showed to the court that her mental health had stabilized, ceased further reviews in the juvenile case, and released DSS, Max's GAL, and the parties’ counsel of further duties. Within a month of the entry of this order, Ms. Metz moved back to Durham, North Carolina. Accordingly, when respondent filed a notice of appeal, she served it on Ms. Metz at her address in Durham, North Carolina.
Respondent first argues that the trial court erred by appointing Ms. Metz as Max's guardian without first complying with the requirements of the Interstate Compact on the Placement of Children ("ICPC" or "Compact"). Respondent contends that because Ms. Metz "was a resident of Ohio at the time" of the entry of the permanency planning order, the trial court's order must be "reversed and vacated, and this matter should be remanded for compliance with the ICPC[.]" We conclude that this argument has been rendered moot by Ms. Metz's return to North Carolina.
An issue Roberts v. Madison Cty. Realtors Ass'n , 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) (quoting In re Peoples , 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978) ). "It is well-established that ‘courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter rise, or give abstract opinions.’ " In re Accutane Litig ., 233 N.C.App. 319, 326, 758 S.E.2d 13, 19 (2014) (quoting Baxter v. Jones , 283 N.C. 327, 332, 196 S.E.2d 193, 196 (1973) ). For example, in In re Stratton , 159 N.C.App. 461, 583 S.E.2d 323, appeal dismissed , 357 N.C. 506, 588 S.E.2d 472 (2003), the respondent appealed from an adjudication of neglect and dependency. During the pendancy of the appeal, respondent's parental rights to the child were terminated. This Court dismissed the respondent's appeal as moot, holding that the "questions raised by [respondent] on this appeal are now academic given [the trial court's] order terminating his parental rights." Stratton , 159 N.C.App. at 463, 583 S.E.2d at 324.
In the present case, appellee DSS contends that we should dismiss as moot respondent's argument that the trial court erred by failing to comply with the ICPC prior to designating Ms. Metz as Max's guardian. DSS argues that because "the Guardian has moved back to North Carolina, there is no longer an issue of controversy related to the ICPC." Respondent has requested that this case be remanded for "for further proceedings consistent with the ICPC." We agree with DSS that "[s]ince the ICPC no longer applies, there is no hearing for the [trial court] to conduct in accordance with the ICPC."
We note that respondent's appeal on this issue is premised on the fact that "[Ms. Metz] was a resident of Ohio at the time " that the permanency planning order was entered. (emphasis added). At no point in her appellate brief does respondent contend that Ms. Metz continues to reside in Ohio, and respondent has not disputed DSS's assertion that Ms. Metz no longer lives in Ohio. Moreover, review of the record shows that respondent served her notice of appeal on Ms. Metz at 606 Hugo Street, Durham, North Carolina, 27704. Thus, respondent clearly is aware that Ms. Metz returned to North Carolina shortly after the entry of the order from which she appeals. In addition, respondent does not argue that the facts of this case fall within an exception to the mootness doctrine. We conclude that the issue of the applicability of the ICPC has been rendered moot by Ms. Metz's return to North Carolina. Accordingly, we do not address this issue.
Respondent also argues that the trial court erred in failing to designate what parental rights, if any, she retained following...
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