In re R.T.W.

• Decision Date: 01 July 2005
• Docket Number: No. 417PA04.,417PA04.
• Citation: 614 S.E.2d 489
• Parties: In the Matter of R.T.W.
• Court: North Carolina Supreme Court

614 S.E.2d 489

In the Matter of R.T.W.

No. 417PA04.

Supreme Court of North Carolina.

July 1, 2005.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous, unpublished decision of the Court of Appeals, 165 N.C.App. 274, 600 S.E.2d 521 (2004), vacating an order terminating respondent's parental rights filed 29 January 2003 by Judge M. Patricia DeVine in District Court, Orange County. Heard in the Supreme Court 9 February 2005.

Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe, Chapel Hill, for petitioner-appellant Orange County Department of Social Services.

Terry F. Rose, Smithfield, for respondent-appellee.

NEWBY, Justice.

The issue is whether a trial court retains jurisdiction to enter an order terminating parental rights while a custody order in the same case is pending appellate review. We conclude it does and reverse the Court of Appeals.

I. BACKGROUND

In December of 2000, Child Protective Services (CPS) received a report alleging respondent-then age fourteen-had been sexually abused by her twenty-one-year-old half-brother while living with her mother in Hillsborough. An investigation revealed respondent was pregnant with her half-brother's child. Respondent's half-brother was eventually imprisoned for statutory rape.

Respondent gave birth to her son, R.T.W., on 4 May 2001. Thereafter, CPS referred fresh accusations of neglect to petitioner Orange County Department of Social Services (DSS). These allegations raised concerns about the family's housing (a roach-infested residence with lead paint peeling off the walls that lacked electricity and running water and was later condemned), excessive alcohol consumption by respondent's mother, respondent's failure to bond with R.T.W., and inadequate adult supervision of both respondent and her newborn son.

In response to these allegations, DSS obtained a court order on 23 August 2001 granting it custody of fifteen-year-old respondent and three-and-one-half-month-old R.T.W. Respondent was sent to a residential group home for adolescents, and R.T.W. was placed in foster care. The next day, DSS filed a juvenile petition alleging R.T.W. was a neglected and dependent juvenile. At a 4 October 2001 adjudicatory hearing, the trial court determined R.T.W. to be a dependent juvenile. See N.C.G.S. § 7B-101 (2003).

One month later, on 1 November 2001, the court held a combined custody review/permanency planning hearing.¹ It entered an order (hereinafter "custody review order") directing that R.T.W. remain in the custody of DSS and that efforts to reunify respondent and R.T.W. cease. The custody review order also set adoption as the permanent plan for R.T.W. and instructed DSS to file a petition or motion in the cause within sixty days to terminate respondent's parental rights. Respondent appealed the order.

While this appeal was pending, on 20 December 2001, as instructed by the trial court, DSS filed a motion to terminate respondent's parental rights. The trial court held hearings on the matter on four dates in 2002 and 2003. On 29 January 2003, the court entered a termination order. In its findings of fact the court cited, inter alia, respondent's need for years of therapy due to the abuse and neglect she had suffered and the risk of abuse and neglect to R.T.W. if returned to her care. Per N.C.G.S. § 7B-1111, the court concluded that respondent was incapable of properly caring for and supervising R.T.W. and that those circumstances would likely continue for the foreseeable future. Respondent also appealed the termination order.

Soon after R.T.W.'s second birthday, an unpublished Court of Appeals opinion filed on 20 May 2003 remanded the custody review order to the trial court for additional findings of fact. In re R.T.W., 157 N.C. 716, 580 S.E.2d 98, 2003 WL 21153404 (May 20, 2003) (No. COA03-728). Although the trial court entered a revised order with additional findings on 25 July 2003, it opined that its termination order had rendered this aspect of the matter moot.²

Nearly one year later, on 6 July 2004, the Court of Appeals vacated the termination order, ruling the trial court lacked jurisdiction to terminate parental rights during the pendency of respondent's appeal of the custody review order. In re R.T.W., 165 N.C.App. 274, 600 S.E.2d 274, 2004 WL 1497710 (July 6, 2004) (No. COA03-728). Following In re Hopkins, 163 N.C.App. 38, 592 S.E.2d 22 (2004), it based its holding on N.C.G.S. § 7B-1003, which permits trial courts to enter "`temporary order[s] affecting ... custody or placement'" while a custody order is pending appeal. R.T.W., 2004 WL 1497710 at *1 (quoting N.C.G.S. § 7B-1003) (emphasis added). The Court of Appeals found the statute's use of the term "temporary" to be dispositive: "[A termination order] `is ... a permanent rather than a temporary order affecting ... custody or placement[.]' Therefore, the trial court does not have jurisdiction to terminate parental rights while a[n] appeal from an earlier order is pending." Id. (alterations in original).

The court mentioned, but refused to follow, In re Stratton, 159 N.C.App. 461, 583 S.E.2d 323 (2003), which held the entry of a termination order rendered a father's pending appeal of an earlier custody order moot.³ Hopkins and Stratton have produced two conflicting lines of cases. See In re V.L.B., 164 N.C.App. 743, 745, 596 S.E.2d 896, 897 (2004) (following Stratton); In re J.C.S., 164 N.C.App. 96, 101-03, 595 S.E.2d 155, 158-59 (2004) (distinguishing Hopkins and Stratton but following Hopkins); In re N.B., 163 N.C.App. 182, 183-84, 592 S.E.2d 597, 598 (2004) (following Stratton). Although the Court of Appeals has attempted to reconcile these cases, it recently conceded they are, in fact, "irreconcilable." V.L.B., 164 N.C.App. at 746, 596 S.E.2d at 897.

We allowed DSS's petition for discretionary review to resolve the conflict in our lower court's case law. As neither party has any constitutional claim properly before this Court, we decide this case on purely statutory grounds. We hold the pending appeal of a custody order does not deprive a trial court of jurisdiction over termination proceedings. As explained below, our holding rests on the legislative intent evident in relevant portions of North Carolina's Juvenile Code, Subchapter I (Abuse, Neglect, Dependency). We affirm Stratton as correctly implementing the legislature's intent, and we specifically overrule Hopkins and J.C.S. A summary of parental rights and a review of the relevant aspects of Subchapter I are foundational to our analysis.

II. PARENTAL RIGHTS

Parents have a fundamental right to the custody, care, and control of their children. David N. v. Jason N., 359 N.C. 303 305, 608 S.E.2d 751, 752-53 (2005) (citing Petersen v. Rogers, 337 N.C. 397, 400, 445 S.E.2d 901, 903 (1994)); In re Montgomery, 311 N.C. 101, 106, 316 S.E.2d 246, 250 (1984) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)); see also N.C.G.S. § 7B-3400 (2003) (confirming children under 18 are "subject to the supervision and control of [their] parents"). This right enjoys constitutional protection. See, e.g., David N., 359 N.C. at 305, 608 S.E.2d at 752-53. However, it is not absolute. Id.

The law has long viewed parental rights and parental responsibilities as two sides of the same coin. 1 William Blackstone, Commentaries * *434-40 (observing a father's authority over his children at common law was derived from his duty to maintain, protect, and educate them). In other words, one who refuses to behave like a parent risks losing the rights of a parent. Hence it is possible for mothers and fathers to forfeit parental rights through unfitness or conduct inconsistent with their constitutionally protected status. David N., 359 N.C. at 307, 608 S.E.2d at 753-54 (holding parents may abandon their status through abandonment, abuse, or neglect). When this occurs, the state's interest in the welfare of the child may warrant removing the child from the parent's custody and even-on rare occasions-terminating parental rights. See Montgomery, 311 N.C. 101, 316 S.E.2d 246.

III. SUBCHAPTER I OF THE JUVENILE CODE

The principles articulated in Section II permeate Subchapter I of the Juvenile Code, which reflects the need both to respect parental rights and to protect children from unfit, abusive, or neglectful parents. See N.C.G.S. §§ 7B-100 to -1414 (2003). As previously noted, our resolution of this case depends upon the legislative intent evident in the subchapter. We concentrate on Article 1, certain sections of Articles 2 through 10, and Article 11. Article 1 contains a declaration of legislative intent applicable to all of Subchapter I. Id. § 7B-100. Articles 2 through 10 address child custody and permanency planning matters. Id. §§ 7B-200 to -1004. Article 11 establishes the rules governing the termination of parental rights. Id. §§ 7B-1100 to -1113.

A. ARTICLE 1-LEGISLATIVE INTENT

Article 1 of Subchapter I directs us to construe the rest of the subchapter in a manner that accomplishes the following purposes and policies:

(1) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;

(2) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family[;]

(3) To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence; []

(4) To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents[; and]

(5) To provide standards, consistent with the ...