In re T.-N. J.J.

• Decision Date: 16 November 2021
• Docket Number: No. COA21-330,COA21-330
• Citation: 865 S.E.2d 374 (Table)
• Parties: In the MATTERS OF: T.-N. J.J., T.-L. J.J., T.-H. J.J.
• Court: North Carolina Court of Appeals

865 S.E.2d 374 (Table)

In the MATTERS OF: T.-N. J.J., T.-L. J.J., T.-H. J.J.

No. COA21-330

Court of Appeals of North Carolina.

Filed November 16, 2021

Freedman Thompson Witt Ceberio & Byrd, PLLC, by Christopher M. Watford, for respondent-appellant mother.

R. Matthew Gibson, for Pitt County Department of Social Services.

Poyner Spruill, LLP, by Caroline P. Mackie, for Guardian Ad Litem.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Respondent-Mother (Mother) appeals from the trial court's Three Month Review Order and Child Custody Order Pursuant to N.C.G.S. § 7B-911 (Civil Order) terminating juvenile court jurisdiction, transferring the case to a civil child custody matter, and granting legal and physical custody to Respondent-Father (Father). The Record tends to reflect the following:

¶ 2 Mother has six children; Nicole, Linda, and Hanna¹ are the three children involved in this matter. On 28 August 2020, the Pitt County Department of Social Services (DSS) filed a Juvenile Petition (Petition) in Pitt County District Court alleging Nicole, Linda, and Hanna were neglected juveniles; however, DSS did not seek non-secure custody. The Petition alleged Mother had left the children unsupervised and in an injurious environment. The Petition came on for hearing on 29 October 2020. The same day, after the hearing, the trial court rendered its decision.

¶ 3 On 20 November 2020, DSS filed a Motion for Review alleging "inappropriate behavior" by Mother and "inappropriate contact" between the children and other siblings. The Motion sought to "address the cessation of visits and to request non-secure and custody with [Father]." On 15 December 2020, the trial court entered its written Order adjudicating the children neglected and ordering Mother and Father to share joint legal custody, while granting Father physical custody. This Order set a "Three Month Review Hearing" pursuant to N.C. Gen. Stat. § 7B-906.1 for 28 January 2021. Although originally calendared for 3 December 2020, the trial court continued the hearing for DSS's Motion until 28 January 2021—the date set for the Three Month Review hearing.

¶ 4 During the 28 January 2021 hearing, the trial court heard evidence that Mother had violated conditions on visitation ordered by the trial court as part of its disposition following the neglect adjudication. Moreover, the trial court also heard evidence of inappropriate touching and behavior between the children and another sibling while visiting Mother. After the close of evidence, the trial court stated it would order legal and physical custody of Nicole, Linda, and Hanna "be granted to Respondent-Father" and that Mother "have supervised visits with the girls four hours once a month" supervised "by the Family Center with the parties sharing equally the cost of that." The trial court also stated that it would "prepare a Chapter 50 file with the Father as the Plaintiff and Mother is the Defendant" and "terminate [juvenile] jurisdiction."

¶ 5 On 3 March 2021, the trial court entered its written Three Month Review Order. The Three Month Review Order included the following pertinent Findings of Fact:

6. On November 10, 2020 an investigative assessment was received by [DSS] for sexual abuse and improper supervision due to explicit photographs that were found on [Hanna's] tablet.

7. It was also reported by [Hanna] that she and her siblings were inappropriately touched by their older brother.

8. As a result of the November 10, 2020 assessment a safety plan was put in place by which [Nicole, Linda, and Hanna] were not to be left unsupervised with the Respondent Mother's sister.

9. The safety plan was violated the next weekend when the Juveniles were left alone with their brother and were left in the care of their maternal aunt.

....

17. The Respondent Mother is still unable to ensure that the Juvenile's needs are met on a consistent basis.

....

21. The Respondent Father and his wife have continued to provide appropriate care for the Juveniles.

....

23. Neither the Juveniles’ best interests nor the rights of any party require that a review hearing be held after today.

24. Pursuant to N.C.G.S. § 7B-911(c)(2), there is not a need for continued State intervention on behalf of the Juveniles.

¶ 6 Based on these Findings, the trial court concluded:

3. This order is in the best interests of the Juveniles

....

4. Pursuant to N.C.G.S. § 7B-911(c)(2), there is not a need for continued State intervention on behalf of the Juveniles.

Accordingly, the trial court ordered "Legal and physical custody of the Juveniles ... shall be placed solely with the Respondent Father"; Mother is to have four hours of supervised visitation once a month at "the Family Center" and that Mother and Father should share the cost "associated with the use of the Family Center"; that "Pitt County Juvenile Court shall terminate jurisdiction over the matter"; that the "Pitt County Clerk of Superior Court shall treat this order as the initiation of a civil action for custody pursuant to N.C.G.S. 7B-911" and "cause a copy of this order to be placed into a civil file for the Juveniles" captioned "[Father] v. [Mother]" with a CVD case number; and "[a]ny court costs for the creation of that action are waived."

¶ 7 The same day, the trial court entered its written Civil Order in 21 CVD 672 labelled "Initial Custody Order" in the caption. In the Civil Order, the trial court made eight Findings including: two Findings as to Nicole, Linda, and Hanna's identity; that "[t]he Court finds it in the Juvenile's best interest that he be placed in the legal and physical custody of [Father]"; that Mother "shall have supervised visits with the Juveniles for four hours once a month" at the Family Center, and Mother and Father "shall share the cost associated with the use of the Family Center"; and that there "is no further need for State intervention on behalf of the children through a Juvenile court proceeding and the juvenile court terminates its jurisdiction upon entry of this order." Based on these Findings, the trial court concluded: "It is in the best interests of the child that he remains placed with [Father]"; and "It is in the best interests of the child that [Mother] have reasonable visitation as established by the court."

¶ 8 Accordingly, the trial court ordered: "Legal and physical custody of [Nicole, Linda, and Hanna] shall be granted to [Father]"; "[Mother] shall have supervised visit[s] with the Juveniles for four hours once a month ... at the Family Center"; Mother and Father "shall share the cost associated with the use of the Family Center"; that "pursuant to N.C.G.S. § 7B-911, the Clerk of Superior Court shall treat this Order [as] the initiation of a civil action for custody, and shall assign a CVD number to this order. The filing fee for such action shall be waived"; the caption of the Civil Order should read [Father] v. [Mother]; that the "order constitutes a custody determination"; that "[t]he terms of this Order are temporary and non-prejudicial to the rights of either party and shall remain in effect until a permanent order is put in place or until it becomes a permanent order as a matter of law"; and that the "juvenile court's jurisdiction is terminated."

¶ 9 Mother timely filed written Notice of Appeal from both the Three Month Review Order and Civil Order on 18 March 2021.

Issues

¶ 10 The issues on appeal are whether the trial court: (I) complied with the requirements of N.C. Gen. Stat. § 7B-911 to properly terminate juvenile court jurisdiction and transfer this matter to a civil custody action; (II) made adequate Findings of Fact to support the Civil Order generally; and (III) abused its discretion in ordering Mother to pay half the cost of the Family Center without making findings as to Mother's ability to pay.

Analysis

I. Termination of Juvenile Court Jurisdiction

¶ 11 Mother first argues the trial court improperly terminated juvenile court jurisdiction because the Civil Order did not contain necessary findings to satisfy the requirements set forth in N.C. Gen. Stat. § 7B-911. "We review an order's compliance with statutory requirements de novo. " In re S.M.L. , 272 N.C. App. 499, 517, 846 S.E.2d 790, 802 (2020). An "order which both terminates juvenile court jurisdiction and serves as the ‘civil custody order’ under Chapter 50 ... must include the proper findings of fact and conclusions of law required for each component of the order." Sherrick v. Sherrick , 209 N.C. App. 166, 172, 704 S.E.2d 314, 319 (2011) (citation omitted). "When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." N.C. Gen. Stat. § 7B-201(a) (2019). N.C. Gen. Stat. § 7B-911 provides a court may terminate juvenile jurisdiction and transfer the matter to a civil child custody action when it makes certain findings and meets certain requirements:

(a) Upon placing custody with a parent or other appropriate person, the court shall determine whether or not jurisdiction in the juvenile proceeding should be terminated and custody of the juvenile awarded to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.

(b) When the court enters a custody order under this section, the court shall either cause the order to be filed in an existing civil action relating to the custody of the juvenile or, if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody.

....

If the court's order initiates a civil action, the court shall designate the parties to the action and determine the most appropriate caption for the case. The civil filing fee is waived unless the court orders one or more of the parties to pay the filing fee for a civil action into the office of the clerk of superior court. The order shall constitute a custody determination, and any motion to enforce or

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