In re E.W.P.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitte d in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1114
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
Brunswick County
Nos. 11 JA 125-26
E.W.P. and J.W.P.

Appeal by respondent-father from orders entered 12 July

2013 by Judge Sherry Dew Prince in Brunswick County District

Court. Heard in the Court of Appeals 14 April 2014.

Jess, Isenberg & Thompson, by Elva L. Jess, for petitioner-
appellee Brunswick County Department of Social Services.

Mary McCullers Reece for respondent-appellant father.

Kerner Law Firm, by Robert C. Kerner, Jr., for guardian ad
litem (no brief).

Ervin, Judge.

Respondent-Father Jonathan P. appeals from permanency

planning orders entered by the trial court which awarded

guardianship of E.W.P. and J.W.P.1 to their paternal grandmother,

Jeanie K., and paternal aunt, Wendy D. On appeal, Respondent-

Father contends that the trial court erred by failing to adopt a

1
E.W.P and J.W.P will be referred to throughout the
remainder of this opinion as “Enid” and “Jake,” pseudonyms used
for ease of reading and to protect the juveniles’ privacy.
 -2-
specific plan under which Respondent-Father was allowed to visit

Enid and Jake and by dispensing with the necessity for further

periodic review proceedings without making the statutorily

required findings of fact. After careful review of Respondent-

Father’s challenges to the trial court’s orders in light of the

record and the applicable law, we conclude that the trial

court’s orders should be reversed and that this case should be

remanded to the Brunswick County District Court for further

proceedings not inconsistent with this opinion.

I. Factual Background

On 6 September 2011, the Brunswick County Department of

Social Services filed petitions alleging that Enid and Jake were

neglected and dependent juveniles and obtained the entry of

orders taking the children into nonsecure custody. At that

time, Enid was twenty months old and Jake was nine months old.

In addition, J.A.W., who was Respondent-Father’s daughter from

an earlier marriage, lived with the family.2 According to the

allegations advanced in the petitions, both children were

developmentally delayed as a result of the environment in which

they lived; the children’s parents failed to provide them with

adequate medical care, food, and diapers; and Jake had been

2
J.A.W. will be referred to throughout the remainder of this
opinion as “Joan,” a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
 -3-
diagnosed as failing to thrive. Although the children were

originally placed in a kinship placement with their paternal

grandmother on 11 August 2011, they were moved to a licensed

foster home on 16 September 2011.

On 19 October 2011, the trial court entered an order

adjudicating Jake, Enid, and Joan to be neglected and dependent

juveniles. In a subsequent dispositional order, the trial court

determined that the children should remain in DSS custody and

ordered Respondent-Father and Respondent-Mother Margaret P. to

execute and comply with case plans. On 28 June 2012, the trial

court entered an order providing that DSS was no longer required

to make efforts to reunify Enid and Jake with their parents and

changed the permanent plan for Enid and Jake from reunification

with their parents to placement with a court-approved care

giver. Although Enid and Jake had moved back to their

grandmother’s home on 1 August 2012, they had been visiting her

regularly before that date.

The case came on for a permanency planning hearing on 12

June 2013. In two orders entered on 12 July 2013, the trial

court found that it was not possible for Enid and Jake to return

home within the next six months. As a result, the trial court

made Jeanie K. and Wendy D. the children’s guardians given that

the children had been living with Jeanie K., that Wendy D. lived
 -4-
next door to Jeanie K., and that Wendy D. was willing to share

the responsibility of caring for the children with Jeanie K. In

addition, the trial court relieved DSS and the guardian ad litem

of the necessity for having further involvement with the

children, concluded that there was no need for continued

monitoring of the children’s placement, and released Respondent-

Father’s counsel from any further obligation to represent

Respondent-Father. Respondent-Father noted an appeal to this

Court from the trial court’s orders.

II. Substantive Legal Analysis

A. Mootness

In his brief, Respondent-Father argues that the trial court

erred by (1) failing to adopt a specific plan governing his

visitation with the children and (2) dispensing with the

necessity for further periodic review proceedings without making

the findings of fact required by N.C. Gen. Stat. § 7B-906(b).

In its sole response to Respondent-Father’s contentions, DSS

argues that the trial court obviated the necessity for this

Court to address the issues raised by Respondent-Father by

convening a new permanency planning hearing and entering new

permanency planning orders on 12 December 2013 which contained

findings of fact and ordering language addressing the issues
 -5-
that Respondent-Father has raised on appeal.3 We do not find

DSS’ argument persuasive.

Although DSS does not couch its response to Respondent-

Father’s challenge to the trial court’s orders in mootness

terms, the essential thrust of its position is that, by

convening new permanency planning hearings and entering new

permanency planning orders after the filing of Respondent-

Father’s brief with this Court, the trial court has rendered

Respondent-Father’s challenge to the original permanency

planning orders moot. According to well-established North

Carolina law, “[a] case is ‘moot’ when a determination is sought

on a matter which, when rendered, cannot have any practical

effect on the existing controversy.” Roberts v. Madison Cnty.

Realtors Assn., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)

(citing Black’s Law Dictionary 1008 (6th ed. 1990)). As a

general proposition, “‘[w]henever, during the course of

litigation it develops that the relief sought has been granted

or that the questions originally in controversy between the

parties are no longer at issue, the case should be dismissed,

for courts will not entertain or proceed with a cause merely to

determine abstract propositions of law.’” Dickerson Carolina,

Inc. v. Harrelson, 114 N.C. App. 693, 697-98, 443 S.E.2d 127,
3
DSS included the revised orders as an appendix to its
brief.
 -6-
131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994)

(quoting In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912

(1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979)).

In the course of determining whether an appeal should be

dismissed as moot, “[c]onsideration of matters outside the

record is especially appropriate.” State ex rel. Util. Comm’n

v. S. Bell Telephone & Telegraph Co., 289 N.C. 286, 288, 221

S.E.2d 322, 324 (1976). Thus, we must, as a preliminary matter,

address the extent to which the trial court appropriately

addressed and rectified Respondent-Father’s concerns with

respect to the original permanency planning orders by entering

the 12 December 2013 orders.

The fundamental problem with DSS’ mootness argument is that

the trial court lacked the authority to enter the 12 December

2013 orders. According to N.C. Gen. Stat. § 7B-1003(b), a trial

court has the authority, pending appeal, to “[c]ontinue to

exercise jurisdiction and conduct hearings under [the provisions

of Chapter 7B of the General Statutes dealing with abused,

neglected, and dependent juveniles] with the exception of [those

provisions dealing with the termination of parental rights]” and

“[e]nter orders affecting the custody or placement of the

juvenile as the court finds to be in the best interests of the

juvenile.” As this Court has previously noted, “N.C. Gen. Stat.
 -7-
§ 7B-1003 and its predecessors were intended to authorize

continued jurisdiction for a limited purpose: protection of the

child pending appeal” and, for that reason, “limit[] the trial

court’s authority to the traditionally-recognized need to

protect children pending appeal.” In re K.L., 196 N.C. App.

272, 278-79, 674 S.E.2d 789, 793-94 (2009). The clear

motivation underlying the entry of the 12 December 2013 orders

was to address and attempt to rectify errors that Respondent-

Father claimed to exist in the original permanency planning

orders in his brief before this Court, a purpose that has no

direct bearing upon the need to protect children during the

pendency of an appeal. As a result, we conclude that, since the

trial court lacked the authority to enter the 12 December 2013

orders, the mootness argument advanced by DSS has no merit, and

we must proceed to address Respondent-Father’s challenges to the

trial court’s permanency planning orders.

B. Validity of Respondent-Father’s Challenges
to the Trial Court’s Permanency Planning Orders

1. Lack of Specific Visitation Plan

“Any dispositional order . . . under which the juvenile’s

placement is continued outside the home shall provide for

appropriate visitation as may be in the best interests of the

juvenile and consistent with the juvenile’s health and safety.”

N.C. Gen. Stat. § 7B-905(c) (2011). In the orders that are
 -8-
before us for review in this case, the trial court provided

“[t]hat any visitation between the minor child[ren] and [their]

parents shall be in the discretion of the guardian. . . .”

According to Respondent-Father, the visitation provisions of the

trial court’s permanency planning orders failed to comply with

the requirements of N.C. Gen. Stat. § 7B-905(c) because those

orders included neither a specific visitation plan nor a finding

that Respondent-Father was unfit to visit with his children.

Respondent-Father’s contention has merit.

“The awarding of visitation of a child is an exercise of a

judicial function, and a trial court may not delegate this

function to the custodian of a child.” In re E.C., 174 N.C.

App. 517, 522, 621 S.E.2d 647, 652 (2005).

In the absence of findings that the parent
has forfeited [his] right to visitation or
that it is in the child’s best interest to
deny visitation “the court should safeguard
the parent’s visitation rights by a
provision in the order defining and
establishing the time, place[,] and
conditions under which such visitation
rights may be exercised.”

Id. at 522-23, 621 S.E.2d at 652 (alteration in original)

(quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844,

849 (1971)). In this case, the trial court failed to either

find that Respondent-Father had forfeited his right to visit

with Enid and Jake or that Respondent-Father would be entitled
 -9-
to visit with Enid and Jake according to certain judicially

specified terms and conditions. Instead, the trial court left

visitation between Respondent-Father, on the one hand, and Enid

and Jake, on the other hand, in the discretion of the guardians,

an outcome that we have previously found to be contrary to N.C.

Gen. Stat. § 7B-905(c). See id. at 521-23, 621 S.E.2d at 651-52

(holding that the trial court erred by authorizing the parent to

visit with the children in the discretion of the appointed

guardian). As a result, we reverse the visitation provisions of

the challenged portion of the trial court’s permanency planning

orders and remand this case to the Brunswick County District

Court for the entry of new permanency planning orders containing

appropriate findings, conclusions, and ordering clauses

describing the extent to which and circumstances under which

Respondent-Father is entitled to visit with Enid and Jake

consistently with the provisions of N.C. Gen. Stat. § 7B-905.1.4

2. Necessity for Future Review Proceedings

4
In 2013 N.C. Sess. L. c. 129, s. 23, 24, and 41, the
General Assembly repealed the visitation-related provisions of
N.C. Gen. Stat. § 7B-905(c) and replaced them with the
provisions of N.C. Gen. Stat. § 7B-905.1. As a result of the
fact that N.C. Gen. Stat. § 7B-905.1 governs the issues
addressed in this section of our opinion for purposes of
“actions filed or pending on or after” 1 October 2013, the
proceedings to be held on remand with respect to this issue must
be governed by N.C. Gen. Stat. § 7B-905.1 rather than former
N.C. Gen. Stat. § 7B-905(c).
 -10-
Finally, Respondent-Father argues that the trial court

erred by dispensing with the necessity for future review

hearings without making the findings of fact required by N.C.

Gen. Stat. § 7B-906(b). According to N.C. Gen. Stat. § 7B-

906(b):

the court may waive the holding of review
hearings required by subsection (a) of this
section, may require written reports to the
court by the agency or person holding
custody in lieu of review hearings, or order
that review hearings be held less often than
every six months, if the court finds by
clear, cogent, and convincing evidence that:

(1) The juvenile has resided with a
relative or has been in the custody of
another suitable person for a period of
at least one year;

(2) The placement is stable and
continuation of the placement is in the
juvenile’s best interests;

(3) Neither the juvenile’s best interests
nor the rights of any party require
that review hearings be held every six
months;

(4) All parties are aware that the matter
may be brought before the court for
review at any time by the filing of a
motion for review or on the court’s own
motion; and

(5) The court order has designated the
relative or other suitable person as
the juvenile’s permanent caretaker or
guardian of the person.
 -11-
Any failure to make the findings required by N.C. Gen. Stat. §

7B-906(b) necessitates an award of appellate relief. In re

R.A.H., 182 N.C. App. 52, 61-62, 641 S.E.2d 404, 410 (2007).

In the challenged permanency planning orders, the trial

court relieved DSS and the GAL of any responsibility for further

involvement in the case, concluded that there was no need for

further monitoring of the children’s placement, and released

Respondent-Father’s counsel. As a result, the ultimate effect

of the challenged permanency planning orders was to end the

present case and dispense with the necessity for future periodic

review hearings. The trial court did not, however, make

findings addressing all of the criteria specified in N.C. Gen.

Stat. § 7B-906(b). More specifically, although the trial court

detailed the stability of the children’s placement with Jeanie

K. and found that placement of the children with Jeanie K. and

Wendy D. was in the children’s best interests, the children had

only been in that placement for eleven months at the time that

the permanency planning order was entered. As a result, the

trial court failed to adequately address the criteria specified

in N.C. Gen. Stat. § 7B-906(b)(1). In addition, the trial court

failed to make findings regarding the issues posited in N.C.

Gen. Stat. §7B-906(b)(3), which relates to the issue of whether

the juvenile’s best interests or the rights of any party require
 -12-
that additional review hearings be held in the future at six

month intervals, and N.C. Gen. Stat. § 7B-906(b)(4), which

addresses the extent to which the parties are aware that future

review proceedings can be held on the court’s own motion or as

the result of a motion filed by a party to the proceeding. As a

result, we reverse the challenged permanency planning orders and

remand this case to the Brunswick County District Court for the

entry of new orders containing appropriate findings of fact,

conclusions of law, and ordering clauses relating to the issue

of whether additional periodic review proceedings should be

held. See R.A.H., 182 N.C. App. at 62, 641 S.E.2d at 410.5

III. Conclusion

Thus, for the reasons set forth above, we conclude that the

trial court failed to adequately address the issue of

Respondent-Father’s visitation with Enid and Jake and to make

findings of fact and conclusions of law adequately addressing

the issues relevant to a determination that additional periodic

review proceedings need not be held in this matter. As a
5
The General Assembly repealed former N.C. Gen. Stat. § 7B-
906, 2013 N.C. Sess. L. c. 129, s. 25, and enacted N.C. Gen.
Stat. § 7B-906.1, 2013 N.C. Sess. L. c. 129, s. 26, “effective
October 1, 2013, and [applicable] to actions filed or pending on
or after that date.” 2013 N.C. See. L. c. 129, s. 41. As a
result of the fact that the issues formerly governed by N.C.
Gen. Stat. § 7B-906(b) are now addressed in N.C. Gen. Stat. §
7B-906.1(n), the proceedings on remand should be conducted in
accordance with N.C. Gen. Stat. § 7B-906.1(n), which differs
only slightly from former N.C. Gen. Stat. § 7B-906(b).
 -13-
result, the trial court’s orders should be, and hereby are,

reversed and this case should be, and hereby is, remanded to the

Brunswick County District Court for further proceedings not

inconsistent with this opinion.

REVERSED AND REMANDED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).