Traylor v. Huffman

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA14-902
NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

IN THE MATTER OF:

H.H.
Polk County
R.H. Nos. 13 JA 31-32

__________________________________

C.A.T.,
Plaintiff

v. Henderson County
No. 09-CVD-660
D.W.H.,
Defendant.

Appeal by respondent from orders entered 28 April 2014 and

28 May 2014 by Judge Peter B. Knight in Polk County District

Court and Henderson County District Court. Heard in the Court

of Appeals 3 December 2014.

Feagan Law Firm, PLLC, by Phillip R. Feagan, for
petitioner-appellee Polk County Department of Social
Services.

Michael E. Casterline for respondent.

The Opoku-Mensah Law Firm, PLLC, by Gertrude Opoku-Mensah,
for Guardian ad Litem.

DAVIS, Judge.
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C.A.T. (“Respondent”) appeals from the trial court’s 28

April 2014 review hearing order and the 28 May 2014 custody

order concerning her two minor children. On appeal, Respondent

argues that the trial court erred in (1) failing to conduct an

inquiry regarding another attorney’s substitution for

Respondent’s court-appointed counsel at the review hearing; (2)

terminating jurisdiction under Chapter 7B of the North Carolina

General Statutes following the review hearing and entering a

custody order pursuant to Chapter 50 while the underlying

adjudication order was on appeal; and (3) delegating its

judicial function of determining Respondent’s visitation rights

to the minor children’s father. After careful review, we affirm

in part and remand in part.

Factual Background

Respondent and D.W.H. (“Mr. H.”) are the parents of two

minor children: H.H. (“Heather”), age 11, and R.H. (“Rob”), age

9.1 Prior to November 2013, Heather and Rob lived primarily with

Respondent pursuant to a consent order entered on 11 April 2011

regarding the custody of the minor children. On 21 November

1
The pseudonyms “Heather” and “Rob” are used throughout this
opinion to protect the identity of the minor children and for
ease of reading. N.C.R. App. P. 3.1(b).
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2013, Respondent called 911 and requested that Heather and Rob

be picked up because she was unable to provide for their care.

After placing the call to 911, Respondent called Mr. H., and he

agreed to care for Heather and Rob. Respondent arranged to meet

Mr. H. that evening in the parking lot of a shopping center in

Hendersonville, North Carolina. As she was driving the children

to meet Mr. H., she told them that she was “going to jail

because she abused them and that the juveniles would not see her

anymore.” She then made the children wait outside the car in

the dimly-lit parking lot until Mr. H. arrived while she

remained inside the vehicle. Mr. H. picked up Heather and Rob

and brought them to his home.

On 3 December 2013, the Polk County Department of Social

Services (“DSS”) filed petitions alleging that Heather was a

neglected and dependent juvenile and that Rob was an abused,

neglected, and dependent juvenile. Both petitions also alleged

that Respondent had attempted to regain physical custody of the

children by filing a motion for emergency custody the day

before. The trial court conducted a hearing on the petitions on

14 January 2014 and entered an order on 25 February 2014

adjudicating Heather neglected and dependent and adjudicating

Rob abused, neglected, and dependent. The trial court concluded
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that it was in the children’s best interests that DSS maintain

legal custody of them and that they remain placed with Mr. H.

Respondent appealed the adjudication order to this Court in In

re H.H., No. COA14-650, ___ N.C. App. ___, ___ S.E.2d ___

(filed Dec. 2, 2014).2

On 22 April 2014, the trial court held a 90-day review

hearing on the 25 February 2014 order removing the children from

Respondent’s custody. Respondent was initially present at the

proceeding but left the courtroom shortly thereafter and, as a

result, did not participate in this hearing. At the hearing,

the trial court received the reports and recommendations of DSS

and the guardian ad litem and heard testimony from Guy Shearer

(“Mr. Shearer”), the DSS social worker assigned to Heather’s and

Rob’s cases. On 28 April 2014, the trial court entered an order

(1) terminating DSS’s legal custody of Heather and Rob based on

its determination that State intervention in the matter was no

longer necessary; and (2) granting full custody, care, and

control of the children to Mr. H. The trial court proceeded to

2
In H.H., this Court affirmed the trial court’s adjudications of
Heather and Rob as neglected juveniles and its adjudication of
Rob as an abused juvenile but reversed its adjudications of
dependency as to both children. Id. at ___, ___ S.E.2d at ___.
We also vacated the portion of the order requiring Respondent to
maintain stable housing and employment. Id. at ___, ___ S.E.2d
at ___.
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enter a custody order in the parties’ civil custody case on 28

May 2014 granting Mr. H. sole legal and physical custody of

Heather and Rob and providing Respondent with supervised

visitation with the children. Respondent appeals from the trial

court’s 28 April and 28 May 2014 orders.

Analysis

I. Substitution of Counsel

Respondent’s first argument on appeal is that the trial

court erred by failing to inquire into whether the legal

representation of Respondent by Ryan Bradley (“Mr. Bradley”) at

the review hearing was in accordance with the North Carolina

Office of Indigent Defense Services (“IDS”) rules regarding

representation by court-appointed counsel. Pursuant to N.C.

Gen. Stat. § 7A-498.3, IDS is authorized to promulgate rules and

procedures in connection with its mandate to provide quality

representation to indigent clients who are entitled by law to

legal representation. Under the Indigent Defense Services Act,

codified in Article 39B of Chapter 7A of the North Carolina

General Statutes, the appointment and representation of indigent

clients by appointed counsel must follow the rules and

procedures adopted by IDS. N.C. Gen. Stat. § 7A-498.3(c)

(2013); see also State v. Webb, ___ N.C. App. ___, ___, 742
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S.E.2d 284, 286 (2013) (“Our General Statutes state that counsel

shall be appointed in accordance with rules adopted by the

Office of Indigent Defense Services.” (citation, internal

quotation marks, and alteration omitted)).

Here, the record indicates that Rick Daniel (“Mr. Daniel”)

was appointed by the court to represent Respondent. However, at

the review hearing, Mr. Bradley, an attorney who practices with

Mr. Daniel, appeared instead on Respondent’s behalf. Under the

IDS rules concerning the appointment of counsel,

[t]he attorney named in the appointment
order shall not delegate to another attorney
any material responsibilities to the client,
including representation at critical stages
of the case, unless the court finds in open
court that the substitute attorney practices
in the same law firm as the appointed
attorney and is on the list of attorneys who
are eligible for appointment to the
particular case, that the client and the
substitute attorney both consent to the
delegation, and that the delegation is in
the best interests of the client.

IDS Rule 1.5(d)(2) (2013). Respondent contends that the trial

court’s failure to make findings in open court regarding this

substitution of counsel in accordance with the above rule

constituted reversible error.

Our Court recently addressed this issue in Webb, ___ N.C.

App. at ___, 742 S.E.2d at 286-87. We explained that where the
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trial court acts contrary to the statutory mandate requiring it

to make findings regarding the substitution of counsel, such

action does not necessarily rise to the level of reversible

error. Id. at ___, 742 S.E.2d at 286. Rather, appellants “must

show not only that a statutory violation occurred, but also that

they were prejudiced by this violation.” Id. at ___, 742 S.E.2d

at 287. To demonstrate prejudice, the party must show that

“there is a reasonable possibility that, had the error in

question not been committed, a different result would have been

reached . . . .” N.C. Gen. Stat. § 15A-1443 (2013).

In the present case, Respondent has failed to demonstrate

to this Court how she was prejudiced by the trial court’s

failure to make findings concerning Mr. Bradley’s ability to

serve as her attorney at the review hearing. Respondent chose

to leave the courtroom and not participate in the proceeding

despite Mr. Bradley’s cautioning her as to “the likelihood of

the Court’s ruling should she choose not to stay.”

At the review hearing, Mr. Shearer testified that

Respondent had failed to complete any of the recommended anger

management and conflict resolution courses, had not obtained a

psychological evaluation as required by her case plan, and —

other than an online parenting class — had failed to take steps
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to comply with the DSS case plan. Mr. Shearer also testified

that it was DSS’s recommendation that custody be given to Mr. H.

as he had “completed all services that have been asked of him

and the children seem to be happy in his care.” The guardian ad

litem and the Jackson County Department of Social Services,

which had also been involved in the case, likewise recommended

that legal custody be given to Mr. H. As such, given the

evidence presented by DSS and the fact that Respondent elected

not to participate in the hearing, we cannot say that the

outcome of the proceeding would likely have been different if

the trial court had inquired into the circumstances regarding

the substitution of counsel.

II. Termination of Jurisdiction Under Chapter 7B

Respondent next contends that the trial court erred by

terminating jurisdiction under Chapter 7B while her appeal of

the adjudication order was pending. We disagree.

N.C. Gen. Stat. § 7B-1003, the statute governing the

disposition of juvenile cases pending appeal, provides, in

pertinent part, as follows

(b) Pending disposition of an appeal, unless
directed otherwise by an appellate court . .
. the trial court shall:

(1) Continue to exercise jurisdiction
and conduct hearings under this
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Subchapter with the exception of
Article 11 of the General
Statutes; and

(2) Enter orders affecting the custody
or placement of the juvenile as
the court finds to be in the best
interests of the juvenile.

N.C. Gen. Stat. § 7B-1003(b) (2013).

This statute makes clear that the trial court continues to

possess jurisdiction over a juvenile matter and may address and

modify custodial arrangements while an appeal is pending. See

In re M.I.W., 365 N.C. 374, 377, 722 S.E.2d 469, 472 (2012)

(explaining that in enacting N.C. Gen. Stat. § 7B-1003, “the

General Assembly recognized that the needs of the child may

change while legal proceedings are pending on appeal”). We do

not, however, read N.C. Gen. Stat. § 7B-1003 as compelling the

trial court to retain Chapter 7B jurisdiction during the entire

time in which an appeal is pending, as such a reading would

restrict the trial court’s ability to address changing

circumstances 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.” N.C. Gen. Stat. § 7B-1003(b)(2).

Chapter 7B of the General Statutes specifically authorizes

a trial court to “determine whether or not jurisdiction in the

juvenile proceeding should be terminated and custody of the
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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.” N.C.

Gen. Stat. § 7B-911 (2013). In order to terminate jurisdiction

in the juvenile proceeding and award custody of the child to a

parent under Chapter 50, the trial court must make findings and

conclusions that support the entry of a custody order or, if the

child is already the subject of a civil custody order, make

findings and conclusions that support the modification of the

existing custody order. N.C. Gen. Stat. § 7B-911(c)(1).

Finally, the trial court must make the following findings:

a. There is not a need for continued State
intervention on behalf of the juvenile
through a juvenile court proceeding.

b. At least six months have passed since the
court made a determination that the
juvenile’s placement with the person to whom
the court is awarding custody is the
permanent plan for the juvenile, though this
finding is not required if the court is
awarding custody to a parent or to a person
with whom the child was living when the
juvenile petition was filed.

N.C. Gen. Stat. § 7B-911(c)(2).

Here, the trial court followed this statutory procedure

when terminating jurisdiction over the juvenile proceeding and

entering its order modifying the parties’ prior civil custody.

In its orders, the trial court determined that “[t]here no
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longer exists a need for continued State intervention on behalf

of these children as their father has provided a safe, stable

home for their continued residence.” The trial court also noted

that the children were residing with Mr. H. when the juvenile

petitions were filed, thereby eliminating the necessity for a

finding concerning the passage of time and the permanent plan

for the children under N.C. Gen. Stat. § 7B-911(c)(2)(b).

In its order modifying custody, the trial court made

findings of fact regarding the substantial change in

circumstances that had occurred since the entry of the prior

custody order. Specifically, the court found that (1)

Respondent had admitted to engaging in physical violence toward

Rob and repeatedly hitting him with a belt; (2) Respondent had

refused to enter into a safety plan or otherwise cooperate with

DSS; (3) Respondent called 911 requesting that someone pick up

the minor children because she could not care for them; (4)

Respondent ultimately brought the minor children to Mr. H. and

he assumed care of them; (5) Heather and Rob have been enrolled

in the school district where Mr. H. resides and have been

excelling in school since being placed with him; (6) Respondent

has failed to exercise visitation or contact the children since

they were removed from her custody; (7) DSS has concluded that
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Mr. H. is a fit and proper person to have custody of the

children; (8) Heather was adjudicated neglected and dependent on

14 January 2014; (9) Rob was adjudicated abused, neglected, and

dependent on 14 January 2014; and (10) Respondent had failed to

complete her court-ordered case plan. Respondent has not

challenged any of these findings on appeal.

While this Court very recently reversed the trial court’s

determination that Heather and Rob were dependent juveniles in

our opinion concerning the underlying adjudication order because

they were living with Mr. H. — a parent who is willing and able

to provide for their care and supervision, H.H., ___ N.C. App.

at ___, ___ S.E.2d at ___, we believe that the trial court’s

findings nevertheless demonstrate a substantial change in

circumstances warranting modification even without the

adjudication of dependency. Indeed, the trial court’s order

makes clear that Respondent’s physical abuse of Rob, her

voluntary relinquishment of custody to Mr. H., her refusal to

cooperate with DSS, and the fact that the children were thriving

in Mr. H.’s care, were the primary grounds for its conclusion

that a substantial change in circumstances affecting the welfare

of the children had occurred. We also note that our decision in

H.H. concerning the adjudication order did not order any further
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proceedings that would require the trial court to reassert

jurisdiction over the children under Chapter 7B. Id. at ___,

___ S.E.2d at ___. Accordingly, we hold that the trial court

acted within its authority in terminating jurisdiction under

Chapter 7B and entering the custody order pursuant to Chapter 50

while Respondent’s appeal of the adjudication order was pending.

III. Visitation

Respondent’s final argument is that the trial court erred

in the portions of its orders addressing Respondent’s visitation

rights with Heather and Rob. In the decretal portion of both

orders, the trial court awarded Respondent a minimum of one hour

per week of supervised visitation with the children “as arranged

upon [Respondent’s] reasonable request to [Mr. H.], and as

supervised by [Mr. H.] or someone satisfactory to [Mr. H.].”

Respondent contends that this award of visitation was

insufficient in providing a minimum outline of the circumstances

under which she may exercise her visitation with Heather and

Rob.

Our Court has previously explained that when a trial court

awards visitation to a parent, it is “required to provide a plan

containing a minimum outline of visitation, such as the time,

place, and conditions under which visitation may be exercised.”
 -14-
In re T.H., ___ N.C. App. ___, ___, 753 S.E.2d 207, 219 (2014);

see also In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647, 652

(2005) (“An appropriate visitation plan must provide for a

minimum outline of visitation, such as the time, place, and

conditions under which visitation may be exercised.”).

In In re W.V., 204 N.C. App. 290, 295, 693 S.E.2d 383, 387

(2010), we held that the trial court’s order awarding the

respondent “weekly visitations supervised by petitioner” was

insufficient to establish a minimum outline for visitation and

required remand “for clarification of the visitation plan.”

Similarly, in In re J.P., ___ N.C. App. ___, ___, 750 S.E.2d

543, 548 (2013), we concluded that the visitation portion of the

trial court’s order was inadequate where it merely required the

petitioner to offer supervised visitation to the respondent

every other week and failed to make findings and conclusions “as

to the time, place, and conditions of an appropriate visitation

plan.”

While the provision for visitation in the present case is

slightly more detailed than those at issue in W.V. and J.P., we

do not believe that it comports with the guidelines established

by our prior cases, which are intended to safeguard a parent’s

rights to visitation. See E.C., 174 N.C. App. at 522, 621
 -15-
S.E.2d at 652 (“[T]he 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.” (citation, quotation marks,

and brackets omitted)). The trial court’s orders do not provide

any guidance as to where visits should occur and leave

significant discretion to Mr. H. in scheduling visits,

determining who shall supervise the visits, deciding the

duration of the visits (beyond the minimum requirement of one

hour per week), and imposing any other conditions relating to

visitation. Accordingly, we remand for additional findings and

conclusions as to an appropriate visitation plan for Respondent

that provides, at a minimum, the time, place, and conditions of

Respondent’s visits in file number 09 CVD 660. See J.P., ___

N.C. App. at ___, 750 S.E.2d at 548; W.V., 204 N.C. App. at 295,

693 S.E.2d at 387.

Conclusion

For the reasons stated above, we affirm in part and remand

in part.

AFFIRMED IN PART; REMANDED IN PART.

Judges ELMORE and BELL concur.

Report per Rule 30(e).
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