{ "id": 9000381, "name": "IN THE MATTER OF: A.P & S.P.", "name_abbreviation": "In re A.P.", "decision_date": "2004-08-17", "docket_number": "No. COA03-1516", "first_page": "841", "last_page": "847", "citations": [ { "type": "official", "cite": "165 N.C. App. 841" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "233 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 17, "year": 1977, "pin_cites": [ { "page": "656" }, { "page": "719-20" }, { "page": "656" }, { "page": "720" }, { "page": "656-57" }, { "page": "657" }, { "page": "721" }, { "page": "657" }, { "page": "719" }, { "page": "656" }, { "page": "721" }, { "page": "657" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553432 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "719" }, { "page": "721-22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0718-01" ] }, { "cite": "267 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562261, 8562198, 8562231, 8562300, 8562174 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0378-04", "/nc/300/0378-02", "/nc/300/0378-03", "/nc/300/0378-05", "/nc/300/0378-01" ] }, { "cite": "263 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551066 ], "year": 1980, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0701-01" ] }, { "cite": "456 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790208, 790112, 790085, 790184 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0113-01", "/nc/340/0113-04", "/nc/340/0113-02", "/nc/340/0113-03" ] }, { "cite": "449 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523966 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0044-01" ] }, { "cite": "210 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "24 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550610 ], "year": 1974, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc-app/24/0307-01" ] }, { "cite": "208 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "435", "parenthetical": "quoting 67 C.J.S., \"Parent and Child,\" \u00a7 71, p. 803" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549215 ], "year": 1974, "pin_cites": [ { "page": "232", "parenthetical": "quoting 67 C.J.S., \"Parent and Child,\" \u00a7 71, p. 803" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0230-01" ] } ], "analysis": { "cardinality": 608, "char_count": 15126, "ocr_confidence": 0.728, "pagerank": { "raw": 1.4834225217009428e-07, "percentile": 0.661534128051481 }, "sha256": "03060f50234e03e4a8ed8db347859a70c73e2fb0a1214e45b434a37f35c0bec5", "simhash": "1:47a83123f82a0f5d", "word_count": 2522 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concur." ], "parties": [ "IN THE MATTER OF: A.P & S.P." ], "opinions": [ { "text": "McGEE, Judge.\nBuncombe County Department of Social Services (DSS) filed a petition dated 7 August 2002 alleging that A.P. was a neglected juvenile. DSS filed a separate petition dated 15 August 2002 alleging that S.P. was a neglected juvenile. The petitions alleging neglect of A.P. and S.P. (collectively the children) listed the following persons as the children\u2019s parents, guardian, custodian, or caretaker: J.P. and J.P. (as mother and father, collectively parents), B.H. as paternal grandmother, and S.H. (respondent) as paternal step-grandfather. In an order entered 23 October 2002, the trial court adjudicated the children neglected, ordered that temporary custody of the children be granted to DSS with placement in the discretion of DSS, and ordered that visits between the children and their parents be suspended until further hearings. The trial court again ordered that custody of the children remain with DSS in an order entered 18 November 2002.\nDSS filed a motion to cease visitation between the children and B.H. on 7 February 2003. In an order filed 10 March 2003, the trial court ordered that the children remain in the custody of DSS but further ordered reunification with the parents as the best plan for the children. In an order filed 9 April 2003, the trial court allowed DSS\u2019 motion to cease visitation and ordered that visitation between the children and B.H. cease. In an order filed 24 June 2003, the trial court ordered that the children remain in the custody of DSS, that the best plan for the children was adoption, and that all visits between the children and all family members be suspended. Respondent appeals. In a motion filed 11 December 2003, guardian ad litem of the children moved this Court to dismiss respondent\u2019s appeal.\nThe issue before this Court is whether respondent, as paternal step-grandfather of the children, is an appropriate party to appeal the 24 June 2003 order.\nN.C. Gen. Stat. \u00a7\u00a7 7B-1001 and 7B-1002 (2003) designate when a right to appeal exists in a juvenile matter and which persons possess the right to appeal. N.C. Gen. Stat. \u00a7 7B-1001 provides that \u201c[u]pon motion of a proper party as defined in G.S. 7B-1002, review of any final order of the court in a juvenile matter under this Article shall be before the Court of Appeals.\u201d The statute further provides that a \u201cfinal order\u201d includes \u201c[a]ny order of disposition after an adjudication that a juvenile is abused, neglected, or dependent^]\u201d N.C. Gen. Stat. \u00a7 7B-1001(3) (2003). In this case, the order from which respondent appeals is an order of disposition after the children were adjudicated neglected. Accordingly, there is no dispute that the order is appealable.\nUnder N.C. Gen. Stat. \u00a7 7B-1002, \u201c[a]n appeal may be taken by the guardian ad litem or juvenile, the juvenile\u2019s parent, guardian, or custodian, the State or county agency.\u201d In this case, respondent asserts that he is a proper party to appeal this order. Respondent argues that he \u201cwas the custodian of the [cjhildren prior to initiation of the juvenile petitions] alleging neglect in Buncombe County.\u201d Accordingly, respondent asserts that \u201che clearly has a right to pursue the present appeal.\u201d However, DSS disputes respondent\u2019s assertion.\nN.C. Gen. Stat. \u00a7 7B-101(8) (2003) defines a \u201c[c]ustodian\u201d as \u201c[t]he person or agency that has been awarded legal custody of a juvenile by a court or a person, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a court.\u201d There is no question that respondent has not been awarded legal custody of the children. However, the analysis must focus on whether respondent qualifies as one \u201cwho has assumed the status and obligation of a parent without being awarded the legal custody\u201d of the children.\nIn support of his contention that he was the \u201ccustodian\u201d of the children prior to initiation of the petitions alleging neglect, respondent claims to have been \u201cmade a party to the juvenile court proceedings in Buncombe County[.]\u201d Respondent\u2019s claim to being a party hinges on the following: (1) that he and his wife were listed on the petitions as \u201cparents, guardian, custodian, or caretaker\u201d and (2) that he was served with a petition and summons regarding the alleged neglect of each child.\nDespite respondent\u2019s argument, we do not find that he was the custodian of the children simply because he and his wife were listed on the petitions. Rather, a juvenile petition sets forth the names of persons who fit within any one of four categories, including parent, guardian, custodian, and caretaker. A petition also designates the relationship or title each listed person has with respect to the child or children involved. In the petitions at issue, J.P. and J.P. were named as mother and father. B.H. and respondent were also named in the petitions. However, they were designated simply as paternal grandmother and paternal step-grandfather. The fact that respondent and his wife were not deemed \u201ccustodians\u201d in the petitions is evidence indicating they were listed simply because they fulfilled the role of caretakers. Further evidence that respondent was merely a caretaker is the fact that respondent\u2019s attorney submitted a report to the trial court on 22 January 2003 on behalf of respondent titled \u201cReport to the Court on behalf of Caretaker [Respondent].\u201d (emphasis added). This report stated that \u201c[Respondent] and his wife [] have had [A.P.] in their home often throughout her life and have an established relationship with [A.P.] as primary caretakers.\u201d (emphasis added). If, in fact, respondent qualified only as a caretaker, N.C. Gen. Stat. \u00a7 7B-1002 does not grant him a right to appeal.\nIn further support of respondent\u2019s claim to being custodian of the children, he stressed the 12 September 2002 report of the guardian ad litem which stated that the children \u201care in custody of their paternal Grandmother and paternal Grand Step-father[.]\u201d Again, we do not find this argument persuasive. This report referred to the children being in the \u201ccustody\u201d of their grandparents and was simply the guardian ad litem\u2019s way of specifying where the children were physically located. The use of the term \u201ccustody\u201d in the guardian ad litem\u2019s report does not establish respondent\u2019s legal status with respect to the children.\nWe note that over time the definition of custodian has undergone changes. Under N.C. Gen. Stat. \u00a7 7A-278(7) (1969), custodian was defined as \u201ca person or agency that has been awarded legal custody of a child by a court, or a person other than parents or legal guardian who stands in loco parentis to a child.\u201d Subsequently, the General Assembly narrowed the definition and limited custodian to only \u201c[t]he person or agency that has been awarded legal custody of a juvenile by a court.\u201d N.C. Gen. Stat. \u00a7 7A-517(11) (1995). However, the definition was again changed, effective 27 October 1998, and broadened to include, in addition to one who had been awarded legal custody, \u201ca person, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a court.\u201d It is this version of the definition that is presently in effect. See N.C. Gen. Stat. \u00a7 7B-101(8).\nCases interpreting N.C. Gen. Stat. \u00a7 7A-278(7) have stated that \u201c \u2018[t]he term \u201cin loco parentis\u201d means in the place of a parent, and a \u201cperson in loco parentis\u201d may be defined as one who has assumed the status and obligations of a parent without a formal adoption.\u2019 \u201d Shook v. Peavy, 23 N.C. App. 230, 232, 208 S.E.2d 433, 435 (1974) (quoting 67 C.J.S., \u201cParent and Child,\u201d \u00a7 71, p. 803). See also Morgan v. Johnson, 24 N.C. App. 307, 308, 210 S.E.2d 503, 504 (1974). Thus, the current definition of custodian and the 1969 version essentially have the same meaning.\nThe concept of in loco parentis has been addressed in the context of whether parental immunity exists in tort actions. For example, Liner v. Brown, 117 N.C. App. 44, 449 S.E.2d 905 (1994), disc. review denied and cert. denied, 340 N.C. 113, 456 S.E.2d 315 (1995) involved the issue of whether the defendants stood in loco parentis to a child who drowned in their swimming pool. In that case, our Court analyzed the meaning of in loco parentis and stated that \u201c[a] person does not stand in loco parentis \u2018from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child.\u2019 \u201d Liner, 117 N.C. App. at 49, 449 S.E.2d at 907 (quoting State v. Pittard, 45 N.C. App. 701, 703, 263 S.E.2d 809, 811, disc. review denied, 300 N.C. 378, 267 S.E.2d 682 (1980)). Rather, \u201c \u2018[t]his relationship is established only when the person with whom the child is placed intends to assume the status of a parent \u2014 by taking on the obligations incidental to the parental relationship, particularly that of support and maintenance.\u2019 \u201d Id.\nIn the case before us, A.R was initially placed with respondent and B.H. around 11 March 2002 after A.P.\u2019s mother reported that she had been forced out of the home by AP.\u2019s father. About a month later, both parents, signed case plans agreeing to participate in parenting classes. A.P.\u2019s father also agreed to participate in substance abuse classes and to maintain stable housing and employment. In addition, A.P.\u2019s mother agreed to follow up with therapy and maintain stable housing and employment. The fact that both parents signed a case plan and made commitments to participate in programs is evidence that they did not intend for A.P. to remain with respondent and B.H. indefinitely. Rather, AP.\u2019s placement was viewed as more of a temporary arrangement.\nWhen S.P. was bom in May 2002, she remained with her parents because DSS thought the parents had made progress. However, the parents began having problems, and on 13 August 2002, respondent and B.H. signed a kinship agreement in which they agreed to provide placement for S.P. In orders entered 23 October 2002 and 18 November 2002, the trial court ordered that temporary custody of the children remain with DSS. In addition, DSS was given discretion for placement of the children, including, but not limited to the home of respondent and B.H. After allegations of sexual abuse, the children were moved from respondent\u2019s home to foster care on 12 November 2002.\nThe evidence does not indicate that respondent and B.H. assumed the role and status of parents to the children. First, the children spent only a relatively short amount of time with respondent and B.H. before they were moved to foster care. The evidence shows that A.P. lived with respondent and B.H. for approximately eight months while S.P. lived with them for only about three months. Second, the children were not simply abandoned by their parents. Rather, when A.P. was first placed with respondent and B.H., her parents made efforts to improve parenting skills, to maintain a suitable environment for her, and to restore the parent-child relationship. Similarly, the parents made efforts regarding S.P. until the kinship agreement was signed. Thus, we conclude that the children were merely placed in the temporary care of respondent and B.H. Under Liner, such placement does not warrant the conclusion that respondent was standing in loco parentis to the children.\nIn contrast to the case before us, In re Kowalzek, 32 N.C. App. 718, 233 S.E.2d 655 (1977) provides an example of when individuals do qualify as custodians with standing to challenge a custody order. Kowalzek involved a child whose mother left him with his father when the child was about one year old. Kowalzek, 32 N.C. App. at 719, 233 S.E.2d at 656. About three months after his mother left, the child\u2019s father was killed in an accident. Id. By emergency order, the child was placed in the physical custody of a woman who had begun to care for the child when the child\u2019s mother left. Id. Subsequently, an order was entered placing the child with the woman who had cared for him and that woman\u2019s sister (the respondent). Id. After a full hearing, the child was placed with the respondent and her husband (collectively the respondents). Id. at 719-20, 233 S.E.2d at 656. Subsequently, custody was modified and the child was placed with his mother. Id. at 720, 233 S.E.2d at 656-57.\nThis Court held that the respondents qualified as custodians under N.C. Gen. Stat. \u00a7 7A-278(7) and thus had standing to appeal. Kowalzek, 32 N.C. App. at 721-22, 233 S.E.2d at 657. This conclusion was based on the fact that the child had been in the physical custody of the respondents; the respondents had supported the child for several months; and the respondents had expressed a desire to keep the child permanently. Id. at 721, 233 S.E.2d at 657. Furthermore, it is noteworthy that the child\u2019s mother had failed to acknowledge the child when she applied for public assistance after leaving her husband and the child. Id. at 719, 233 S.E.2d at 656. In addition, she had failed to seek any information about the child after her husband was killed. Id. Also, the respondents had been \u201cexplicitly referred to as parties\u201d in the proceedings. In light of these facts, this Court concluded that the respondents had undertaken \u201cthe obligations of parents\u201d and stood in loco parentis to the child. Id. at 721, 233 S.E.2d at 657.\nThe case before us differs from Kowalzek in several significant ways. First, the child in Kowalzek was essentially without a natural parent because he had been abandoned by his mother and his father had been killed. Second, the respondents in Kowalzek were explicitly considered parties in the custody proceedings. In contrast, in our case, both parents made efforts to maintain a parent-child relationship with A.R and S.R Furthermore, respondent and B.H. were not made parties to the actions. Rather, they were merely listed on the petitions. Accordingly, respondent lacks standing to appeal under N.C. Gen. Stat. \u00a7 7B-1002.\nAppeal dismissed.\nJudges McCULLOUGH and ELMORE concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Buncombe County Department of Social Services, by Renae S. Alt, for petitioner-appellee.", "Michael N. Tousey for Guardian ad Litem.", "Mercedes O. Chut for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: A.P & S.P.\nNo. COA03-1516\n(Filed 17 August 2004)\nChild Abuse and Neglect\u2014 standing to appeal \u2014 juvenile neglect \u2014 paternal step-grandparent\nAn appeal by a paternal step-grandfather from an order in a child neglect case was dismissed for lack of standing. Although respondent asserted that he was a proper party because he was a custodian of the children prior to the petitions alleging neglect, the conclusion that respondent was standing in loco paren-tis to the children is not warranted. The evidence indicates that the children were merely placed in the temporary care of respondent and the grandmother with the parents making efforts to maintain a parent-child relationship. While respondent and the grandmother were listed on the petitions, they were not parties to the actions.\nAppeal by respondent from order entered 24 June 2003 by Judge Shirley H. Brown in District Court, Buncombe County. Heard in the Court of Appeals 16 June 2004.\nBuncombe County Department of Social Services, by Renae S. Alt, for petitioner-appellee.\nMichael N. Tousey for Guardian ad Litem.\nMercedes O. Chut for respondent-appellant." }, "file_name": "0841-01", "first_page_order": 873, "last_page_order": 879 }