{
  "id": 8376737,
  "name": "In re: A.R.G.",
  "name_abbreviation": "In re A.R.G.",
  "decision_date": "2006-06-20",
  "docket_number": "No. COA05-1268",
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    "judges": [
      "Judge ELMORE concurs.",
      "Judge WYNN dissents in a separate opinion."
    ],
    "parties": [
      "In re: A.R.G."
    ],
    "opinions": [
      {
        "text": "LEVINSON, Judge.\nRespondent-father purports to appeal from a permanency planning order entered pursuant to the requirements set forth in N.C. Gen. Stat. \u00a7 7B-906. The order on appeal does not constitute a final order, and this appeal must therefore be dismissed.\nIn April 2003, the Pitt County Department of Social Services (DSS) filed a petition alleging that A.R.G. was a neglected and dependent juvenile. In September 2003, the trial court adjudicated the child to be neglected and dependent; awarded custody to DSS; and ordered a goal of reunification with the mother. The trial court entered custody review orders on 26 November 2003, 26 January 2004, and 28 June 2004, under which custody with DSS and the goal of reunification with the mother remained the same. On 14 September 2004, the trial court entered an order allowing DSS to \u201cpursue permanency\u201d for A.R.G. with another family. On 2 November 2004, the mother died as a result of an automobile accident. Following a permanency planning hearing, the trial court entered an order on 25 May 2005, concluding that was in the child\u2019s best interest for DSS to pursue adoption with the current foster family and to initiate termination of respondent\u2019s parental rights. In this order, the trial court found, inter alia, that father was unaware of A.R.G.\u2019s foster residence; had sent no letters or cards to A.R.G.; first contacted the assigned social worker for A.R.G. in October, 2004; and \u201cadvocated that the permanent plan be placement of his son with his mother[.]\u201d\nThe record demonstrates that father attended four hearings, as follows:\nMay 08, 2003 Matter Continued Father appeared\nMay 21, 2003 Matter Continued Did not appear\nJuly 16, 2003 Matter Continued Did not appear\nJuly 31, 2003 Adjudication Hearing Did not appear\nOctober 23, 2003 7B-906 Hearing Did not appear\nDecember 4, 2003 7B-906 Hearing Did not appear\nMarch 4, 2004 7B-906 Hearing Did not appear\nJune 3, 2004 Matter Continued Did not appear\nJune 24, 2004 Matter Continued Did not appear\nJuly 29, 2004 Matter Continued Did not appear\nSeptember 2, 2004 Matter Continued Did not appear\nAugust 12, 2004 7B-906 Hearing Did not appear\nOctober 24, 2004 Matter Continued Did not appear\nNovember 2, 2004 Mother died\nNovember 4, 2004 \u2022 Matter Continued Father appeared\nJanuary 13, 2005 Matter Continued Father appeared\nFeb. 24/May 05, 2005 7B-906 Hearing Father appeared\nN.C. Gen. Stat. \u00a7 7B-1001 (2003), provides that appeal may be taken from \u201cany final order of the court in a juvenile matter[.]\u201d The statute defines a \u201cfinal order\u201d, and states that it includes:\n(1) Any order finding absence of jurisdiction;\n(2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;\n(3)Any order of disposition after an adjudication that a juvenile is abused, neglected, or dependent; or\n(4)Any order modifying custodial rights.\nN.C. Gen. Stat. \u00a7 7B-1001 (2003).\nIn In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003), this Court concluded that the permanency planning order on appeal constituted a \u201cdisposition order\u201d within the meaning of Section (3) of G.S. \u00a7 7B-1001 and was therefore appealable. In Weiler, the permanency planning order changed the permanent plan \u201cas to mother\u201d from reunification to adoption:\nThe present order again changed the disposition from reunification with the mother to termination of parental rights. An order that changes the permanency plan in this manner is a disposi-tional order that fits squarely within the statutory language of section 7B-1001. . . . Thus, the appeal is properly before us and petitioner\u2019s motion to dismiss is denied.\nId. at 477, 581 S.E.2d at 136-37.\nThis Court recently discussed what constitutes a \u201cfinal\u201d juvenile order, and held that \u201cthe statutory language of G.S. \u00a7 7B-1001(3), referring to an \u2018order of disposition after an adjudication that a juvenile is abused, neglected, or dependent\u2019, means the dispositional order that is entered after an adjudication [of abuse, neglect or dependency] under G.S. \u00a7 7B-905, and does not mean every permanency planning, review, or other type of order entered at some unspecified point following such a disposition.\u201d In re B.N.H., 170 N.C. App. 157, 160, 611 S.E.2d 888, 890, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005). B.N.H. further held that this Court would \u201climit the holding of Weiler to the specific facts of that case, and decline[d] to extend its reasoning further.\u201d Id. at 162, 611 S.E.2d at 891.\nIn the instant case, A.R.G. was not residing with father at the time he was removed from the custody of mother, and nothing in the record suggests reunification with father was ever the permanent plan. Every order in the record shows, instead, that the court\u2019s focus was consistently related to the viability of returning the juvenile to mother and to the specific requirements placed on her to assist in reunification efforts. The court\u2019s orders reflect that father had very little contact or involvement with this juvenile following the juvenile\u2019s removal from mother\u2019s home. Not one court order in the record either allows, encourages, or describes any type of visitation between father and A.R.G. The fact that no type of \u201creunification\u201d with father was ever a permanent plan is sufficient, in and of itself, to distinguish this appeal from Weiler, where the permanent plan as to the mother was changed from reunification to adoption. We nevertheless also observe that, in the G.S. \u00a7 7B-906 review order next-preceding the order on appeal, DSS was expressly authorized by the juvenile court to \u201cpursue permanency.\u201d Consequently, not .only was reunification with father never the plan to begin with \u2014 something that would preclude interlocutory appellate review of the subject order under B.N.H., but there also had not been any change in the permanent plan from reunification to adoption- \u2014 something essential to this Court\u2019s review of a permanency planning order in Weiler. In short, none of the provisions of G.S. \u00a7 7B-1001(l)-(4) apply, and the order on appeal is not a final order for purposes of appeal.\nWe easily conclude that both the statutory definition of a \u201cfinal order\u201d set forth in G.S. \u00a7 7B-1001, and also our holding in B.N.H. requires this Court to dismiss the subject appeal. Father\u2019s interlocutory appeal, taken without noting the grounds for appellate review or making a substantial right argument in his brief, illustrates the long delays meant to be avoided by the operation of G.S. \u00a7 7B-1001. Father did not have any type of court-sanctioned visitation with A.R.G. before the entry of the order on appeal, and there has never been any goal of reunification of A.R.G. with father. Under these circumstances, and at this juncture of this juvenile proceeding, this interlocutory appeal has. done nothing to further the interests of the juvenile or the father.\nDismissed.\nJudge ELMORE concurs.\nJudge WYNN dissents in a separate opinion.\n. This statute was amended effective October 1, 2005. We apply the version of G.S. \u00a7 7B-1001 in effect at the time the order on appeal was entered.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      },
      {
        "text": "WYNN, Judge,\ndissenting.\nThe majority dismisses this appeal by a parent as being interlocutory because it involves a review order and not a final disposition. Yet, the dispositive issue on appeal is not whether the parent challenges the \u201coutcome\u201d of the review order; instead, the issue is whether DSS may institute proceedings without complying with the statutory mandates for doing so, thus, depriving the trial court of subject-matter jurisdiction. Indeed, audaciously, DSS recognizing that its petition was statutorily deficient, prepared the proper documents after notice, of appeal was given to this Court, and by motion, asks this Court to now consider that documentation as part of the record on appeal. I would deny that motion, address this appeal which chai-lenges the subject-matter jurisdiction of the trial court, and vacate the proceedings below.\nMoreover, the review order modified the custodial rights as it changed the plan to adoption and directed DSS to pursue termination of Respondent\u2019s parental rights. Therefore, the order was appealable. N.C. Gen. Stat. \u00a7 7B-1001(4) (2004). As this order was appealable, I would address the issues and must respectfully dissent.\nThe majority cites to In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888 (2005), in support of their argument that the review order is not a final order and not appealable. In B.N.H., this Court held that a permanency planning order that does not modify custody is not a final order and not immediately appealable pursuant to N.C. Gen. Stat. \u00a7 7B-1001(3). Id. at 162, 611 S.E.2d at 891.\nHere, the previous review orders and permanency orders sought reunification with the mother, but made no mention of Respondent. The prior 14 September 2004 review order ceased reunification efforts with the mother and allowed DSS to pursue permanency for the minor child, however, again made no orders with respect to Respondent. In the 25 May 2005 review order on appeal, the trial court for the first time entered an order with respect to Respondent, that DSS should pursue termination of his rights and adoption for the minor child. As this was the first order that affected Respondent\u2019s parental rights, it is a change in custody and appealable pursuant to N.C. Gen. Stat. \u00a7 7B-1001(4). See also In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 136-37 (2003) (order that changed the disposition from reunification with the mother to termination of parental rights was appealable). Accordingly, as this order is immediately appealable I would address the issues.\nOn appeal, Respondent argues that the trial court lacked subject matter jurisdiction to enter the order of 25 May 2005 as the petition failed to contain the information required by sections 50A-209(a) and 7B-402.1 agree and would vacate the order.\nSection 50A-209(a) of the North Carolina General Statutes requires:\nIn a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child\u2019s present address or whereabouts, the places where the child has lived during, the last five years, and the names and present addresses of the persons with whom the child has lived during that period. . . .\nN.C. Gen. Stat. \u00a7 50A-209(a) (2003).\nThe record on appeal confirms that DSS never filed an affidavit of status with the trial court. Indeed, DSS did not complete an affidavit until 28 December 2005, over six months after entry of the trial court\u2019s 25 May 2005 order and Respondent\u2019s 6 June 2005 Notice of Appeal. While DSS filed a Motion to Amend the Record on 29 December 2005, asking this Court to include the affidavit of status dated 28 December 2005, I would deny that motion because the affidavit of status was never before the trial court and therefore should not be included in the record on appeal.\nNonetheless, DSS cites to In re Clark, 159 N.C. App. 75, 79, 582 S.E.2d 657, 660 (2003), in support of its argument that failure to properly file an affidavit of status is not reversible error. In Clark, the Stokes County Department of Social Services failed to file an affidavit of status at the time of the filing of the petition. Id. However, the trial court gave Stokes County DSS five days to comply, and it filed the affidavit within five days. Id. at 79-80, 582 S.E.2d at 600. This Court found that \u201c[although it remains the better practice to require compliance with section 50A-209,\u201d as the affidavit was filed prior to the trial court rendering its decision, the trial court was able to determine whether jurisdiction existed. Id.\nUnlike Clark, the trial court in this case was not able to determine whether jurisdiction existed before it rendered its decision as DSS failed to file an affidavit of status. Rather nothing in the record shows that DSS made any effort to comply with the provisions of section 50A-209(a) until well after the the trial court\u2019s decision and the Notice of Appeal had been given in this case.\nMoreover, the Petition contained in the record on appeal shows that DSS did not include the child\u2019s date of birth or address as required by section 7B-402 which states,\nThe petition shall contain the name, date of birth, address of the juvenile, the name and last known address of the juvenile\u2019s parent, . . . and shall allege the facts which invoke jurisdiction over the juvenile....\nN.C. Gen. Stat. \u00a7 7B-402 (2003).\n\u201c[N]atural parents have a constitutionally protected interest in the companionship, custody, care, and control of their children.\u201d Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530 (1997). Therefore, proceedings to terminate constitutionally protected parental rights must be conducted with fairness and due process of the law. See N.C. Gen. Stat. \u00a7 7B-100(1) (2003) (purpose of Chapter 7B is: \u201cTo provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents[.]\u201d). Section 50A-209 requires DSS to file an affidavit of status with the trial court in order to confer jurisdiction to the trial court. Compliance with this statute is a legislative requisite that in this case appears to have been neither difficult nor burdensome on DSS. The letter of the law must be followed to ensure due process of the law in terminating a parent\u2019s constitutionally protected right to parent. When, as here, DSS fails to comply with statutes conferring jurisdiction to the trial court, this Court should vacate the trial court\u2019s order.\nAs DSS failed to comply with sections 50A-209 and 7B-402 of the North Carolina General Statutes, the trial court was unable to determine whether jurisdiction existed. Therefore, I would vacate the trial court\u2019s decision.",
        "type": "dissent",
        "author": "WYNN, Judge,"
      }
    ],
    "attorneys": [
      "Anthony Hal Morris, for petitioner-appellee Pitt County Department of Social Services.",
      "Annick Lenoir-Peek, for respondent-appellant.",
      "Nancy Ray, for Guardian ad Litem."
    ],
    "corrections": "",
    "head_matter": "In re: A.R.G.\nNo. COA05-1268\n(Filed 20 June 2006)\nChild Abuse and Neglect\u2014 permanency planning order \u2014 not final \u2014 appeal interlocutory\nA permanency planning order for a neglected and dependent juvenile directing DSS to pursue adoption after the death of the mother was not a final order as set forth in N.C.G.S. \u00a7 7B-1001, and the father\u2019s appeal was dismissed as interlocutory.\nJudge Wynn dissenting.\nAppeal by respondent from order entered 25 May 2005 by Judge David A. Leech in Pitt County District Court. Heard in the Court of Appeals 11 April 2006.\nAnthony Hal Morris, for petitioner-appellee Pitt County Department of Social Services.\nAnnick Lenoir-Peek, for respondent-appellant.\nNancy Ray, for Guardian ad Litem."
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  "file_name": "0205-01",
  "first_page_order": 237,
  "last_page_order": 243
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