{ "id": 8237049, "name": "IN THE MATTER OF: A.P., Minor child", "name_abbreviation": "In re A.P.", "decision_date": "2006-09-05", "docket_number": "No. COA05-565", "first_page": "420", "last_page": "425", "citations": [ { "type": "official", "cite": "179 N.C. App. 420" } ], "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": "615 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633417, 12633418 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/615/0865-01", "/se2d/615/0865-02" ] }, { "cite": "611 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632728 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "891", "parenthetical": "holding that orders where the court merely continues directive changes issued in previous orders are not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0888-01" ] }, { "cite": "623 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634716 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0061-01" ] }, { "cite": "581 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "158 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188114 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/158/0473-01" ] }, { "cite": "359 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798082, 3795365, 3797350, 3794823, 3804744, 3796621, 3795799 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0632-01", "/nc/359/0632-04", "/nc/359/0632-03", "/nc/359/0632-07", "/nc/359/0632-06", "/nc/359/0632-02", "/nc/359/0632-05" ] }, { "cite": "170 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004641 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0157-01" ] }, { "cite": "175 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351617 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0240-01" ] } ], "analysis": { "cardinality": 502, "char_count": 10264, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20166001956098598 }, "sha256": "d9985c000f2c4d22ab70845d151c15d4b5533173d22a4f49d20bd5926fea96f4", "simhash": "1:78973f6bf8290e00", "word_count": 1706 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge LEVINSON concurs by separate opinion.", "LEVINSON, Judge concurring with separate opinion." ], "parties": [ "IN THE MATTER OF: A.P., Minor child" ], "opinions": [ { "text": "ELMORE, Judge.\nThis case arises from a custody dispute between A.P.\u2019s mother (respondent), the Forsyth County Department of Social Services (DSS), and A.P.\u2019s biological father, William. For the reasons stated herein, we dismiss respondent\u2019s appeal.\nOn 7 November 2003 DSS filed a petition alleging: 1) that A.P. was a neglected and dependent juvenile, and 2) that immediate non-secure custody by DSS was needed to protect A.P. DSS filed the petition after their initial intervention into A.P.\u2019s life failed to rectify the circumstances needing attention. DSS had received numerous reports that A.P. was living in an environment injurious to her welfare because her mother and legal father, respondent and Roy, were using drugs, fighting at home, stealing from local merchants, and were not properly caring for A.P. Respondent consented to the placement of A.P. with DSS and at the 9 January 2004 hearing on neglect and dependency did not oppose the allegations in the petition.\nAs such, the district court granted custody of A.P. to DSS with placement to be \u201cat the discretion of that Agency.\u201d A reunification plan was set, and supervised visitation was ordered for all parties. Further, the district court ordered that:\n6. William [D.H.] shall comply with the homestudy in Surry County as scheduled by the Department of Social Services for possible placement of [A.P.]\n7. The Forsyth County Department of Social Services shall make all necessary investigations as to William [H.\u2019s] suitability to parent [A.P.]\n9. This matter shall be reviewed on February 18, 2004 at 11:45 a.m., or on prior motion of any of the parties.\nPrior to this time, respondent informed DSS that William [D.H.] (William) was likely A.P.\u2019s biological father, not Roy as she had indicated to everyone at A.P.\u2019s birth. DSS located William in Surry County, and he had previously been ordered to submit to a paternity test along with Roy. William was proven to be A.P.\u2019s biological father and, as such, began legitimization proceedings. Once he determined that A.P. was his, he expressed strong interest in raising A.P. and being a part of her life.\nAt the 18 February 2004 review hearing the district court ordered custody to remain with DSS and sanctioned A.P.\u2019s placement with her biological father William.\n1. Legal custody of [A.P.] shall remain with Forsyth County Department of Social Services and her placement shall be at the discretion of that Agency.\n2. The Court sanctions the placement of [A.P.] in the home of her biological father, William [D.H.] in Surry County. Forsyth County DSS is to monitor the placement and provide a written report to all counsel prior to the next hearing in compliance with the local rules.\nRespondent filed notice of appeal from that order.\nRespondent\u2019s order, however, is not a dispositional order from which appeal can be taken. See In re C.L.S., 175 N.C. App. 240, 623 S.E.2d 61 (2005); In re B.N.H., 170 N.C. App. 157, 611 S.E.2d 888, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005). The order arising from the 9 January 2004 hearing gave custody of A.P. to DSS and gave DSS the discretion to place A.R where it saw fit. Presumptively, according to the district court\u2019s order, this included placing A.P. with William pending an appropriate conclusion from his home study. The 17 March 2004 order arising from the 18 February 2004 hearing does not change that.\nUnlike the order in In re Weiler, [158 N.C. App. 473, 581 S.E.2d 134 (2003),] where the actual order appealed from changed the status quo of the relationship between the parents and the minor, here there is no change in the status quo. Custody of the minor was given to DSS by a previous order, thus the order appealed from did not alter the disposition of the child.\nIn re C.L.S., 175 N.C. App. at 242, 623 S.E.2d at 63. As such, it is not an appealable order pursuant to N.C. Gen. Stat. \u00a7 7B-1001 (2003). See In re B.N.H., 170 N.C. App. at 161-62, 611 S.E.2d at 891 (holding that orders where the court merely continues directive changes issued in previous orders are not immediately appealable). Because the 17 March 2004 order of the district court continuing custody with DSS is not an appealable final order as contemplated by N.C. Gen. Stat. \u00a7 7B-1001, we dismiss respondent\u2019s appeal.\nDismissed.\nJudge WYNN concurs.\nJudge LEVINSON concurs by separate opinion.\nLEVINSON, Judge concurring with separate opinion.\nI write to clarify my reasons for dismissing this appeal.\nThe majority opinion relies heavily upon this Court\u2019s discussions in In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003), and In re BNH, 170 N.C. App. 157, 611 S.E.2d 888, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005), to explain why the custody review order on appeal is not immediately appealable pursuant to N.C. Gen. Stat. \u00a7 7B-1001. Weiler and BNII concerned appeals of permanency planning orders. The majority essentially holds that, because there have not been any changes in custody since the order next-preceding the custody review order on appeal, it is not immediately appealable. In my view, no custody review order entered pursuant to N.C. Gen. Stat. \u00a7 7B-906 is immediately appealable as a matter of right pursuant to Subsection 3 of G.S. \u00a7 7B-1001(a).\nA close reading of BNH reveals that (1) custody review orders, permanency planning orders, and other miscellaneous juvenile orders are not \u201cdispositional\u201d orders as contemplated by G.S. \u00a7 7B-1001 (a)(3) \u2014 and that the order of disposition after an adjudication language contained in G.S. \u00a7 7B-1001(3) refers to orders entered after an adjudication that a child is neglected, abused or dependent pursuant to N.C. Gen. Stat. \u00a7 7B-905; and (2) Weiler would be limited to its specific facts \u2014 that permanency planning orders that change an existing permanent plan from reunification to adoption are immediately appealable.\nThe current order on appeal does not fall within any of the provisions for appellate review by right contained in the former version of G.S. \u00a7 7B-1001: the order does not find an absence of jurisdiction; does not, in effect, determine the action and prevent a judgment from which an appeal might be taken; is not an order of disposition after an adjudication that the child is abused, neglected or dependent (for the reasons set forth in detail in BNH); and is not an order that changes custody. For all these reasons, there is no right of appeal from the 17 March 2004 custody review order on appeal.\nIn my view, no custody review order entered pursuant to G.S. \u00a7 7B-906 falls within Subsection 3 of G.S. \u00a7 7B-1001(a). And it is my view that this Court is obligated to accept for appellate review under G.S. \u00a7 7B-1001 (a)(3) only those permanency planning orders that mirror the specific circumstances in Weiler. This appeal reveals a disagreement by mother of the trial court\u2019s decision to sanction the placement of the child with father should Social Services exercise its discretion to do so. This is a juvenile matter that first and foremost concerns the child; it is captioned In re for a reason. It is a proceeding concerning the circumstances surrounding the child \u2014 the child\u2019s status as abused, neglected and/or dependent that implicate the involvement of the juvenile court. The differences between Chapter 50 custody disputes and Chapter 7B proceedings are too numerous to enumerate here. While mother has a right to be heard with respect to where the court places A.R, this is a juvenile matter that was initiated by Social Services and concerns this juvenile\u2019s status and circumstances. The juvenile court is vested with wide discretion at a required series of hearings to make a number of decisions about where to place the child; what requirements, if any, to place on the caretaker(s) and/or parents; what might be done to further the permanency goals for the child; and a host of other requirements. Making a custody placement is only one of many decisions confronting the juvenile court at all of these hearings. Where frequent appeals are taken in juvenile matters, permanency and finality cannot be obtained.\nBy adopting the language it did in G.S. \u00a7 7B-1001, the General Assembly thoughtfully precluded individuals from obstructing the permanency requirements needed by juveniles who are within the jurisdiction of our courts. By adopting the language it did in G.S. \u00a7 7B-1001, the General Assembly protected the rights and interests of parents by allowing them appeals as a matter of right at particular junctures in a juvenile matter. And by adopting the language it did in G.S. \u00a7 7B-1001, the General Assembly necessarily recognized the truism that some intermediate decisions by the juvenile court will evade appellate review as a matter of right.\nThis appeal, like so many others I have seen, has done nothing to further the real interests and needs of the juvenile or the mother who appealed. Allowing the parents, the juvenile, the trial court, and this Court to expend the time and energy associated with this appeal\u2014 and allowing everyone involved to wait on absolutely nothing \u2014 are the only obvious errors appearing on this record.\n. The order on appeal implicates the former version of G.S. \u00a7 7B-1001. The new version became effective October 1, 2005, and is applicable to all petitions or actions filed on or after that date. All of my comments in this concurring opinion concern the former version of the statute.\n. BNH and Weiler were published by this Court before the amended version of G.S. \u00a7 7B-1001 became law.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Katharine Chester for appellant respondent-mother.", "Robert T. Newman for appellee respondent-legal father.", "Gary C. Rhodes for appellee respondent-biological father." ], "corrections": "", "head_matter": "IN THE MATTER OF: A.P., Minor child\nNo. COA05-565\n(Filed 5 September 2006)\nChild Abuse and Neglect\u2014 continuing custody with DSS \u2014 not an appealable final order\nA custody review order continuing custody of a child with DSS (with placement with the biological father sanctioned) was not an appealable final order as contemplated by N.C.G.S. \u00a7 7B-1001, and the mother\u2019s appeal was dismissed.\nJudge Levinson concurring.\nAppeal by respondent-mother from order entered 17 March 2004 by Judge Denise S. Hartsfield in Forsyth County District Court. Heard in the Court of Appeals 18 April 2006.\nKatharine Chester for appellant respondent-mother.\nRobert T. Newman for appellee respondent-legal father.\nGary C. Rhodes for appellee respondent-biological father." }, "file_name": "0420-01", "first_page_order": 452, "last_page_order": 457 }