{ "id": 8176597, "name": "IN THE MATTER OF: H.S.F.", "name_abbreviation": "In re H.S.F.", "decision_date": "2007-04-17", "docket_number": "No. COA06-1608", "first_page": "739", "last_page": "744", "citations": [ { "type": "official", "cite": "182 N.C. App. 739" } ], "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": "628 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635580 ], "year": 2006, "pin_cites": [ { "page": "389", "parenthetical": "quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0387-01" ] }, { "cite": "628 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635585 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0416-01" ] }, { "cite": "633 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636485, 12636486, 12636487 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/633/0817-01", "/se2d/633/0817-02", "/se2d/633/0817-03" ] }, { "cite": "625 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635104, 12635105, 12635106, 12635107, 12635108, 12635109, 12635110, 12635111, 12635112, 12635113, 12635114, 12635115, 12635116, 12635100, 12635101, 12635102, 12635103 ], "opinion_index": 0, "case_paths": [ "/se2d/625/0916-04", "/se2d/625/0916-05", "/se2d/625/0916-06", "/se2d/625/0916-07", "/se2d/625/0916-08", "/se2d/625/0916-10", "/se2d/625/0916-11", "/se2d/625/0916-12", "/se2d/625/0916-13", "/se2d/625/0916-14", "/se2d/625/0916-15", "/se2d/625/0916-16", "/se2d/625/0916-17", "/se2d/625/0916-09", "/se2d/625/0916-01", "/se2d/625/0916-02", "/se2d/625/0916-03" ] }, { "cite": "462 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "\"Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.\"" } ], "opinion_index": 0 }, { "cite": "341 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793212 ], "year": 1995, "pin_cites": [ { "parenthetical": "\"Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0702-01" ] }, { "cite": "447 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "483" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523314 ], "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0250-01" ] }, { "cite": "597 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "722", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987016 ], "year": 2004, "pin_cites": [ { "page": "518", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0512-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "177 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301051 ], "year": 2006, "pin_cites": [ { "page": "154", "parenthetical": "quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0151-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "355 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170056 ], "year": 1987, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0484-01" ] }, { "cite": "177 N.C. App. 193", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301083 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/177/0193-01" ] }, { "cite": "360 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790365, 3795301, 3789994, 3798602, 3787890, 3792500, 3796951, 3787645, 3789086 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0534-03", "/nc/360/0534-01", "/nc/360/0534-08", "/nc/360/0534-04", "/nc/360/0534-02", "/nc/360/0534-06", "/nc/360/0534-07", "/nc/360/0534-05", "/nc/360/0534-09" ] }, { "cite": "176 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 541, "char_count": 11337, "ocr_confidence": 0.745, "pagerank": { "raw": 1.5467765064944428e-07, "percentile": 0.6739502959438948 }, "sha256": "9dc224f7a02afec5e047e8ffdfce3765f8aeb20b88d0f126a8f3cc25f6a08d60", "simhash": "1:d3ef916276fe9ee1", "word_count": 1860 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "IN THE MATTER OF: H.S.F." ], "opinions": [ { "text": "TYSON, Judge.\nC.B. (\u201crespondent\u201d) appeals from order entered awarding legal custody of her minor child, H.S.F., to the child\u2019s father, J.F., and shared physical custody of H.S.F. between J.F. and her maternal grandfather, T.A. We affirm.\nI. Background\nThis is the third appeal concerning this minor child. On 14 July 1990, respondent and J.F. were married. H.S.F. was born on 19 January 1993. Respondent and J.F. divorced and respondent later remarried. After her parent\u2019s divorce, H.S.F. resided primarily with respondent. H.S.F. and J.F. have maintained in contact with each other.\nOn 28 January 2004, the Cleveland County Department of Social Services (\u201cDSS\u201d) filed a petition that alleged H.S.F. was a neglected juvenile because she lived in an injurious environment with respondent. DSS asserted respondent\u2019s home was an injurious environment due to domestic violence that had occurred between respondent and her second husband, H.S.F.\u2019s stepfather.\nOn 28 January 2004 and 4 February 2004, the trial court entered non-secure custody orders. H.S.F. was placed into DSS\u2019s non-secure custody, who placed her with J.F. and her paternal grandmother. On 16 April 2004, J.F. filed a motion in the cause for legal and physical custody of H.S.F.\nOn 9 April 2004, after an adjudication and dispositional hearing, the trial court concluded: (1) joint legal custody of H.S.F. was placed with respondent and J.F.; (2) primary physical custody was placed with J.F.; and (3) DSS\u2019s custody was terminated. Respondent appealed to this Court after the resulting order was filed on 14 May 2004. On 21 February 2006, this Court affirmed the trial court\u2019s order. See In re H.S.F., 176 N.C. App. 189, 625 S.E.2d 916 (unpublished), disc. rev. denied, 360 N.C. 534, 633 S.E.2d 817 (2006).\nIn September 2004, a review hearing was conducted and the trial court ordered continued joint legal custody of H.S.F. with respondent and J.F., but changed primary physical custody from J.F. to respondent. The trial court also ordered \u201cphysical placement\u201d of H.S.F. with her maternal grandfather, T.A. J.F. appealed to this Court. On 18 April 2006, this Court reversed the trial court\u2019s order and remanded the case to the trial court for further proceedings. See In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416 (2006).\nUpon remand on 11 July 2006, the trial court entered a review order that required an update from all parties on H.S.F.\u2019s status. On 6 September 2006, a review hearing was conducted.\nThe trial court made extensive findings of fact and concluded it was in H.S.F.\u2019s best interest that legal custody be placed with J.F. and physical custody be shared jointly between J.F. and T.A., with H.S.F.\u2019s primary residence placed with T.A. Secondary custody was placed with J.F. in the form of visitation. The trial court also decreed that: (1) \u201cthe jurisdiction of this court is expressly terminated as to this action, pursuant to N.C.G.S. 7B-201 and 7B-911[;]\u201d and (2) \u201c[pursuant] to N.C.G.S. 7B-911, the Clerk of Court shall open a Chapter 50 file under the following caption: [J.F.], Plaintiff vs. [Respondent], Defendant and [T.A.], Defendant.\u201d Respondent appeals from this order.\nOn 6 September 2006, the trial court initiated a Chapter 50 civil custody action entitled. The resulting civil custody order was entered on 31 October 2006. Neither respondent nor J.F. appealed from this order.\nII. Issues\nRespondent argues: (1) the trial court\u2019s findings of fact failed to support its conclusion of law that it is in H.S.F.\u2019s best interest that legal custody be granted to J.F. and (2) the trial court violated N.C. Gen. Stat. \u00a7 7B-911(c).\nIII. Standard of Review\nRespondent argues the trial court\u2019s findings of fact do not support its conclusion of law that it is in H.S.F.\u2019s best interest to grant legal custody to J.F. We disagree.\n\u201c[Findings of fact made by the trial court. . . are conclusive on appeal if there is evidence to support them.\u201d Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987). \u201cWhere no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). \u201cThe trial court\u2019s \u2018conclusions of law are reviewable de novo on appeal.\u2019\u201d In re J.S.L., G.T.L., T.L.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)).\nIV. Legal Custody\nHere, uncontested findings of fact support the trial court\u2019s conclusion of law that it is in H.S.F.\u2019s best interest to grant legal custody to her father, J.F. The trial court found that:\n9. [J.F.] has exercised alternating weekend visitation with [H.S.F.] in his home, pursuant to the September 17, 2004 court order.\n26. [H.S.F.] has exercised regular visitation with her father [J.F.]. The visits have gone well and [H.S.F.] enjoys a loving relationship with her father.\n38. [J.F.] is the biological father of [H.S.F.]. There is no evidence he has abrogated his constitutional rights to parent [H.S.F.]. There is no evidence [J.F.] is an unfit parent.\n39. That, however, when questioned at this hearing about his desires, [J.F.] stated that he did not want to disrupt [H.S.F.\u2019s] situation by having her live with him permanently. When asked about having custody of his daughter [J.F.] stated \u201cI\u2019d take her.\u201d\nJ.F.\u2019s fitness and ability to provide proper care to and supervision of H.S.F. was not contested and has never been an issue in the juvenile proceedings before the trial court or this Court. In contrast, the trial court made numerous uncontested findings of fact that demonstrate respondent\u2019s unfitness and inability to provide proper care for H.S.F. The trial court\u2019s uncontested findings of fact support its conclusion it was in H.S.F.\u2019s best interest that legal custody be granted to J.F. This assignment of error is overruled.\nV. N.C. Gen. Stat. \u00a7 7B-911\nRespondent argues the trial court violated N.C. Gen. Stat. \u00a7 7B-911(c). Respondent asserts the trial court: (1) failed to make sufficient findings of fact and conclusions of law to support the entry of a custody order \u201cunder G.S. CH. 50, per G.S. 7B-911(c)(1)\u201d and (2) failed to find \u201cthere was not a need for continued state intervention on behalf of the juvenile per G.S. 7B-911 (c)(2).\u201d We disagree.\nN.C. Gen. Stat. \u00a7 7B-911(c) (2005) states, in relevant part:\n(c) The court may enter a civil custody order under this section and terminate the court\u2019s jurisdiction in the juvenile proceeding only if:\n(1) In the civil custody order the court makes findings and conclusions that support the entry of a custody order in an action under Chapter 50 of the General Statutes or, if the juvenile is already the subject of a custody order entered pursuant to Chapter 50, makes findings and conclusions that support modification of that order pursuant to G.S. 50-13.7; and\n(2) In a separate order terminating the juvenile court\u2019s jurisdiction in the juvenile proceeding, the court finds:\na. That there is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding; and\nb. That at least six months have passed since the court made a determination that the juvenile\u2019s 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(Emphasis supplied).\nN.C. Gen. Stat. \u00a7 7B-911 is entitled, \u201cCivil child-custody order.\u201d N.C. Gen. Stat. \u00a7 7B-911(c) applies only when atrial court \u201center[s] a civil custody order under this section and terminate [s] the court\u2019s jurisdiction in [a] juvenile proceeding[.]\u201d\nWhen interpreting a statute, our Supreme Court has stated:\nThe primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. The foremost task in statutory interpretation is to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise. Where the statutory language is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language.\nCarolina Power & Light Co. v. The City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (internal citations and quotations omitted).\nHere, respondent noticed an appeal only from the trial court\u2019s review order. Respondent failed to appeal from the trial court\u2019s subsequent civil custody order. According to the statutes\u2019 plain and definite meaning, the requirements of N.C. Gen. Stat. \u00a7 7B-911(c) only apply to civil custody orders and not review orders. Respondent failed to appeal from the trial court\u2019s civil custody order entered pursuant to N.C. Gen. Stat. \u00a7 7B-911(c) and this Court has no jurisdiction to hear respondent\u2019s appeal. See Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995) (\u201cWithout proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.\u201d). This assignment of error is dismissed.\nVI. Conclusion\nThe trial court\u2019s uncontested findings of fact support its conclusion it was in H.S.F.\u2019s best interest that legal custody be granted to J.F. Respondent noticed appeal from the trial court\u2019s review order and failed to notice appeal from the trial court\u2019s subsequent civil custody order pursuant to N.C. Gen. Stat. \u00a7 7B-911(c). This Court acquired no jurisdiction to consider respondent\u2019s assignment of error under N.C. Gen. Stat. \u00a7 7B-911(c). The trial court\u2019s order is affirmed.\nAffirmed.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Charles E. Wilson, Jr., for petitioner-appellee Cleveland County Department of Social Services.", "Hall & Hall Attorneys at Law, PC, by Susan P. Hall, for respondent-appellant.", "Rebekah W. Davis, for respondent father-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: H.S.F.\nNo. COA06-1608\n(Filed 17 April 2007)\n1. Child Abuse and Neglect\u2014 best interests of juvenile\u2014 findings\nThe uncontested findings supported the trial court\u2019s conclusion that it was in a juvenile\u2019s best interest for legal custody to be with her father where the father\u2019s fitness and ability to provide proper care and supervision were not contested, and there were numerous uncoritested findings that demonstrated .respondent mother\u2019s unfitness and inability to provide proper care.\n2. Appeal and Error\u2014 custody of child \u2014 assignment of error \u2014 review order only\nThe respondent in a proceeding to determine custody of a juvenile appealed only from the trial court\u2019s review order and not from the court\u2019s subsequent civil custody order, so that the Court of Appeals acquired no jurisdiction to consider respondent\u2019s assignment of error regarding findings under N.C.G.S. \u00a7 7B-911(e)(l). According to the plain and definite meaning of the statute, it applies only to civil custody orders.\nAppeal by respondent mother from order entered 14 September 2006 by Judge Anna F. .Foster in Cleveland County District Court. Heard in the Court of Appeals 26 March 2007.\nCharles E. Wilson, Jr., for petitioner-appellee Cleveland County Department of Social Services.\nHall & Hall Attorneys at Law, PC, by Susan P. Hall, for respondent-appellant.\nRebekah W. Davis, for respondent father-appellee." }, "file_name": "0739-01", "first_page_order": 771, "last_page_order": 776 }