Appeal 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.
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.
McGEE, Judge.
Buncombe 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's 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 23October 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.
DSS 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' 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's appeal.
The 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.
N.C. Gen. Stat. §§ 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. § 7B-1001 provides
that "[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 underthis Article shall be before the Court of Appeals." The statute
further provides that a "final order" includes "[a]ny order of
disposition after an adjudication that a juvenile is abused,
neglected, or dependent[.]" N.C. Gen. Stat.
§ 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.
Under N.C. Gen. Stat. § 7B-1002, "[a]n appeal may be taken by
the guardian ad litem or juvenile, the juvenile's parent, guardian,
or custodian, the State or county agency." In this case,
respondent asserts that he is a proper party to appeal this order.
Respondent argues that he "was the custodian of the [c]hildren
prior to initiation of the juvenile petition[s] alleging neglect in
Buncombe County." Accordingly, respondent asserts that "he clearly
has a right to pursue the present appeal." However, DSS disputes
respondent's assertion.
N.C. Gen. Stat. § 7B-101(8) (2003) defines a "[c]ustodian" as
"[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."
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 "who has assumed the status and
obligation of a parent without being awarded the legal custody" of
the children.
In support of his contention that he was the "custodian" ofthe children prior to initiation of the petitions alleging neglect,
respondent claims to have been "made a party to the juvenile court
proceedings in Buncombe County[.]" Respondent's claim to being a
party hinges on the following: (1) that he and his wife were
listed on the petitions as "parents, guardian, custodian, or
caretaker" and (2) that he was served with a petition and summons
regarding the alleged neglect of each child.
Despite respondent's 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
"custodians" 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's attorney submitted a report to the trial court on
22 January 2003 on behalf of respondent titled "Report to the Court
on behalf of
Caretaker [Respondent]." (emphasis added). This
report stated that "[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." (emphasis added).
If, in fact, respondent qualified only as a caretaker, N.C. Gen.
Stat. § 7B-1002 does not grant him a right to appeal.
In further support of respondent's claim to being custodian of
the children, he stressed the 12 September 2002 report of the
guardian ad litem which stated that the children "are in custody of
their paternal Grandmother and paternal Grand Step-father[.]"
Again, we do not find this argument persuasive. This report
referred to the children being in the "custody" of their
grandparents and was simply the guardian ad litem's way of
specifying where the children were physically located. The use of
the term "custody" in the guardian ad litem's report does not
establish respondent's legal status with respect to the children.
We note that over time the definition of custodian has
undergone changes. Under N.C. Gen. Stat. § 7A-278(7) (1969),
custodian was defined as "a 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."
Subsequently, the General Assembly narrowed the definition and
limited custodian to only "[t]he person or agency that has been
awarded legal custody of a juvenile by a court." N.C. Gen. Stat.
§ 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, "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." It is this version of the definition that
is presently in effect.
See N.C. Gen. Stat. § 7B-101(8). Cases interpreting N.C. Gen. Stat. § 7A-278(7) have stated
that "'[t]he term "in loco parentis" means in the place of a
parent, and a "person in loco parentis" may be defined as one who
has assumed the status and obligations of a parent without a formal
adoption.'"
Shook v. Peavy, 23 N.C. App. 230, 232, 208 S.E.2d 433,
435 (1974) (quoting 67 C.J.S., "Parent and Child," § 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.
The 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 "[a] person does not stand
in loco parentis 'from the mere
placing of a child in the temporary care of other persons by a
parent or guardian of such child.'"
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, "'[t]his relationship is established only
when the person with whom the child is placed intends to assume the
status of a parent _ by taking on the obligations incidental to the
parental relationship, particularly that of support and
maintenance.'"
Id.
In the case before us, A.P. was initially placed withrespondent and B.H. around 11 March 2002 after A.P.'s mother
reported that she had been forced out of the home by A.P.'s father.
About a month later, both parents signed case plans agreeing to
participate in parenting classes. A.P.'s father also agreed to
participate in substance abuse classes and to maintain stable
housing and employment. In addition, A.P.'s 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,
A.P.'s placement was viewed as more of a temporary arrangement.
When S.P. was born 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's home to
foster care on 12 November 2002.
The 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. forapproximately 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.
In 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's 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's mother
left.
Id. Subsequently, an order was entered placing the child
with the woman who had cared for him and that woman's 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. This Court held that the respondents qualified as custodians
under N.C. Gen. Stat. § 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's 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 "explicitly referred to as parties"
in the proceedings. In light of these facts, this Court concluded
that the respondents had undertaken "the obligations of parents"
and stood
in loco parentis to the child.
Id. at 721,
233 S.E.2d at
657.
The 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.P. and S.P.
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. § 7B-1002.
Appeal dismissed.
Judges McCULLOUGH and ELMORE concur.
*** Converted from WordPerfect ***