IN RE: S.H. and A.K. Guilford County
No. 03 J 197
03 J 198
Appeal by respondent from order entered 25 March 2003 by Judge
Patrice A. Hinnant in Guilford County District Court. Heard in the
Court of Appeals 20 May 2004.
Guilford County Deputy County Attorney Lynne G. Schiftan for
petitioner-appellee Guilford County Department of Social
Services.
Angela H. Brown, for respondent-appellant.
LEVINSON, Judge.
Respondent (Elizabeth Kendrick) appeals from an order entered
at a hearing on the need for continued nonsecure custody pending
adjudication of a petition alleging neglect. We remand.
On 7 March 2003 the Guilford County Department of Social
Services (DSS) filed separate petitions alleging that respondent's
minor children, S.H. and A.K., were neglected.
(See footnote 1)
On the same day,
an order for nonsecure custody placed A.K. in the custody of DSS.
On 12 March 2003 a hearing was held on the need for continuednonsecure custody, pursuant to N.C.G.S. § 7B-506.
Following
this
hearing the trial court entered a single order which referenced
both juveniles' court file numbers. This order recited findings of
fact related to the criteria for continued nonsecure custody set
forth in G.S. § 7B-503, et seq., and made the following conclusions
of law:
1. There is a reasonable factual basis to believe that
the matters alleged in the petition are true, and that
there is [sic] no reasonable means other than continued
non-secure custody available to protect the juvenile.
2. Reasonable efforts were made to eliminate the need
for removal of the children.
Accordingly, the trial court (1) placed A.K. “in the legal and
physical custody of his father”; (2) continued S.H. in the
nonsecure custody of DSS; (3) required S.H. to remain in her
current placement; and (4) set the matter for a subsequent 7-day
hearing and a “hearing on the petition” on a different date.
Respondent appeals.
Respondent's arguments on appeal challenge the trial court's
authority to place A.K. in his father's custody when it had
“terminated this action” as to A.K. Respondent contends the trial
court was divested of jurisdiction to enter further orders as to
custody once it dismissed the petition alleging neglect. In its
brief, DSS agrees the trial court terminated its jurisdiction as toA.K. by virtue of its dismissal of the petition alleging neglect.
The contention that the trial court dismissed the petition
alleging neglect as to A.K. and simultaneously terminated its
jurisdiction is supported by the transcript, in which the trial
court observed that (1) the allegations in the petition “[did] not
involve [A.K.'s father] in any way”; (2) A.K.'s father was present
in court “for the purpose[] of assuming responsibility” for A.K.;
and (3) that the court's placement of A.K. with his father
“terminates the action as it relates to [A.K.].”
However, while the trial court may have intended to dismiss
the neglect petition as to A.K., the written order entered by the
court does not accomplish this. Instead, as regards A.K., the
order (1) makes findings of fact and conclusions of law related to
G.S. § 7B-503 and 7B-506; (2) places A.K. in the custody of his
father, as authorized by G.S. § 7B-505; and (3) establishes a court
date for an adjudicatory hearing. The order does not dismiss the
petition alleging neglect.
We conclude the trial court's order neither dismisses the
neglect petition as to A.K. nor terminates its jurisdiction over
the child. Instead, the order appears to continue A.K. in the
nonsecure custody of his father pending adjudication of the
petition.
Though not essential to our holding, we also note that thetrial court does not have the authority to dismiss a petition at a
hearing on the need for continued nonsecure custody.
In re
Guarante, 109 N.C. App. 598, 600, 427 S.E.2d 883, 884 (1993) (at
hearing to determine need for continued custody the trial court
“had the discretion to either continue nonsecure custody or to
return the children to their home. He did not have the authority
to dismiss the petitions[.]”).
We also note that, as argued by both DSS and respondent, when
a trial court does terminate its jurisdiction, it loses the
authority to enter additional orders regarding custody.
See In re
Dexter, 147 N.C. App. 110, 115, 553 S.E.2d 922, 925 (2001) (where
children adjudicated neglected by mother and placed with father and
court then terminated its jurisdiction in the matter “the trial
court had no further duty or authority to conduct reviews”).
Furthermore, upon termination of an action and dismissal of a
petition, the trial court's order placing a juvenile in the
temporary nonsecure custody of an individual would be prospectively
ineffectual.
See In re Ivey, 156 N.C. App. 398, 401, 576 S.E.2d
386, 389 (2003) (“Without [a juvenile] petition, the trial court
did not have the jurisdiction to order DSS to assume nonsecure
custody of [the child].”). Under such circumstances, the trial
court's dismissal of a petition would return a juvenile's parents
to their pre-petition legal status, enabling them to seek ajudicial determination of child custody pursuant to Chapter 50 of
the North Carolina General Statutes.
In sum, we conclude the trial court's order neither dismisses
the neglect petition as to A.K. nor terminates its jurisdiction
over the child. Because respondent's principal argument on appeal
challenges the trial court's authority to place A.K. in the custody
of his father when it has terminated its jurisdiction, an issue not
before this Court, we overrule this assignment of error but remand
for the entry of an amended order
(See footnote 2)
or the adjudication of the
petition alleging neglect.
Remanded.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
Footnote: 1 This appeal only concerns A.K.
Footnote: 2 For example, if D
SS dismisses its petition alleging
neglect as to A.K., the trial court could amend its order to
reflect such and conclude it was no longer asserting jurisdiction
as to A.K.
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