2. Child Abuse and Neglect_child welfare reviews_procedure_not frozen at first
petition
N.C.G.S. § 7B-600(b), and the relevant amended portion of 7B-906(b), apply to child
welfare reviews commenced after 1 October 2000, including this action. Even though the
current version of the statutory scheme was not the law when the child was placed under the care
of guardians, the operative effect of theses two statutes is procedural and does not alter the legal
consequences of conduct completed prior to their enactment. Freezing the governing procedure
in child welfare cases when the first petition is filed would create an unworkable system, given
the longevity and fluidity of custody proceedings.
Appeal by respondent from order entered on 2 December 2003
by Judge Lisa V.L. Menefee, in District Court in Forsyth County.
Heard in the Court of Appeals 1 March 2005.
Theresa A. Boucher, for Forsyth County Department of Social
Services.
Jonathan Leonard, for the guardians of the minor child.
Womble, Carlyle Sandridge & Rice, by John Still, for
Guardian ad Litem.
Lisa S. Costner, for respondent.
HUDSON, Judge. On 23 May 2003, Respondent moved to regain legal and
physical custody of her minor child, J.D.C., who was in legal
custody of the Forsyth County Department of Social Services
(“DSS”) and under the guardianship of J.D.C's grandparents, Perry
and Judy Smith. The Smiths filed a response and motion to
dismiss. On 2 December 2003, Judge Lisa V.L. Menefee ordered
that legal custody and guardianship of J.D.C. remain with the
Smith
s. Respondent appeals. For the reasons discussed below, we
reverse and remand.
On 9 April 1999, DSS filed a petition alleging that J.D.C.,
then three months old, was a neglected juvenile. DSS removed
J.D.C. from the home the same day. J.D.C.'s father, Daniel
Clifton, had been convicted of felony child abuse of another
infant son in 1996 and served eighteen months in prison for this
offense. DSS also received a report that Mr. Clifton sexually
abused his seven-year-old step-sister; he
was convicted of First
Degree Rape in 2000 and received a twenty-six year prison
sentence. Respondent lived with her infant son, J.D.C., and Mr.
Clifton at the time of the DSS investigation and removal.
On 12 April 1999, the court held a non-secure custody
hearing, attended by both Mr. and Mrs. Clifton.
At a second non-
secure custody hearing on 13 May 1999, the court placed J.D.C. inthe custody of his grandmother, Judy Smith. In June 1999 the
court adjudicated J.D.C. a neglected juvenile and held a
dispositional hearing pursuant to N.C. Gen. Stat. §
7A-640
(1999), continuing legal custody of J.D.C. with DSS and placement
with the Smiths. The court ordered Respondent to complete
certain services to facilitate reunification with J.D.C. In
September 1999, a periodic review hearing was held pursuant N.C.
Gen. Stat. §
7B-906 and the court granted legal guardianship and
custody of J.D.C. to his grandparents, the Smiths. The court
held two more periodic reviews in 2000, each time continuing
guardianship and custody with the Smiths, as well as delineating
what the Respondent needed to do in order to regain custody. At
the 17 May 2000 review, the court ordered that there be no
further reviews in this case.
In May 2002, Respondent filed a motion for review requesting
custody of J.D.C. She filed subsequent motions in August 2002
and May 2003, all requesting return of custody of her son, based
upon her compliance with previous reunification requirements
ordered by the court and upon changed circumstances. The court
heard arguments regarding what standard of proof would be applied
at the hearing and decided that pursuant to N.C. Gen. Stat. §
7B-
600(b)
(2002), “[t]he Court specifically finds that it shall be
[Respondent's] burden to show that continued legal guardianshipof [J.D.C.] with Perry and Judy Smith is not in the child's best
interest.” The case was subsequently continued and Respondent
filed an amended motion in the cause where she challenged the
applicability of N.C. Gen. Stat. §
600(b). However, on 29
October 2003,
in the hearing on the motion for custody, the court
did apply this standard, requiring Respondent to show that
the
relationship between the guardians and J.D.C. was no longer in
the best interest of the child, or that the guardians were
unwilling, unable or unfit, or that they had neglected their
duties as guardians. The court found that Respondent failed to
make such a showing and dismissed her motion.
[1] Respondent argues that the trial court applied the
incorrect standard at the hearing on her motion. Because this is
a question of law, we review it de novo. See Mohr v. Mohr, 155
N.C. App. 421, 423, 573 S.E.2d 729, 731 (2002). As mentioned,
the court conducted the hearing pursuant to N.C. Gen. Stat. §
7B-
600(b). N.C. Gen. Stat. §
7B-600, entitled “Appointment of
guardian” confers power on the court to appoint a guardian of the
person for the juvenile, to be supervised by the court, when “no
parent appears in a
hearing with the juvenile or when the court
finds it would be in the best interests of the juvenile.” N.C.
Gen. Stat. §
7B-600
(a) (2002). Subsection (a) also defines the
scope of the guardian's authority and states that such authoritywill continue “until the guardianship is terminated by court
order, until the juvenile is emancipated . . . or until the
juvenile reaches the age of majority.” Id. Subsection (b)
governs termination of the guardianship as follows:
In any case where the court has determined that the
appointment of a relative or other suitable person as
guardian of the person for a juvenile is in the best
interest of the juvenile and has also made findings in
accordance with G.S. 7B-907 that guardianship is the
permanent plan for the juvenile, the court may not
terminate the guardianship or order that the juvenile
be reintegrated into a parent's home unless the court
finds that the relationship between the guardian and
the juvenile is no longer in the juvenile's best
interest, that the guardian is unfit, that the guardian
has neglected a guardian's duties, or that the guardian
is unwilling or unable to continue assuming a
guardian's duties.
N.C. Gen. Stat. §
7B-600(b)
(emphasis added). Thus, in applying
section
7B-600(b) here,
the court placed the burden of proof on
Respondent to show that the guardianship should be terminated and
it refused to hear evidence regarding her fitness as a parent or
whether reunification was in the best interest of J.D.C.
Respondent asserts that application of this standard was
erroneous because no findings that guardianship was the permanent
plan for J.D.C.
had been made pursuant to N.C. Gen. Stat. §
7B-
907
.
We agree.
The record reflects multiple orders continuing guardianship
of J.D.C. with the Smiths, pursuant to N.C. Gen. Stat. § 7B-906
.N.C. Gen. Stat. § 7B-906 (2002), entitled “Review of custody
order,” states in pertinent part that:
(a) In any case where custody is removed from a parent,
guardian, custodian, or caretaker the court shall
conduct a review hearing within 90 days from the date
of the dispositional hearing and shall conduct a review
hearing within six months thereafter. . .
.
Id. N.C. Gen. Stat. §
7B-906(b) states that “[t]he court may not
waive or refuse to conduct a review hearing if a party files a
motion seeking the review.” Id. This provision allows parents
to seek review, as Respondent did here. It also requires that
where the child has an appointed guardian and “the court has also
made findings in accordance with G.S. 7B-907 that guardianship is
the permanent plan for the juvenile, the court shall proceed in
accordance with G.S. 7B-600(b).” Id.
N.C. Gen. Stat.
§ 7B-907
(2002), on the other hand, governs “permanency planning
hearings,” and requires that:
(a) In any case where custody is removed from a parent,
guardian, custodian, or caretaker, the judge shall
conduct a review hearing designated as a permanency
planning hearing within 12 months after the date of the
initial order removing custody, and the hearing may be
combined, if appropriate, with a review hearing
required by G.S. 7B-906. The purpose of the permanency
planning hearing shall be to develop a plan to achieve
a safe, permanent home for the juvenile within a
reasonable period of time.
Id. (emphasis added).
While hearings under sections 7B-906 and 7B-907 have many
similarities, they remain separate and distinct statutory
requirements, and one cannot suffice for the other. See In re
R.T.W.,359 N.C. 539, 614 S.E.2d 489 (2005)
; In re B.N.H., 170
N.C. App. 157, disc. review denied, 359 N.C. 632, 615 S.E.2d 865
(2005)
;
In re Harton,
156 N.C. App. 655, 577 S.E.2d 334 (2003)
.
Our juvenile code balances the important, and sometimes competing
interests of family reunification, permanency for the child, and
the best interest of the child. See N.C. Gen. Stat § 7B-100;
R.T.W., 359 N.C. at 543, 614 S.E.2d at 492
. “The permanency
planning process in Article 9 is meant to bring about a
definitive placement plan for the abused, neglected, or dependent
child.”
R.T.W., 359 N.C. at 546, 614 S.E.2d at 494.
On the
other hand,
[i]t is clear from the statutory framework of the
Juvenile Code that one of the essential aims, if not
the essential aim, of the dispositional hearing and the
review hearing is to reunite the parent(s) and the
child, after the child has been taken from the custody
of the parent(s).
In re Shue, 311 N.C. 586, 596, 319 S.E.2d 567, 573 (1984)
(interpreting former N.C. Gen. Stat. §
7A-657, which governed
review of custody orders prior to the 1999 recodification of the
Juvenile Code
).
Here, the record indicates that the court held multiple
review hearings pursuant to section 7B-906, but never held a
hearing pursuant to section 7B-907. Although the court may have
intended to combine the permanency planning and review hearings,
as allowed by section 7B-907, our review of the record indicates
that all hearings were designated in the court orders as periodic
review hearings, pursuant to section
7B-906(a).
Moreover, our
careful review of the record reveals that the court never made a
finding that guardianship was the permanent plan for J.D.C., as
required by §
§
7B-906(b) and 7B-600(b). Indeed, in the record
there are no findings regarding permanency, no orders relieving
DSS of reunification efforts,
and in each order the court sets
forth requirements for Respondent's reunification with J.D.C.
Thus, we hold that the court erred here in applying N.C. Gen.
Stat. §
7B-600(b) and imposing the burden of proof on Respondent.
The North Carolina Supreme Court has held
that the burden of
proof in a review hearing does not rest on a parent trying to
regain custody. Shue, 311 N.C. at 595-96, 319 S.E.2d at 573. In
Shue, the mother sought to regain custody of her child after the
court had removed the child and granted permanent custody to the
father. Id. at 590, 319 S.E.2d
at 570. The review hearing in
Shue took place pursuant to the former N.C. Gen. Stat. §
7A-657,
which governed review of custody orders prior to the 1999recodification of the Juvenile Code. In Shue, the Court held
that § 7A-657 did not place any burden of proof upon the mother
and that the trial court thus erred. Id. at 597
, 319 S.E.2d
at
573-74. The Court noted that section 7A-657
contemplates that a child may be returned to the
parent(s) from whose custody it was taken if the trial
court finds sufficient facts to show that the child
will receive proper care and supervision from the
parent(s). However, before the custody is restored to
that parent, the trial court also must find that such
placement . . . is deemed to be in the best interest of
the [child].
Id. at 596,
319 S.E.2d
at 573
(emphasis and alterations in
original).
At the time Shue was decided the requirements of section 7B-
600(b) did not exist; however, we find Shue instructive where the
court conducts a 7B-906(b)
review and 7B-600(b) is not
applicable. In enacting section 7B-600(b), we believe that the
legislature intended to balance the goal of family reunification,
with permanency, another important goal of the Juvenile Code.
Thus, it places the burden of proof on a parent seeking review
where guardianship is the permanent plan, so as not to disrupt
the child's permanency, but not where the court has yet to set
guardianship as the permanent plan.
We hold that where there has
been no finding that guardianship is the permanent plan, pursuantto N.C. Gen. Stat. §
7B-907,
section
7B-600(b) is inapplicable,
and
the court may not impose the burden of proof upon the parent.
In Shue, the Court opined that the intent of the statute was
that evidence be presented to the trial court so that it could
determine what was in the best interest of the minor. Id. The
Court then held that the trial court should have heard evidence
that the mother intended to present, because evidence
determinative of the minor's best interest was critical. Id. at
597-98, 319 S.E.2d at 574.
Similarly, we conclude that here
the
court should have conducted the hearing to
consider information from the parent, the juvenile, the
guardian, any foster parent, relative, or preadoptive
parent providing care for the child, the custodian or
agency with custody, the guardian ad litem, and any
other person or agency that will aid in its review . .
. to determine the needs of the juvenile and the most
appropriate disposition.
N.C. Gen. Stat. §
7B-906(c) (2002).
[2] Appellees argue that the
requirement of
a finding of
guardianship as the permanent plan pursuant to
§
7B-907
was not
required here, as §
7B-600(b) was not the law when J.D.C. was
placed under the care of guardians.
The current version of the
statute became effective 1 October 2000. The previous version of
the statute, N.C. Gen. Stat.
§
7B-600
, which was in effect when
J.D.C. was first adjudicated in 1999, did not include subsection
(b) or the requirement that the court have made a finding thatguardianship was the permanent plan pursuant to section 7B-907.
However, we conclude that
N.C. Gen. Stat.
§
7B-600(b) was in
effect at the time of the 2002 hearing here.
Appellees argue that the law in effect when the child was
removed from his home should continue to apply to any related
proceedings, but do not cite any law supporting this contention.
“The application of a statute is deemed 'retroactive' or
'retrospective' when its operative effect is to alter the legal
consequences of conduct or transactions completed prior to its
enactment.” Gardner v. Gardner, 300 N.C. 715, 718, 268 S.E.2d
468, 471 (1980). Generally, “statutes or amendments pertaining
to procedure are usually held to operate retrospectively, absent
a clear expression of legislative intent to the contrary.” Id.
at 718, 268 S.E.2d
at 470. Here, we conclude that the operative
effect of
N.C. Gen. Stat.
§
7B-600(b), and the amended portion of
§
7B-906(b) which refers to §
7B-600(b)
,
do not alter the legal
consequences of conduct completed prior to their enactment,
rather they are procedural in nature.
Furthermore, although the legislature did not explicitly
state whether the provisions at issue here applied to reviews of
cases opened prior to the effective date of the amendments, we
conclude that any other interpretation would contravene the
intent of the Juvenile Code. The General Assembly's explicit desire to preserve
parent-child relationships and protect children
explains the fluidity of child custody proceedings . .
. . These proceedings afford the trial court multiple
opportunities to consider and reconsider whether a
child is abused, neglected, or dependent, and if so,
who should have custody. They also give parents time to
correct the deficiencies that led to the child's
removal. Essentially, there is no such thing as a
'final' custody order, only the most recent one.
R.T.W., 359 N.C. at 545, 614 S.E.2d at 493.
If the laws
governing procedure in child welfare cases were frozen in time
when the first petition was filed, this would create an
unworkable system given the longevity and fluidity of custody
proceedings. When the Juvenile Code was reformed and recodified
in 1999, the changes were applicable to abuse, neglect, and
dependency reports, petitions, and reviews commenced on or after
the effective date of the new statutes. 1999 N.C. Sess. Laws
202. We hold that the same applies here and that the amended
N.C. Gen. Stat. §
§
7B-906(b) and 7B-600(b) thus apply to any
reviews commenced after 1 October 2000. Here, the review in
question was held in October 2002.
Reversed and Remanded.
Judges WYNN and STEELMAN concur.
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