[1] Petitioner's motion to dismiss respondent's appeal as
interlocutory is dispositive of this matter. N.C.G.S. § 7B-1001
(2003), provides that appeal may be taken from “any final order of
the court in a juvenile matter[.]” The statute defines a “final
order” to include
:
(1) Any order finding absence of jurisdiction;
(2) Any order which in effect determines the
action and prevents a judgment from which
appeal might be taken;
(3) Any order of disposition after an
adjudication that a juvenile is abused,
neglected, or dependent; or
(4) Any order modifying custodial rights.
N.C.G.S. §§ 7B-1001(1)-(4) (2003).
In its motion to dismiss, DSS asserts that not all permanency
planning review orders and review orders are “final orders” subject
to appellate review. Specifically, DSS asserts that a permanency
planning order that does not modify “custodial rights” as
contemplated by G.S. § 7B-1001(4) is not appealable and, further,
that an initial permanency planning order is not an “order of
disposition after an adjudication that a juvenile is abused,
neglected, or dependent” within the meaning of G.S. § 7B-1001(3).
In
In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003)
,
respondent appealed from a permanency planning review order
changing the permanent plan from reunification to termination of
parental rights. Speaking of subsection (3) of G.S. § 7B-1001,
this Court held:
The present order again changed the disposition
from reunification with the mother to termination
of parental rights. An order that changes the
permanency plan in this manner is a dispositional
order that fits squarely within the statutory
language of section 7B-1001. . . . Thus, the appeal
is properly before us and petitioner's motion to
dismiss is denied.
Id. at 477, 581 S.E.2d at 136-37. Thus, this Court essentially
held that a “permanency planning order” was a species of
“dispositional order” subject to immediate appeal. This is a very
broad interpretation of the term “order of disposition” in G.S. §
7B-1001(3). Such an expansive interpretation of G.S. § 7B-1001(3)
could arguably permit appeal from every review order, permanency
planning order, or other genre of court order that follows an
adjudication and disposition. For the following reasons,
we
respectfully disagree with the
Weiler court's interpretation of the
term “dispositional order” in G.S. § 7B-1001(3).
Our Juvenile Code contemplates distinct types of court orders,
including,
e.g., “adjudication” orders, N.C.G.S. § 7B-807 (2003);
“dispositional” orders, N.C.G.S. § 7B-905 (2003); “review” orders,
N.C.G.S. § 7B-906 (2003); “permanency planning” orders, N.C.G.S. §
7B-907 (2003); orders on “termination of parental rights”, N.C.G.S.
§ 7B-1109,
et seq. (2003); and post-termination of parental rights
review orders, N.C.G.S. § 7B-908 (2003). Each category of orders
addresses a different objective in the larger context of a juvenile
proceeding. Further, the varying names that the legislature gave
these orders leads us to the inescapable conclusion that the
General Assembly did not intend that every juvenile court order be
a “final order” subject to immediate appeal. In our view, the
statutory language of G.S. § 7B-1001(3), referring to an “order of
disposition after an adjudication that a juvenile is abused,
neglected, or dependent”, means the dispositional order that is
entered after an adjudication under G.S. § 7B-905, and
does notmean every permanency planning, review, or other type of order
entered at some unspecified point following such a disposition.
This interpretation results in a logical application of G.S.
§ 7B-1001(3) for numerous reasons. First, the express goal of G.S.
§ 7B-907(a) is “to develop a plan to achieve a safe, permanent home
for the juvenile within a reasonable period of time.” Thus, the
General Assembly did not intend to allow a party to frustrate and
delay a trial court's ability to achieve permanency for children by
means of endless appeals. Second, an examination of our Juvenile
Code and its practical application reveals
awareness by the General
Assembly that some juvenile court actions might evade appellate
review as a matter of right, or might be appealable only at some
later juncture.
See In re Laney, 156 N.C. App. 639, 577 S.E.2d 377
(2003) (appeal from temporary disposition order after adjudication
dismissed). Thirdly, we disagree with any suggestion that a
permanency planning order that changes the goal from reunification
to adoption “should” be tantamount to a “final order” and therefore
appealable under G.S. § 7B-1001(3). Although such an order may
trigger changes in the actions of DSS, it nonetheless makes no
change to that which is of central import to parents, DSS and other
persons interested in a juvenile proceeding _
custodial rights.
Additionally, the language of G.S. § 7B-1001 does
not indicate that
such an order is immediately appealable
. Fourth, repeated interim
appeals unnecessarily delay resolution of juveniles' cases, thus
fostering an extended period of uncertainty and instability _ again
in sharp conflict with “develop[ing] a plan to achieve a safe,permanent home for the juvenile within a reasonable period of
time.”
See G.S. § 7B-907(a). Fifth, the fact our Juvenile Code
prescribes
time targets for hearings suggests the legislature
believed that persons' appellate rights would be fairly protected
by allowing appeals only at the discrete junctures set forth in
G.S. §§ 7B-1001 and 7B-1113
because the juvenile court would be
required to act within such deadlines.
See, e.g., N.C.G.S. § 7B-
506 (2003) (nonsecure custody); N.C.G.S. § 7B-801(c) (2003)
(adjudication); N.C.G.S. § 7B-906 (review hearings); G.S. § 7B-907
(permanency planning hearings); N.C.G.S. § 7B-907(e) (2003) (when
petition for termination of parental rights must be filed); and
N.C.G.S. § 7B-908(b) (2003) (post-termination of parental rights
hearings). Finally, intermittent juvenile appeals will inevitably
prolong the involvement of the courts in most cases, something
abhorrent to many parents who appeal the orders of the juvenile
court. This is because the majority of our appellate decisions do
not preclude further assertions of jurisdiction over the juvenile
by the district court.
In sum, the suggestion that parents have an immediate appeal
of right from every review order, or every initial and subsequent
permanency planning order, because of the language in G.S. § 7B-
1001(3): (1) contradicts the language and plain meaning of the
statute; (2) frustrates the stated legislative purpose of achieving
permanency for children in a timely manner; (3) does not serve the
interests of children within the jurisdiction of our juvenile
court;
(4) is not essential to protect the rights and interests ofparents; and (5) frustrates our courts' ability to meet the needs
of children. We respectfully disagree with the holding in
Weiler,
and express our concern that an expansive interpretation and
application of G.S. § 7B-1001(3) may paralyze our juvenile courts'
ability to function.
[2] We next consider whether
Weiler controls the outcome of
DSS' motion to dismiss the present appeal.
See In re Appeal from
Civil Penalty Assessed for Violations of Sedimentation Pollution
Control Act, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A]
panel of the Court of Appeals is bound by a prior decision of
another panel of the same court addressing the same question, but
in a different case, unless overturned by an intervening decision
from a higher court.”).
In
Weiler, the permanency planning order
on appeal changed the plan from reunification to adoption. The
order on appeal here is not such an order, not only because it was
an initial permanency planning order but also because it repeats
the previous directives of the court that reunification be ceased.
We therefore limit the holding of
Weiler to the specific facts of
that case, and decline to extend its reasoning further.
The present appeal is dismissed because the order on appeal is
not a final order under G.S. § 7B-1001.
Dismissed.
Judges McCULLOUGH and ELMORE concur.
*** Converted from WordPerfect ***
