Appeal by respondent-mother from an order entered 1 December
2003 by Judge Richard T. Brown in Cumberland County District Court.
Heard in the Court of Appeals 20 September 2005.
John F. Campbell for petitioner-appellee Cumberland County
Department of Social Services.
Attorney Advocate Jodi P. Carpenter for appellee Guardian ad
Litem.
Katharine Chester for respondent-appellant.
BRYANT, Judge.
Respondent-mother, M.S.
(See footnote 1)
, appeals an order granting physical
custody of her two minor children, J.S. and P.S. to their paternal
grandparents, currently residing in California. For the following
reasons, we dismiss this appeal.
Facts and Procedural History
On 9 October 1999, an incident report was filed at Fort Bragg
stating that M.S. had been assaulted by her husband. The
Cumberland County Department of Social Services (DSS) became
involved because of the incident of domestic violence and drafted
a case plan focusing on protecting the children from domesticviolence in December 1999. Respondent-mother was told by DSS that
she needed to protect her children from being in an injurious
environment created by domestic violence.
Respondent-mother engaged in counseling with a therapist who
identified father as abusive, and recommended she get a protective
order. DSS continued to write case plans requiring the children be
protected from their father and respondent-mother continued in
counseling for herself and for her children, but was warned that,
unless she could protect her children from the violence of their
father, a Petition would be filed.
This case was commenced when the Cumberland County Department
of Social Services filed a Petition on 14 May 2001 alleging that
J.S. and P.S. were neglected and dependent. Non-secure custody was
continued for more than a year before the Adjudication/Disposition
hearing was held on 24 June 2002. Home studies were ordered on
relatives in California, and the children continued in foster care,
with the parents having visitation.
A Permanency Planning Hearing was held on 20 September 2002.
A second Permanency Planning Hearing was scheduled and continued
several times, coming on for hearing at the 20 March 2003 session
of Juvenile Court, Cumberland County, before the Honorable Richard
T. Brown, District Court Judge. Testimony continued on 5 June, 24-
25 June, July 25, and 11 August 2003.
The trial court entered an Order on 24 November 2004 placing
the children with their paternal grandparents. The trial court
found that it had “concerns” about the respondent-mother's mentalhealth. It concluded that, while both sets of grandparents could
provide homes for the children, the children should be placed with
the paternal grandparents where there would be “more detachment and
less interference by the respective parents until the parents have
addressed and resolved the issues which concern the [c]ourt.” The
trial court ordered that the children be in the physical custody of
the paternal grandparents in California, but ordered that they
remain in the legal custody of Cumberland County Department of
Social Services. It further ordered that “there be extensive
visitation for both parents in the home of their respective parent
to be specifically determined by the appropriate supervising
California agency.” Respondent-mother appeals pursuant to N.C.
Gen. Stat. § 7B-1001.
_________________________
The dispositive issue in this matter is whether the trial
court's order is a final order from which respondent-mother may
appeal. Respondent-mother asserts the trial court's order is a
final order of disposition following adjudication. We disagree and
dismiss this appeal.
Section 7B-1001 of the North Carolina General Statutes states:
Upon motion of a proper party as defined in
G.S. 7B-1002, review of any final order of the
court in a juvenile matter under this Article
shall be before the Court of Appeals. . . . A
final order shall include:
(1) Any order finding absence of
jurisdiction;
(2) Any order which in effect
determines the action and prevents ajudgment 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. Gen. Stat § 7B-1001 (2003). This Court recently held:
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 not
mean every permanency planning, review, or
other type of order entered at some
unspecified point following such a
disposition.
In re B.N.H., __ N.C. App. __, __, 611 S.E.2d 888, 890,
disc.
review denied, 359 N.C. 632, 615 S.E.2d 865 (2005). However, an
order which changes the permanency plan falls under Section
7B-1001(3) and may be appealed.
In re Weiler, 158 N.C. App. 473,
477, 581 S.E.2d 134, 136-37 (2003) (order changing the disposition
from reunification to termination appealable under Section 7B-
1001(3)).
The order appealed here did not change the permanency plan for
the juveniles. The order places physical custody with the paternal
grandparents and continues legal custody with the Cumberland County
Department of Social Services, to be transferred to the appropriate
supervising California agency when the children are placed with
their paternal grandparents. There is no mention of a change in
the permanency plan of reunification with the parents, and thetrial court specifically orders that there shall be “extensive
visitation for both parents . . . .”
Physical custody of the children was transferred to their
paternal grandparents pursuant to the Interstate Compact on the
Placement of Children (ICPC), as set out in N.C. Gen. Stat. §§ 7B-
3800-3806. Under the ICPC, the Cumberland County Department of
Social Services “shall retain jurisdiction over the child
sufficient to determine all matters in relation to the custody,
supervision, care, treatment, and disposition of the child which it
would have had if the child had remained in [North Carolina] . . .
.” N.C. Gen. Stat. § 7B-3800, art. V(a) (2003). Furthermore,
“[s]uch jurisdiction shall also include the power to effect or
cause the return of the child or its transfer to another location
and custody pursuant to law.”
Id.
Thus, the trial court's order is not a final order appealable
under N.C. Gen. Stat. § 7B-1001. The order does not make a finding
of an absence of jurisdiction; does not determine the action and
prevent a judgment from which an appeal might be taken; is not an
order of disposition after an adjudication that a juvenile is
abused, neglected, or dependent; and does not modify the parents
custodial rights. Accordingly we dismiss respondent-mother's
appeal.
Dismissed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
Footnote: 1