NORTH CAROLINA COURT OF APPEALS
Filed: 19 December 2006
IN RE:
A.D.W. and B.R.W., Randolph County
Minor Children. No. 04 J 206
93 J 123
Respondent appeals from order entered 4 October 2005 by
Judge Lee W. Gavin in the District Court in Randolph County.
Heard in the Court of Appeals 20 September 2006.
David A. Perez, for petitioner-appellee Randolph County
Department of Social Services.
Womble, Carlyle, Sandridge & Rice, PLLC, by Alison Y. Ashe-
Card, for petitioner-appellee Guardian ad Litem.
Richard Croutharmel, for respondent-appellant.
HUDSON, Judge.
In October 2004, the Randolph County Department of Social
Services (“DSS”) filed a petition alleging neglect and dependency
of minor children A.D.W. and B.R.W by their mother, respondent.
In a March 2005 order, the trial court found both children to be
dependent and ordered legal custody with DSS and physical
placement with the children's paternal grandmother. The court
held a permanency planning hearing on 15 September 2005 and on 4
October 2005 ordered that the paternal grandmother have permanent
guardianship of the children, that this be the permanent plan,and that future hearings be waived. Respondent mother appeals.
For the reasons discussed below, we dismiss in part and affirm in
part.
The record reveals that in 1993, DSS filed a petition
alleging
neglect, in that respondent refused to allow B.R.W. to
receive a rabies vaccination after being bitten by a potentially
rabid dog. DSS dismissed the petition after B.R.W.'s parents
allowed the vaccination. In 1995, the Guilford County DSS filed
a petition alleging neglect
of B.R.W. and A.D.W., substantiated
neglect due to respondent's drug abuse, and removed the children
from the home but eventually returned them to respondent's care.
In 2004, DSS received a referral alleging neglect of B.R.W. and
A.D.W., based on respondent's drug abuse and the children's
failure to attend school. The court adjudicated the children
dependent and they were placed in the physical care of their
paternal grandmother, Elva Overcash. Respondent tested positive
for cocaine in January and February 2005, tested negative on five
occasions in February, March and April 2005, and refused to
submit to a drug screen in May 2005. During the four years
before the neglect referral, B.R.W. had not attended public
school and A.D.W. had only a year of formal public education;
although respondent intended to home school the children, she did
not do so on any sustained basis. In the six weeks before theinvestigation, the children reported that they had slept in
approximately six to ten different locations, sometimes being
left in the care of adults they did not know. While the children
were in DSS custody and placed with Ms. Overcash, respondent
visited with the children. In June 2005, respondent ended a
visit early and advised DSS that she did not desire further
visitation. However, in August 2005, respondent contacted DSS
and requested that visitation be reestablished. At the time of
the permanency planning hearing in September 2005, visitation had
not been reestablished.
Respondent first argues that the trial court erred in
failing to make adequate findings regarding her right to
visitation and in failing to order visitation with the children.
We dismiss these arguments as moot.
At the 15 September 2005 permanency planning hearing, the
trial court did not order visitation, but advised respondent to
contact DSS. On 27 September 2005, respondent filed motions for
review in regard to each juvenile, requesting that the court re-
examine the issue of visitation. When the trial court reduced
its permanency planning order to writing on 4 October 2005, it
did not address these motions. Respondent contends that the
trial court violated its duty to address visitation and
improperly delegated its authority to DSS. In re E.C., 174 N.C.App. 517, 522, 621 S.E.2d 647, 651 (2005). However, on 13
October 2005, the trial court held a hearing pursuant to
respondent's motions for review and ordered visitation; the court
entered its order on 16 November 2005. The record on appeal,
settled on 9 February 2006, does not include the 16 November 2005
order. On 20 April 2006, appellee DSS filed a motion to
supplement the record on appeal, which this Court denied. On 17
May 2006, appellee DSS filed a motion to take judicial notice and
to strike arguments as moot and provided a certified copy of the
trial court's 16 November 2005 order. This Court may take
judicial notice of such orders. In re Stratton, 159 N.C. App.
461, 463, 583 S.E.2d 323, 324 (2003).
[O]ur Supreme Court has held [that]
consideration of matters outside the record
is especially appropriate where it would
disclose that the question presented has
become moot, or academic. A case is moot
when a determination is sought on a matter
which, when rendered, cannot have any
practical effect on the existing controversy.
Further, whenever, during the course of
litigation it develops that the relief sought
has been granted or that the questions
originally in controversy between the parties
are no longer at issue, the case should be
dismissed, for courts will not entertain or
proceed with a cause merely to determine
abstract propositions of law.
Id. (internal citations and quotation marks omitted). In her
brief, respondent requests that this Court remand to the trialcourt for entry of a visitation order. However, as the court
ordered visitation in its 16 November 2005 order, we conclude
that “the relief sought has been granted,” and we dismiss the
issue as moot.
Respondent also contends that the trial court erred in
ordering that the matter be closed and future review hearings
waived. We disagree. N.C. Gen. Stat. § 7B-906(b)(2005) allows
the court to waive the holding of periodic review hearings if it
finds that “[t]he juvenile has resided with a relative or has
been in the custody of another suitable person for a period of at
least one year.” Id. Although N.C. Gen. Stat. § 7B-906(b)
requires additional findings before the court may waive review
hearings, respondent has not argued any of these in her brief and
thus we limit our discussion accordingly. Respondent does not
dispute the court's finding that the children had been in the
care of Ms. Overcash since at least 8 October 2004, but contends
that the children had not “resided with a relative . . . for a
period of at least one year,” when the hearing was held on 15
September 2005. However, the court did not enter this order
until 4 October 2005 and specifically ordered that
unless any party files a Motion herein on or
before October 8, 2005, this matter shall be
closed and there shall be no further hearings
in this matter. On October 8, 2005, if the
Court hears no further Motions, all partiesand their respective Counsel shall be
released.
Thus, the Court did not waive the hearings until an effective
date of 8 October 2005, and, as discussed above, the court held a
further review hearing on 13 October 2005. We overrule this
assignment of error.
Finally, respondent argues that the trial court's finding of
fact number 12 is unsupported by the evidence. We disagree.
N.C. Gen. Stat. § 7B-600(c)(2005) states that:
If the court appoints an individual guardian
of the person pursuant to this section, the
court shall verify that the person being
appointed as guardian of the juvenile
understands the legal significance of the
appointment and will have adequate resources
to care appropriately for the juvenile.
Id. N.C. Gen. Stat. §§ 7B-906(g) and 7B-907(f) also require the
court to make such verification if it places a juvenile “in the
custody of an individual other than the parents or appoints an
individual guardian of the person.” Id. Here, the court made the
following finding:
12. The Court has verified that Ms. Overcash
understands the legal significance of the
appointment of guardianship and has adequate
resources to care appropriately for the minor
child. (sic) Ms. Overcash has been
maintaining the children in her household for
almost one full year.
N.C. Gen. Stat. § 7B-600(c)
does not require that the court make
any specific findings in order to make the required verification.
Thus, any finding the trial court makes regarding verification is
conclusive on appeal if supported by competent evidence. See In
re Eckard, 144 N.C. App. 187, 197, 547 S.E.2d 835, 842 (2001).
Here, the record contains evidence that the children were doing
well in school and in their placement, that Ms. Overcash was
involved in their counseling and set appropriate boundaries for
them, that the children wished to remain with their grandmother,
and that DSS and the children's therapist recommended that the
court award guardianship to Ms. Overcash. At the hearing,
respondent's attorney elicited testimony from B.R.W. that there
were seven people living in the three bedroom home and that he
and his sister slept on couches in the living room. Although it
may be ideal for the children to have their own beds, or even
their own rooms, these conveniences are not necessary to
establish that Ms. Overcash was capable of adequately providing
for the children or that she understood the legal significance of
being appointed guardian of the children. We overrule this
assignment of error.
Dismissed in part, affirmed in part.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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