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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: H.S.F.
Filed: 17 April 2007
1. Child Abuse and Neglect_best interests of juvenile_findings
The uncontested findings supported the trial court's conclusion that it was in a juvenile's
best interest for legal custody to be with her father where the father's fitness and ability to
provide proper care and supervision were not contested, and there were numerous uncontested
findings that demonstrated respondent mother's unfitness and inability to provide proper care.
2. Appeal and Error_custody of child_assignment of error_review order only
The respondent in a proceeding to determine custody of a juvenile appealed only from the
trial court's review order and not from the court's subsequent civil custody order, so that the
Court of Appeals acquired no jurisdiction to consider respondent's assignment of error regarding
findings under N.C.G.S. § 7B-911(c)(1). According to the plain and definite meaning of the
statute, it applies only to civil custody orders.
Appeal by respondent mother from order entered 14 September
2006 by Judge Anna F. Foster in Cleveland County District Court.
Heard in the Court of Appeals 26 March 2007.
Charles E. Wilson, Jr., for petitioner-appellee Cleveland
County Department of Social Services.
Hall & Hall Attorneys at Law, PC, by Susan P. Hall, for
Rebekah W. Davis, for respondent father-appellee.
C.B. (respondent) appeals from order entered awarding legal
custody of her minor child, H.S.F., to the child's father, J.F.,
and shared physical custody of H.S.F. between J.F. and her maternal
grandfather, T.A. We affirm.
This is the third appeal concerning this minor child. On 14
July 1990, respondent and J.F. were married. H.S.F. was born on 19
January 1993. Respondent and J.F. divorced and respondent later
remarried. After her parent's divorce, H.S.F. resided primarily
with respondent. H.S.F. and J.F. have maintained in contact with
On 28 January 2004, the Cleveland County Department of Social
Services (DSS) filed a petition that alleged H.S.F. was a
neglected juvenile because she lived in an injurious environment
with respondent. DSS asserted respondent's home was an injurious
environment due to domestic violence that had occurred between
respondent and her second husband, H.S.F.'s stepfather.
On 28 January 2004 and 4 February 2004, the trial court
entered non-secure custody orders. H.S.F. was placed into DSS's
non-secure custody, who placed her with J.F. and her paternal
grandmother. On 16 April 2004, J.F. filed a motion in the cause
for legal and physical custody of H.S.F.
On 9 April 2004, after an adjudication and dispositional
hearing, the trial court concluded: (1) joint legal custody of
H.S.F. was placed with respondent and J.F.; (2) primary physical
custody was placed with J.F.; and (3) DSS's custody was terminated.
Respondent appealed to this Court after the resulting order was
filed on 14 May 2004. On 21 February 2006, this Court affirmed the
trial court's order. See In re H.S.F., 176 N.C. App. 189, 625
S.E.2d 916 (2006) (Unpublished), disc. rev. denied, 360 N.C. 534,
633 S.E.2d 817 (2006). In September 2004, a review hearing was conducted and the
trial court ordered continued joint legal custody of H.S.F. with
respondent and J.F., but changed primary physical custody from J.F.
to respondent. The trial court also ordered physical placement
of H.S.F. with her maternal grandfather, T.A. J.F. appealed to
this Court. On 18 April 2006, this Court reversed the trial
court's order and remanded the case to the trial court for further
proceedings. See In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416
Upon remand on 11 July 2006, the trial court entered a review
order that required an update from all parties on H.S.F.'s status.
On 6 September 2006, a review hearing was conducted.
The trial court made extensive findings of fact and concluded
it was in H.S.F.'s best interest that legal custody be placed with
J.F. and physical custody be shared jointly between J.F. and T.A.,
with H.S.F.'s primary residence placed with T.A. Secondary custody
was placed with J.F. in the form of visitation. The trial court
also decreed that: (1) the jurisdiction of this court is
expressly terminated as to this action, pursuant to N.C.G.S. 7B-201
and 7B-911; and (2) [pursuant] to N.C.G.S. 7B-911, the Clerk of
Court shall open a Chapter 50 file under the following caption:
[J.F.], Plaintiff vs. [Respondent], Defendant and [T.A.],
Defendant. Respondent appeals from this order.
On 6 September 2006, the trial court initiated a Chapter 50
civil custody action entitled. The resulting civil custody orderwas entered on 31 October 2006. Neither respondent nor J.F.
appealed from this order.
Respondent argues: (1) the trial court's findings of fact
failed to support its conclusion of law that it is in H.S.F.'s best
interest that legal custody be granted to J.F. and (2) the trial
court violated N.C. Gen. Stat. § 7B-911(c).
III. Standard of Review
Respondent argues the trial court's findings of fact do not
support its conclusion of law that it is in H.S.F.'s best interest
to grant legal custody to J.F. We disagree.
[F]indings of fact made by the trial court . . . are
conclusive on appeal if there is evidence to support them. Hunt
v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987). Where
no exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991). The trial court's 'conclusions of law are
reviewable de novo on appeal.' In re J.S.L., G.T.L., T.L.L., 177
N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (quoting Starco,
Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477
S.E.2d 211, 215 (1996)).
IV. Legal Custody
 Here, uncontested findings of fact support the trial
court's conclusion of law that it is in H.S.F.'s best interest togrant legal custody to her father, J.F. The trial court found
9. [J.F.] has exercised alternating weekend
visitation with [H.S.F.] in his home, pursuant
to the September 17, 2004 court order.
. . . .
26. [H.S.F.] has exercised regular visitation
with her father [J.F.]. The visits have gone
well and [H.S.F.] enjoys a loving relationship
with her father.
. . . .
38. [J.F.] is the biological father of
[H.S.F.]. There is no evidence he has
abrogated his constitutional rights to parent
[H.S.F.]. There is no evidence [J.F.] is an
39. That, however, when questioned at this
hearing about his desires, [J.F.] stated that
he did not want to disrupt [H.S.F.'s]
situation by having her live with him
permanently. When asked about having custody
of his daughter [J.F.] stated I'd take her.
J.F.'s fitness and ability to provide proper care to and
supervision of H.S.F. was not contested and has never been an issue
in the juvenile proceedings before the trial court or this Court.
In contrast, the trial court made numerous uncontested findings of
fact that demonstrate respondent's unfitness and inability to
provide proper care for H.S.F. The trial court's uncontested
findings of fact support its conclusion it was in H.S.F.'s best
interest that legal custody be granted to J.F. This assignment of
error is overruled.
V. N.C. Gen. Stat. § 7B-911
 Respondent argues the trial court violated N.C. Gen. Stat.
§ 7B-911(c). Respondent asserts the trial court: (1) failed to
make sufficient findings of fact and conclusions of law to support
the entry of a custody order under G.S. CH. 50, per G.S. 7B-
911(c)(1) and (2) failed to find there was not a need for
continued state intervention on behalf of the juvenile per G.S. 7B-
911(c)(2). We disagree.
N.C. Gen. Stat. § 7B-911(c) (2005) states, in relevant part:
(c) The court may enter a civil custody order
under this section and terminate the court's
jurisdiction in the juvenile proceeding only
(1) In the civil custody order the court makes
findings and conclusions that support the
entry of a custody order in an action under
Chapter 50 of the General Statutes or, if the
juvenile is already the subject of a custody
order entered pursuant to Chapter 50, makes
findings and conclusions that support
modification of that order pursuant to G.S.
(2) In a separate order terminating the
juvenile court's jurisdiction in the juvenile
proceeding, the court finds:
a. That there is not a need for continued
State intervention on behalf of the juvenile
through a juvenile court proceeding; and
b. That at least six months have passed since
the court made a determination that the
juvenile's placement with the person to whom
the court is awarding custody is the permanent
plan for the juvenile, though this finding is
not required if the court is awarding custody
to a parent or to a person with whom the child
was living when the juvenile petition was
(Emphasis supplied). N.C. Gen. Stat. § 7B-911 is entitled, Civil child-custody
order. N.C. Gen. Stat. § 7B-911(c) applies only when a trial
court enter[s] a civil custody order under this section and
terminate[s] the court's jurisdiction in [a] juvenile
When interpreting a statute, our Supreme Court has stated:
The primary rule of statutory construction is
that the intent of the legislature controls
the interpretation of a statute. The foremost
task in statutory interpretation is to
determine legislative intent while giving the
language of the statute its natural and
ordinary meaning unless the context requires
otherwise. Where the statutory language is
clear and unambiguous, the Court does not
engage in judicial construction but must apply
the statute to give effect to the plain and
definite meaning of the language.
Carolina Power & Light Co. v. The City of Asheville, 358 N.C. 512,
518, 597 S.E.2d 717, 722 (2004) (internal citations and quotations
Here, respondent noticed an appeal only from the trial court's
review order. Respondent failed to appeal from the trial court's
subsequent civil custody order. According to the statutes' plain
and definite meaning, the requirements of N.C. Gen. Stat. § 7B-
911(c) only apply to civil custody orders and not review orders.
Respondent failed to appeal from the trial court's civil custody
order entered pursuant to N.C. Gen. Stat. § 7B-911(c) and this
Court has no jurisdiction to hear respondent's appeal. See Bromhal
v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994),
aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995) (Without proper notice
of appeal, the appellate court acquires no jurisdiction and neitherthe court nor the parties may waive the jurisdictional requirements
even for good cause shown under Rule 2.). This assignment of
error is dismissed.
The trial court's uncontested findings of fact support its
conclusion it was in H.S.F.'s best interest that legal custody be
granted to J.F. Respondent noticed appeal from the trial court's
review order and failed to notice appeal from the trial court's
subsequent civil custody order pursuant to N.C. Gen. Stat. § 7B-
911(c). This Court acquired no jurisdiction to consider
respondent's assignment of error under N.C. Gen. Stat. § 7B-911(c).
The trial court's order is affirmed.
Judges HUNTER and MCCULLOUGH concur.
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