IN THE MATTER OF:
K.F. Sampson County
R.J.W. Nos. 05 J 01-05
M.W.
M.W.
C.W.
Corinne A. Railey for Petitioner-Appellee, Sampson County
Department of Social Services.
Hunton & Williams, LLP, by Raymond A. Starling, for Guardian
Ad Litem-Appellee.
Brannon & Strickland, PLLC, by Robin E. Strickland, for
Petitioner-Appellant.
McGEE, Judge.
Respondent appeals from permanency planning orders entered
pursuant to the requirements set forth in N.C. Gen. Stat. § 7B-906.
The orders on appeal do not constitute final orders, and therefore
this appeal must be dismissed.
In February 2005, Respondent stipulated to the trial court's
adjudication that her five children were neglected due to
Respondent's drug use. The trial court found that Sampson County
Department of Social Services (DSS) should "continue to make
efforts to prevent or eliminate the need for removal[,]" andordered the children to remain in the care and custody of DSS with
placement authority. The trial court entered custody review orders
on 4 May 2005 in which the trial court concluded that the
children's placement and care was the responsibility of DSS; that
DSS should provide or arrange for foster care or other placement;
and that a reasonable effort would be made to return the children
to the home in the future. The trial court ordered Respondent to
participate in the residential treatment program at "The Village";
that the infant R.J.W. be placed with Respondent at The Village;
that the other children remain in relative placement and that DSS
retain legal and physical custody with placement authority.
A 90-day review hearing was held in July 2005, and an order
was entered by the trial court on 9 August 2005. The trial court
ordered that DSS retain legal and physical custody of the children
with placement authority; that Respondent obtain treatment in a
long-term residential treatment facility with long-term after care,
but that if Respondent had a re-evaluation, the trial court would
consider an alternate treatment plan.
The trial court conducted a review hearing on 6 October 2005
and entered an order on 27 October 2005 concluding that the
children's care and placement was the responsibility of DSS; that
DSS was to provide or arrange for foster care or other placement;
and that reasonable efforts be made to return the children to the
home in the future. The trial court ordered that DSS retain legal
and physical custody of the children with placement authority, and
that Respondent obtain outpatient long-term treatment for substanceabuse based on Respondent's re-evaluation.
DSS filed a "Motion for Review" on 18 November 2005 requesting
that the trial court conduct a permanency planning hearing pursuant
to N.C. Gen. Stat. § 7B-907. Following a permanency planning
hearing, the trial court entered orders dated 1 December 2005,
concluding that it was in the children's best interest that the
legal permanent plan be guardianship with a relative or other
suitable person; that the children's placement and care was the
responsibility of DSS; that DSS provide or arrange for foster care
or other placement; and that a reasonable effort would be made to
return the children to the home in the future. The trial court
ordered that the permanent plan be guardianship with a relative or
other suitable person, and that the Guardian ad Litem be released.
Respondent appeals.
The dispositive issue in this case is whether Respondent's
appeal is properly before this Court. N.C. Gen. Stat. § 7B-1001
(2003), provides that an appeal may be taken from "any final order
of the court in a juvenile matter[.]" The statute defines a "final
order," and states that it includes:
(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. Gen. Stat. § 7B-1001(1)-(4) (2003). We note that this statutewas amended effective October 1, 2005, but because the petitions in
this case were filed prior to 1 October 2005, we apply the above
statute in effect at the time of filing and the related case law.
Sections (1), (2), and (4) are inapplicable to the present
case since the 1 December 2005 permanency planning review orders do
not find an absence of jurisdiction, do not determine the action or
prevent a judgment, and do not modify Respondent's custody rights.
Our review, therefore, turns to whether the orders appealed
constitute a "disposition" or a "final order" as contemplated under
the statute.
In In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003), our
Court concluded that the permanency planning order which changed
the permanent plan, as to the mother, from reunification to
termination of parental rights constituted a "dispositional order"
within the meaning of N.C.G.S. § 7B-1001(3) and was therefore
appealable. In re Weiler, 158 N.C. App. at 477, 581 S.E.2d at
136-37. However, in In re B.N.H., 170 N.C. App. 157, 611 S.E.2d
888, disc. review denied, 359 N.C. 632, 615 S.E.2d 865 (2005), our
Court "limit[ed] the holding of Weiler to the specific facts of
[Weiler], and decline[d] to extend its reasoning further." In re
B.N.H., 170 N.C. App. at 162, 611 S.E.2d at 891. Our Court held
that
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 [of abuse, neglect or dependency]
under G.S. § 7B-905, and does not mean every
permanency planning, review, or other type oforder entered at some unspecified point
following such a disposition.
Id. at 160, 611 S.E.2d at 890 (emphasis omitted). The B.N.H. court
distinguished Weiler by noting that the order appealed from in In
re B.N.H. did not change the plan from reunification, but rather
"repeat[ed] the previous directives of the court that reunification
be ceased." Id. at 162, 611 S.E.2d at 891.
Unlike the order in In re Weiler, where the actual order
appealed from changed the status quo of the relationship between
the parents and the minor, there is no change in the status quo in
this case. Furthermore, the orders do not preclude "return [of]
the child[ren] to the home in the future." Because the 1 December
2005 orders of the trial court continuing custody with DSS are not
appealable final orders as contemplated by N.C.G.S. § 7B-1001, the
appeal is interlocutory and Respondent's appeal is dismissed.
Dismissed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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