In re J.M.D.
210 N.C. App. 420
| N.C. Ct. App. | 2011Background
- DSS petitioned in Oct 2007 alleging Jake and siblings were neglected and respondent-mother failed to provide sanitary home and medical care.
- Jake was adjudicated neglected and removed Jan 30, 2008; Jake placed with Kevin after a 2008 paternity determination, with Kevin designated as father.
- Feb 2009 order placed Jake with Kevin; Feb 2009 paternitytest confirmed Kevin as father; 30 Mar 2009 permanency order favored Kevin’s custody.
- Respondent-mother appealed, asserting insufficient § 7B-907 findings; appellate court agreed, remanding for proper findings.
- New hearing held 21 Dec 2009; Kevin absent; court refused to hear more evidence and claimed § 7B-907(b) inapplicable because Jake with father.
- 3 Jun 2010 order again found § 7B-907(b) inapplicable and transferred custody dynamics, prompting another reversal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 7B-907(b) findings were required on remand | Respondent-mother | Kevin/Respondent, as custodian, alleged not necessary | Findings required; remand ordered for § 7B-907(b) findings |
| Whether the trial court properly followed the appellate mandate on remand | Respondent-mother | Trial court attempted conformity | Court failed to comply with mandate; reversed |
| Whether the term 'home' in 7B-907(b) is limited to the removed-from home or includes the other parent | Respondent-mother | Court treated home as the father’s home | Statutory 'home' limited to the home from which removed; not redefined |
| Whether evidence could be presented anew on remand | Respondent-mother | No need for new hearing | Discretionary; remand could proceed without new hearing |
Key Cases Cited
- Ledbetter v. Dep’t of Soc. Servs., 158 N.C. App. 281, 580 S.E.2d 392 (2003) (remand for 7B-907(b) findings when not returned home)
- In re T.R.M., 188 N.C. App. 773, 656 S.E.2d 626 (2008) (record must show 7B-907(b) factors; not every fact must be explicit)
- In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003) (special findings required when issues are found)
- N.C. Nat’l Bank v. Va. Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983) (mandate on remand binds lower court; strict adherence)
- Hicks v. Alford, 156 N.C. App. 384, 576 S.E.2d 410 (2003) (remand evidence-bearing discretion rests with trial court)