In Re JMD
708 S.E.2d 167
| N.C. Ct. App. | 2011Background
- Greene County DSS petitioned in Oct 2007 alleging Jake and three siblings were neglected due to unsanitary home conditions, untreated mental health issues, and lack of medical care for the children.
- Jake was adjudicated neglected and removed Jan 30, 2008; Jake placed with Kevin in Feb 2008.
- Permanency planning hearing Feb 16, 2009 ordered Jake with Kevin with a plan for custody with Kevin.
- Nov 24, 2008 Jake placed in Kevin's temporary custody; Kevin later adjudicated Jake's father Feb 2009.
- Feb 2009 permanency order placed custody with Kevin; respondent-mother appealed asserting insufficient 7B-907 findings; this Court remanded for proper findings.
- December 21, 2009 remand hearing held; trial court refused to hear new evidence and refused to make 7B-907(b) findings; court later issued June 3, 2010 written order reiterating limited findings and treating 7B-907(b) as inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the remand order required 7B-907(b) findings. | Respondent-mother argues the court failed to make required 7B-907(b) findings after remand. | Trial court concluded 7B-907(b) was not applicable because Jake resided with the father. | 7B-907(b) findings were required; remanded for new findings. |
| Whether the term 'home' in 7B-907(b) contemplates the home of either parent or only the original home. | Mother argues 'home' could refer to the mother's home only. | Court believed 'home' could be any parent’s home; interpreted to favor placement with father. | Statute contemplates the home from which the juvenile was removed; home is the former home, not a non-lived home. |
| Whether the court could rely on 7B-907(b)(6) as 'any other criteria' and what findings are required. | Remand requires addressing subsection (6) and any other relevant criteria. | If other criteria are not applicable, no findings are needed. | Court may include 7B-907(b)(6) findings as necessary; failure to address relevant criteria requires remand. |
| Whether the trial court properly allowed or refused new evidence on remand. | Mother sought to present evidence after remand. | Court had discretion to limit or permit new evidence, and did not abuse discretion. | Trial court did not abuse its discretion; remand hearing not automatically require new evidence. |
| Whether the case improperly shifted jurisdiction or required transfer to civil court without proper procedure. | Case should be governed by juvenile court; improper transfer. | Court tried to transfer custody disputes to civil court if appropriate. | If termination or transfer is proper on remand, court should follow 7B-201 and 7B-911 procedures. |
Key Cases Cited
- In re Ledbetter, 158 N.C.App. 281 (2003) (risk/placement factors and home definition in 7B-907(b) require findings when not returned home)
- Couch v. Private Diagnostic Clinic, 146 N.C.App. 658 (2001) (mandate strict adherence to trial court rulings and mandates on remand)
- N.C. Nat'l Bank v. Va. Carolina Builders, 307 N.C. 563 (1983) (mandate the lower court to follow appellate mandates strictly)
- Hicks v. Alford, 156 N.C.App. 384 (2003) (remand proceedings discretionary regarding new evidence)
- In re T.R.M., 188 N.C.App. 773 (2008) (record must demonstrate 7B-907(b) factors are considered on remand)
- In re Harton, 156 N.C.App. 655 (2003) (findings of fact required where statutory factors apply)