In re Kowalzek, 32 N.C. App. 718

In re Kowalzek

32 N.C. App. 718 | N.C. Ct. App. | 1977

ARNOLD, Judge.

Section 7A-286 of the General Statutes of North Carolina establishes the authority of the district court to modify an existing juvenile custody order. The statute provides in part:

“The court shall have a duty to give each child subject to juvenile jurisdiction such attention and supervision as will achieve the purposes of this Article. Upon motion in the cause or petition, and after notice as provided in this Article, the court may conduct a review hearing to determine whether the order of the court is in the best interest of the child, and the court may modify or vacate the order in light of change in circumstances or needs of the child.”

The statute provides that notice be given before there is any modification, and, additionally, that any modification must be made “in light of changes in circumstances or needs of the *721child.” The record does not show any compliance with either of these provisions. Moreover, the court’s order must be in writing and contain “appropriate findings of fact and conclusions of law.” G.S. 7A-285. The order from which appellants appeal does not contain findings of fact or conclusions of law pertaining to any change in circumstances underlying the 6 March 1975 custody order. The order is fatally defective and must be vacated.

The Department concedes error but contends that the Liendos do not have standing to appeal. The pertinent statutes are G.S. 1-271 and G.S. 7A-289. According to G.S. 1-271, “Any party aggrieved may appeal in [civil] cases . . . , ” and G.S. 7A-289 provides:

“Any child, parent, guardian, custodian or agency who is a party to a proceeding under this Article may appeal from an adjudication or any order of disposition to the Court of Appeals, provided that notice of appeal is given . . . . ”

A “custodian” is defined as “a person or agency that has been awarded legal custody of a child by a court, or a person other than parents or legal guardian who stands in loco parentis to a child.” G.S. 7A-278(7). Legal custody was placed in the Department of Social Services, but the court’s orders of March and October 1975 placed physical custody of the child in the Liendos. Furthermore, the Liendos have supported the child for many months, and expressed their desire to keep him permanently. They have undertaken, with the court’s approval, the obligations of parents to Jeffery Kowalzek. They stand in loco parentis to him. Morgan v. Johnson, 24 N.C. App. 307, 210 S.E. 2d 503 (1974); 3 Lee on Family Law, § 238. By the terms of G.S. 7A-278(7) the Liendos are clearly custodians of Jeffery Kowalzek.

The Liendos are also parties to these proceedings. In the court’s order of 9 October 1975 they are explicitly referred to as parties. Moreover, the fact that they were made custodians is some evidence that the Liendos are parties. Custodians are entitled to rights which are commonly afforded to parties: the right to notice, the right to intervene and to present evidence, and the right to contest orders of the court. See, G.S. 7A-283, 7A-285 and 7A-289.

*722We hold that the Liendos are aggrieved parties with standing to appeal. The order complained of clearly affects substantial rights of the parties since the child to whom they stand in loco parentis would be taken from them by the order.

Vacated and remanded.

Chief Judge Brock and Judge Parker concur.