In re J.L., 264 N.C. App. 408 (2019)

Affirmed in Part
Vacated and Remanded in Part
  • Facts: After filing a petition alleging neglect and dependency, DSS obtained nonsecure custody of a newborn and placed the child with Mr. and Mrs. C (foster parents). After adjudication, the initial disposition continued custody with DSS, who continued the child’s placement with Mr. and Mrs. C. In a permanency planning order, custody with DSS continued (as did DSS’s placement with Mr. and Mrs. C); reunification efforts with mom were ceased; and a primary plan of guardianship with a court-approved caretaker and secondary plan of adoption was ordered. Mother’s visitation was ordered for one hour of supervised visits/month. At a subsequent permanency planning hearing, DSS and the GAL recommended a change in placement to foster parents who had adopted two of the child’s older half-siblings. Although not parties, Mr. and Mrs. C as the current placement provider testified, and the court permitted their counsel to facilitate their testimony on direct examination. Two experts testified. The expert procured by Mr. and Mrs. C and called by the child’s GAL attorney advocate was directly examined by Mr. and Mrs. C’s counsel. The permanency planning order awarded guardianship to Mr. and Mrs. C. and ordered that mom have no in-person visits with the child but could have telephonic communication that was monitored by Mr. and Mrs. C. Respondent mother appeals.
  • A motion to dismiss the appeal for lack of standing must be made by motion under N.C. App. Rule 37 and not raised for the first time in a brief.
    • There is a concurrence on this issue.
  • Although the appellees’ motion to dismiss made through their brief is not properly before the court, standing is jurisdictional and is, therefore, a threshold issue the court must address. Respondent mother, as the party invoking the court’s jurisdiction has the burden of proving she has standing to appeal. G.S. 7B-1001(a)(4) authorizes a parent who is a nonprevailing party to appeal. “A prevailing party is defined as one in whose favor the decision or verdict is rendered and judgment entered.” Sl. Op. at 7 quoting In re T.B., 200 N.C. App. 739, 746 (2009). The order appealed from awarded guardianship to Mr. and Mrs. C over mother’s objection and request that her child be placed with the foster parents who adopted the child’s half siblings; as such, mother is a nonprevailing party. This case is distinguishable from In re C.A.D., 247 N.C. App. 552 (2016). There, the appellate court held the mother was not aggrieved by the trial court’s order that did not place her child with maternal grandparents, who were parties in the action and could have but did not appeal. In this case, the foster parents the mother desired placement with are not parties and could not have independently appealed the order. Mother is asserting her parental interest in having the child placed in a home with his half siblings.
Abuse, Neglect, Dependency
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