In re J.R.S., 258 N.C. App. 612 (2018)

Held: 
Reversed and Remanded
  • Facts: In a previous juvenile proceeding, the two children who had been adjudicated neglected and dependent were placed in their grandparents’ legal and physical custody pursuant to G.S. 7B-911 (establishing a Chapter 50 custody order and terminating jurisdiction in the juvenile action). Months later, DSS filed a new petition based on domestic violence in the grandparents’, who are custodians, home. In this new action, the children were adjudicated neglected and dependent and placed in DSS custody. At a permanency planning hearing, the court concluded that the relinquishments to adoption executed by the children’s parents terminated the parental rights of the respondents (custodian grandparents) and the parents, effectively removed the grandparent custodians from the action, and directed DSS to pursue a permanent plan of adoption. Grandparents separately appealed.
  • G.S. 7B-401.1 sets forth who must be parties to an abuse, neglect, or dependency proceeding, which includes parents, guardians, custodians, and caretakers. Pursuant to G.S. 7B-401.1(d) regarding custodians, the grandparents were named as respondent parties. Before removing the custodians [guardian or caretaker] as parties, the trial court must comply with G.S. 7B-401.1(g), which requires “the court finds (1) that the person does not have legal rights that may be affected by the action and (2) that the person’s continuation as a party is not necessary to meet the juvenile’s needs.” Neither finding was made. The opinion comments that on remand, the trial court may be prevented from making the first finding given the chapter 50 custody order.
  • If on remand, the custodians remain parties, the court must consider appropriate visitation as may be in the children’s best interests pursuant to G.S. 7B-905.1 (which applies when an order removes custody of a child from a parent, guardian, or custodian, or continues the child’s placement outside the home).
Category:
Abuse, Neglect, Dependency
Stage:
Parties
Topic:
Removal
Tags:
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7B-401.1(g)
custodian
findings
visits
7B-905.1