In Re K.C

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-410 NORTH CAROLINA COURT OF APPEALS Filed: 4 November 2014 IN THE MATTER OF: K.C., a minor child Pitt County No. 12 JT 90 Appeal by Respondent–Mother from orders entered 10 January 2014 by Judge G. Galen Braddy in District Court, Pitt County. Heard in the Court of Appeals 6 October 2014. The Graham.Nuckolls.Conner Law Firm, P.L.L.C., by Jon G. Nuckolls, for Petitioner–Appellee Pitt County Department of Social Services. Troutman Sanders LLP, by Jennifer M. Hall, for Guardian ad Litem. W. Michael Spivey for Respondent–Appellant Mother. McGEE, Chief Judge. Respondent–Mother (“Mother”) appeals from terminating her parental rights to her son, K.C.1 orders Mother also petitions this Court to issue a writ of certiorari to review the 1 We refer to the minor child as “K.C.” throughout the opinion in order to protect his identity. -2trial court’s 9 November 2012 order ceasing her reunification efforts with K.C. We affirm the order of the trial court. The Pitt County Department of Social Services (“DSS”) has been involved with Mother and her children since March 2001. Less than one week after K.C.’s birth in April 2012, DSS filed a juvenile petition neglected and dependent, and removed K.C. from Mother’s care and custody. DSS alleged her the alleging following: that that K.C. Mother was was homeless and whereabouts were unknown; that K.C.’s father was unknown; that Mother had continue disorder, been to diagnosed need mild to mental be with mental addressed,” retardation health issues including (MMR), and “that “affective oppositional defiant disorder (ODD),” and had an IQ of 65; and that K.C.’s five older siblings had been removed from Mother’s care and custody “due to neglect and dependency issues that related to her mental health and behavioral functioning.” After a hearing on 6 June 2012, based on Mother’s stipulation that the allegations set out in the petition were true, the trial court adjudicated K.C. a dependent juvenile. The trial court then placed K.C. in the legal custody of DSS and ordered Mother to have supervised visitation with K.C. for two hours each week. The trial court also ordered Mother to submit to a psychological evaluation as soon as possible and to follow -3any treatment recommendations arising therefrom. The trial court 18 October 2012. held a three-month review hearing on By order filed 9 November 2012, the trial court made the following findings: that Mother was transported by law enforcement to her scheduled psychological evaluation because she was threatening to harm the DSS social worker who scheduled the appointment; that Mother “did not fully cooperate with the appointment,” but the evaluation confirmed that Mother was mildly guardianship intellectually of weekly visits, trial court Mother; Mother then disabled; and that, that out DSS of should nineteen missed thirteen visits with ordered, pursuant to N.C. pursue scheduled K.C. Gen. The Stat. § 7B-507(b)(1), that reasonable efforts to eliminate the need for placement of K.C. should cease as to Mother. The trial court held a permanency planning hearing on 13 December 2012, and ordered that the permanent plan for K.C.’s care be adoption and that the concurrent plan for his care be guardianship with a relative. terminate Mother’s parental DSS then filed a petition to rights on 28 January 2013. DSS alleged that Mother’s parental rights to K.C. were subject to termination on the grounds that K.C. was a neglected and dependent juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(6). -4After hearing the matter in September 2013, the trial court entered orders terminating Mother’s parental rights as to K.C. on 21 November 2013. and later entered The trial court then entered an order — an amended order — setting aside the termination orders due to concerns that Mother had not received proper notice of the September 2013 hearing, and conducted a second termination hearing. the trial court concluded By orders filed 10 January 2014, that K.C. was both neglected and dependent, and determined that termination of Mother’s parental rights was in K.C.’s best interests. Mother filed a notice of appeal from the 10 January 2014 orders terminating her parental rights to K.C. on 17 January 2014. However, DSS moved to dismiss Mother’s purported appeal on the grounds that Mother failed to serve her notice on the parties or to provide proof of service as required by both the North Carolina Rules of Civil and Appellate Procedure, and further failed to include in her notice of appeal the content required by Rule 3(d) of the North Carolina Rules of Appellate Procedure. Although the trial court found that Mother’s notice of appeal did not conform to North Carolina’s Rules of Appellate or Civil Procedure, as alleged in DSS’s motion to dismiss, the trial court, in an order entered 14 March 2014, denied DSS’s motion to dismiss because it also found that DSS failed to -5properly serve Mother with the termination orders. Thus, the trial court concluded that Mother’s time for taking her appeal “should be tolled until [DSS] properly serves the parties with the Orders on Termination,” and decreed that Mother had thirty days “after proper service” of the termination orders to “file a new Notice of Appeal or in the alternative properly serve the original Notice of Appeal.” In accordance with the trial court’s order, Mother then filed a new notice of appeal and re-filed her original notice of appeal and served both on the parties. which Both notices of appeal designated that the orders from Mother adjudication sought and to appeal disposition were orders the 10 January terminating her 2014 parental rights as to K.C. We first note that Mother’s issue on appeal concerns only the trial court’s 9 November 2012 three-month ceasing her reunification efforts with K.C. which Mother did not appeal. — review order an order from It has long been recognized that “the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken,” Craven Reg’l Med. Auth. v. N.C. Dep’t of Health & Human Servs., 176 N.C. App. 46, 59, 625 S.E.2d 837, 845 (2006) (internal quotation marks omitted), and “[w]ithout proper notice of appeal, this Court acquires no -6jurisdiction.” Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (internal quotation marks omitted). Because the record does not reflect that Mother appealed from the 9 November 2012 order, we cannot consider the merits of Mother’s with argument on appeal respect to this order. Nonetheless, since this Court may issue a writ of certiorari “when the right to prosecute an appeal has been lost by failure to take timely Mother’s action,” petition Additionally, for because N.C.R. App. certiorari we have to granted P 21(a)(1), review Mother’s we this grant order. petition for certiorari, we decline to address the merits of the Guardian ad Litem’s (“GAL”) assertions that Mother’s appeal should be dismissed because the trial court erred by concluding that the termination orders were not served on Mother, and because Mother did not give notice of her intent to appeal from the 9 November 2012 order in accordance with the then-applicable statutory requirements of N.C. Gen. Stat. § 7B-507 and § 7B-1001. Mother’s sole argument on appeal is that the trial court erred by ceasing her reunification efforts 9 November 2012 order. not hold a with K.C. in its Mother asserts that the trial court did “meaningful hearing on the issue of ceasing reunification efforts,” because the evidence “consisted solely” of counsel’s arguments. We disagree. -7At the time of this action, N.C. Gen. Stat. § 7B-9062 provided, in relevant part, that, at every review hearing of a case in which custody of a minor child is removed from a parent, the court “may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” § 7B-906(a), (c) (2011). N.C. Gen. Stat. To that end, this Court has repeatedly recognized that “[t]he written reports of social workers and psychiatrists, and other written material in the court’s file are competent evidence in a dispositional or review hearing in juvenile cases,” In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638 (1983), aff’d as modified by 311 N.C. 586, 319 S.E.2d 567 (1984), and that “trial courts may properly consider all written reports and materials [juvenile] proceedings.” submitted in connection with In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003) (internal quotation marks omitted). However, “[d]espite this authority, the trial court may not delegate its fact finding duty,” In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004), and “should not broadly incorporate these written reports from outside sources as its 2 The version of N.C. Gen. Stat. § 7B-906 that governs this appeal was repealed by the General Assembly in 2013 and replaced by N.C. Gen. Stat. § 7B-906.1. See 2013 N.C. Sess. Laws 305, 317–19, ch. 129, §§ 25–26. -8findings of fact.” Id. Moreover, “[s]tatements by an attorney are not considered evidence.” In re D.L., 166 N.C. App. 574, 582, 603 S.E.2d 376, 382 (2004). In the present case, Mother asserts that the trial court only considered the arguments of counsel for DSS and the GAL when determining whether between Mother and K.C. to continue reunification efforts However, in its 9 November 2012 three- month review order, the trial court indicated that it considered the following evidence at the hearing: the court report prepared by the DSS social worker assigned to the case, which included Mother’s reunification neuropsychological assessment, and evaluation, the the reunification family safety assessment that found it was “unsafe” for K.C. to be returned to Mother and recommended a termination of Mother’s parental rights to K.C.; the addendum to the court report prepared by the DSS social worker; paternity test results; prior orders of the trial court in the present case; and the court report prepared by the GAL. file Mother does not dispute that the materials in the court were competent evidence to support the trial court’s findings that continuing reunification efforts would be futile or inconsistent with K.C.’s welfare. Nor does Mother suggest that the court improperly incorporated these written reports as its findings of fact without conducting its own independent -9review. 890, Cf. In re M.R.D.C., 166 N.C. App. 693, 698, 603 S.E.2d 893 (2004) (“[A]lthough the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review.”), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005). According to the record before us, the trial court “received and incorporate[d]” the materials in the court file and, after reviewing the evidence, made numerous additional findings of fact to support its conclusion that reunification efforts would be futile or “inconsistent with [K.C.’s] health, safety, and need for a safe, permanent home within a reasonable period of time.” Therefore, we conclude the trial court did not rely solely on counsels’ respective arguments when it considered whether to cease Mother’s reunification efforts with K.C., and did not err by ordering that such reunification efforts should cease. Affirmed. Judges HUNTER and ELMORE concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.