An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disf avored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-847

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 4 February 2014


IN THE MATTER OF:

B.W., K.T., and A.W.                         Durham County
                                             Nos. 12 JA 174—76




      Appeal by respondent from order entered 2 May 2013 by Judge

William A. Marsh, III, in Durham County District Court.                      Heard

in the Court of Appeals 13 January 2014.


      Assistant Durham County Attorney Robin K. Martinek for
      petitioner-appellee Durham County Department of Social
      Services.

      Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for
      respondent-appellant father.

      Troutman Sanders LLP, by Gavin B. Parsons, for guardian ad
      litem.


      BRYANT, Judge.


      Where respondent received adequate notice of a permanency

planning    hearing    to   be   conducted    and   the   trial      court   then

combined    an   initial    dispositional     hearing     with   a   permanency
                                     -2-
planning hearing, the trial court did not err pursuant to our

Juvenile Code.

        Respondent-father      appeals     from      the        trial        court’s

adjudication and disposition order in which Billy, Karl, and

Andy1    were   adjudicated    neglected     and    Billy       and     Karl     were

adjudicated     abused.     The   Durham   County    Department         of     Social

Services (“DSS”) became involved with this family on 29 July

2011 when it received a report that respondent physically abused

Billy and Karl, and hit and beat the children’s mother in the

children’s presence.        On 24 August 2011, DSS substantiated the

case for improper discipline and neglect.             On 7 September 2011,

the     children   were     placed   in    the     home    of    the      maternal

grandparents as part of a safety plan with DSS.                       The children

have been in the home of their maternal grandparents since that

date.

        The mother obtained a domestic violence protective order

(“DVPO”) against respondent in October 2011.                    However, within

weeks the mother had the DVPO set aside because she was “working

things out” with respondent.             Respondent and the mother were

referred to services related to parenting classes, psychological

evaluations, and individual and couples therapy.                 Respondent was

1
  Billy, Karl and Andy are pseudonyms used to protect the
identities of the juveniles pursuant to N.C.R. App. P. 3.1(b).
                                         -3-
also referred to services for anger management.                 Respondent and

the mother completed parenting classes but made minimal progress

in completing the other services.

    On 30 March 2012, DSS received another report in which the

children   disclosed       several   incidents     of   abuse   by   respondent.

The reporter stated that the children disclosed that respondent

“held their heads under water and has hit them in their faces

several times.”      DSS substantiated the abuse.

    On     14     September   2012,      DSS    filed   a   juvenile    petition

alleging all three children were neglected.                 The petition also

alleged    that    Billy    and   Karl   were    abused.     The     trial   court

conducted an adjudication hearing on 15 and 19 February and 12

March 2013.       At the conclusion of the hearing, the trial court

determined that the children were abused and neglected.                       The

trial court then conducted a combined disposition and permanency

planning hearing.          On 2 May 2012, the trial court entered its

order adjudicating all three children neglected, and Billy and

Karl abused.       The trial court awarded guardianship of Billy and

Andy to their maternal grandparents, and guardianship of Karl to

his paternal grandmother.         Respondent appeals.2



2
  The order also terminated the parental rights of the juveniles’
mother and L.T., the legal husband of the mother and legal
father to Karl and Andy, but neither parent is a party to this
                                          -4-
                            _______________________________

      As   an    initial        matter,   we   address   the    issue    of   whether

respondent has standing to appeal as to Karl and Andy.                            The

mother’s husband, L.T., is the legal father of Karl and Andy.

Therefore, DSS argues that respondent is neither a parent nor

guardian of Karl and Andy.                Similarly, the guardian ad litem

(“GAL”) argues that respondent is neither a parent, guardian, or

custodian of either child.

      Under the Juvenile Code, proper parties to appeal are as

follows:    “A parent, a guardian appointed under G.S. 7B-600 or

Chapter 35A of the General Statutes, or a custodian as defined

in G.S. 7B-101 who is a nonprevailing party.”                   N.C. Gen. Stat. §

7B-1002(4) (2011).          A custodian is defined in part as “a person,

other than parents or legal guardian, who has assumed the status

and   obligation      of    a    parent   without   being      awarded   the   legal

custody of a juvenile by a court.”                N.C. Gen. Stat. § 7B-101(8)

(2011).     In this case, prior to their removal, Karl and Andy

resided with their mother and respondent.                 In fact, DSS alleged

in the juvenile petition that respondent “acted as a parent or

caretaker       for   all    the    children.”       Thus,     we   conclude     that




appeal.
                                       -5-
respondent was a custodian of Karl and Andy, and therefore has

standing to appeal pursuant to section 7B-1002(4).

     On appeal, respondent argues that “[i]t is readily apparent

under [the Juvenile Code] that the trial court is not authorized

to   combine     a    permanency   planning   hearing    with     an   initial

dispositional hearing and that, consequently, the trial court is

not authorized to adopt and implement a permanent plan as an

initial disposition.”        Respondent contends this Court previously

reached this conclusion in In re D.C., 183 N.C. App. 344, 644

S.E.2d 640 (2007).

                    Section 7B-907 [of the Juvenile Code]
              sets forth specific rules for giving “notice
              of the hearing and its purpose to the
              parent.” “At the conclusion of the hearing,
              if the juvenile is not returned home, the
              court    shall    consider”   six   statutorily
              enumerated     criteria   and   “make   written
              findings regarding those that are relevant.”

Id. at 355, 644 S.E.2d at 646 (quoting N.C. Gen. Stat. § 7B-

907(b)).      In D.C., this Court reversed the portion of the trial

court’s order awarding guardianship because the respondent did

not receive the statutorily required notice and the trial court

failed   to    make   the   findings   mandated   by   N.C.G.S.    §   7B-907.

Moreover, in In re S.C.R., __ N.C. App. __, 718 S.E.2d 709

(2011), “this Court has previously held that ‘N.C. Gen.[]Stat.

§§ 7B-507 and 907 do not permit the trial court to enter a
                                          -6-
permanent plan for a juvenile during disposition’ without the

statutorily required notice for a permanency planning hearing.”

Id. at __, 718 S.E.2d at 713 (quoting In re D.C., 183 N.C. App.

344, 356, 644 S.E.2d 640, 646 (2007)).                The Court in S.C.R. held

that it was error for the trial court to authorize the permanent

plan   at    disposition     without      the    statutorily       required   notice.

Id.

       In    present    case,       the   “Notice      of    Hearing”      provided:

“Following adjudication, the matter will proceed to disposition

and permanency planning hearing for this matter.”                          Thus, the

parties received notice as to the permanency planning hearing.

In fact, respondent concedes that he received notice as to the

permanency planning hearing.              Respondent further concedes that

the    trial   court   made     the    findings     mandated       by   N.C.G.S.     7B-

907(b).        Furthermore,     at     the      conclusion    of    the   permanency

planning hearing, the trial court “may appoint a guardian of the

person for the juvenile pursuant to G.S. 7B-600 . . . .”                           N.C.

Gen. Stat. § 7B-907(c) (2011).               Accordingly, the trial court did

not    err   in   adopting    and     implementing     the    permanent       plan   of

guardianship      at   the   initial      disposition       hearing.       The   trial

court’s order is affirmed.

       Affirmed.
                          -7-
Judges HUNTER, Robert C., and STEELMAN concur.

Report per Rule 30(e).
