An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitte d in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1114
                       NORTH CAROLINA COURT OF APPEALS
                                Filed:    6 May 2014
IN THE MATTER OF:
                                               Brunswick County
                                               Nos. 11 JA 125-26
      E.W.P. and J.W.P.


      Appeal    by    respondent-father        from    orders   entered   12   July

2013 by Judge Sherry Dew Prince in Brunswick County District

Court.    Heard in the Court of Appeals 14 April 2014.


      Jess, Isenberg & Thompson, by Elva L. Jess, for petitioner-
      appellee Brunswick County Department of Social Services.

      Mary McCullers Reece for respondent-appellant father.

      Kerner Law Firm, by Robert C. Kerner, Jr., for guardian ad
      litem (no brief).


      Ervin, Judge.


      Respondent-Father        Jonathan        P.     appeals   from   permanency

planning     orders    entered     by    the    trial     court   which    awarded

guardianship of E.W.P. and J.W.P.1 to their paternal grandmother,

Jeanie K., and paternal aunt, Wendy D.                   On appeal, Respondent-

Father contends that the trial court erred by failing to adopt a

      1
      E.W.P and J.W.P will be referred to throughout the
remainder of this opinion as “Enid” and “Jake,” pseudonyms used
for ease of reading and to protect the juveniles’ privacy.
                                         -2-
specific plan under which Respondent-Father was allowed to visit

Enid and Jake and by dispensing with the necessity for further

periodic    review     proceedings       without      making     the    statutorily

required findings of fact.          After careful review of Respondent-

Father’s challenges to the trial court’s orders in light of the

record   and     the   applicable    law,      we   conclude     that    the     trial

court’s orders should be reversed and that this case should be

remanded    to   the   Brunswick    County      District   Court        for    further

proceedings not inconsistent with this opinion.

                            I. Factual Background

    On 6 September 2011, the Brunswick County Department of

Social Services filed petitions alleging that Enid and Jake were

neglected    and   dependent      juveniles     and    obtained    the        entry   of

orders taking the children           into      nonsecure custody.              At that

time, Enid was twenty months old and Jake was nine months old.

In addition, J.A.W., who was Respondent-Father’s daughter from

an earlier marriage, lived with the family.2                   According to the

allegations      advanced    in    the    petitions,      both     children       were

developmentally delayed as a result of the environment in which

they lived; the children’s parents failed to provide them with

adequate medical care, food, and diapers; and Jake had                            been

    2
      J.A.W. will be referred to throughout the remainder of this
opinion as “Joan,” a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
                                        -3-
diagnosed as failing to thrive.                 Although the children were

originally placed in a kinship placement with their paternal

grandmother on 11 August 2011, they were moved to a licensed

foster home on 16 September 2011.

       On   19   October    2011,    the   trial   court    entered   an   order

adjudicating Jake, Enid, and Joan to be neglected and dependent

juveniles.       In a subsequent dispositional order, the trial court

determined that the children should remain in DSS custody and

ordered Respondent-Father and Respondent-Mother Margaret P. to

execute and comply with case plans.              On 28 June 2012, the trial

court entered an order providing that DSS was no longer required

to make efforts to reunify Enid and Jake with their parents and

changed the permanent plan for Enid and Jake from reunification

with   their     parents    to    placement    with   a   court-approved    care

giver.       Although      Enid   and   Jake    had   moved   back    to   their

grandmother’s home on 1 August 2012, they had been visiting her

regularly before that date.

       The case came on for a permanency planning hearing on 12

June 2013.        In two orders entered on 12 July 2013, the trial

court found that it was not possible for Enid and Jake to return

home within the next six months.               As a result, the trial court

made Jeanie K. and Wendy D. the children’s guardians given that

the children had been living with Jeanie K., that Wendy D. lived
                                             -4-
next door to Jeanie K., and that Wendy D. was willing to share

the responsibility of caring for the children with Jeanie K.                         In

addition, the trial court relieved DSS and the guardian ad litem

of   the        necessity    for     having      further       involvement   with   the

children,        concluded       that    there     was    no    need   for   continued

monitoring of the children’s placement, and released Respondent-

Father’s        counsel     from     any     further      obligation    to   represent

Respondent-Father.           Respondent-Father noted an appeal to this

Court from the trial court’s orders.

                          II. Substantive Legal Analysis

                                        A. Mootness

      In his brief, Respondent-Father argues that the trial court

erred by (1) failing to adopt a specific plan governing his

visitation        with     the     children      and     (2)    dispensing   with   the

necessity for further periodic review proceedings without making

the findings of fact required by N.C. Gen. Stat. § 7B-906(b).

In   its    sole    response       to   Respondent-Father’s         contentions,    DSS

argues that the trial court obviated the necessity for this

Court      to    address    the     issues    raised      by    Respondent-Father    by

convening a new permanency planning hearing and entering new

permanency planning orders on 12 December 2013 which contained

findings of fact and ordering language addressing the issues
                                            -5-
that Respondent-Father has raised on appeal.3                           We do not find

DSS’ argument persuasive.

      Although DSS does not couch its response to Respondent-

Father’s     challenge       to    the   trial     court’s       orders       in    mootness

terms,      the    essential       thrust    of    its     position          is    that,     by

convening     new    permanency       planning      hearings         and     entering      new

permanency        planning    orders     after     the     filing       of        Respondent-

Father’s brief with this Court, the trial court has rendered

Respondent-Father’s           challenge       to     the        original           permanency

planning     orders    moot.         According       to    well-established             North

Carolina law, “[a] case is ‘moot’ when a determination is sought

on a matter which, when rendered, cannot have any practical

effect on the existing controversy.”                      Roberts v. Madison Cnty.

Realtors Assn., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)

(citing     Black’s    Law     Dictionary     1008      (6th     ed.    1990)).         As   a

general      proposition,          “‘[w]henever,          during       the        course     of

litigation it develops that the relief sought has been granted

or   that    the    questions      originally      in     controversy         between      the

parties are no longer at issue, the case should be dismissed,

for courts will not entertain or proceed with a cause merely to

determine abstract propositions of law.’”                        Dickerson Carolina,

Inc. v. Harrelson, 114 N.C. App. 693, 697-98, 443 S.E.2d 127,
      3
      DSS     included       the   revised    orders       as   an     appendix       to   its
brief.
                                             -6-
131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994)

(quoting In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912

(1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979)).

In   the   course      of     determining      whether     an    appeal    should    be

dismissed      as     moot,    “[c]onsideration       of     matters      outside   the

record is especially appropriate.”                  State ex rel. Util. Comm’n

v. S. Bell Telephone & Telegraph Co., 289 N.C. 286, 288, 221

S.E.2d 322, 324 (1976).             Thus, we must, as a preliminary matter,

address    the      extent     to    which    the   trial     court    appropriately

addressed      and      rectified      Respondent-Father’s            concerns      with

respect to the original permanency planning orders by entering

the 12 December 2013 orders.

      The fundamental problem with DSS’ mootness argument is that

the trial court lacked the authority to enter the 12 December

2013 orders.        According to N.C. Gen. Stat. § 7B-1003(b), a trial

court   has    the     authority,      pending      appeal,      to   “[c]ontinue     to

exercise jurisdiction and conduct hearings under [the provisions

of   Chapter     7B    of     the   General    Statutes     dealing     with   abused,

neglected, and dependent juveniles] with the exception of [those

provisions dealing with the termination of parental rights]” and

“[e]nter      orders     affecting      the    custody      or   placement     of   the

juvenile as the court finds to be in the best interests of the

juvenile.”       As this Court has previously noted, “N.C. Gen. Stat.
                                         -7-
§   7B-1003   and    its    predecessors       were     intended    to    authorize

continued jurisdiction for a limited purpose:                 protection of the

child pending appeal” and, for that reason, “limit[] the trial

court’s     authority      to   the      traditionally-recognized         need    to

protect children pending appeal.”                In re K.L., 196 N.C. App.

272,     278-79,    674    S.E.2d     789,     793-94    (2009).         The   clear

motivation underlying the entry of the 12 December 2013 orders

was to address and attempt to rectify errors that Respondent-

Father    claimed    to    exist    in   the   original     permanency     planning

orders in his brief before this Court, a purpose that has no

direct bearing upon the need to protect children during the

pendency of an appeal.          As a result, we conclude that, since the

trial court lacked the authority to enter the 12 December 2013

orders, the mootness argument advanced by DSS has no merit, and

we must proceed to address Respondent-Father’s challenges to the

trial court’s permanency planning orders.

            B. Validity of Respondent-Father’s Challenges
           to the Trial Court’s Permanency Planning Orders

                    1. Lack of Specific Visitation Plan

       “Any dispositional order . . . under which the juvenile’s

placement     is    continued      outside     the   home   shall   provide      for

appropriate visitation as may be in the best interests of the

juvenile and consistent with the juvenile’s health and safety.”

N.C. Gen. Stat. § 7B-905(c) (2011).                   In the orders that are
                                    -8-
before us for review in this case, the trial court provided

“[t]hat any visitation between the minor child[ren] and [their]

parents shall be in the discretion of the guardian. . . .”

According to Respondent-Father, the visitation provisions of the

trial court’s permanency planning orders failed to comply with

the requirements of N.C. Gen. Stat. § 7B-905(c) because those

orders included neither a specific visitation plan nor a finding

that Respondent-Father was unfit to visit with his children.

Respondent-Father’s contention has merit.

      “The awarding of visitation of a child is an exercise of a

judicial    function,   and   a   trial   court   may   not   delegate   this

function to the custodian of a child.”              In re E.C., 174 N.C.

App. 517, 522, 621 S.E.2d 647, 652 (2005).

            In the absence of findings that the parent
            has forfeited [his] right to visitation or
            that it is in the child’s best interest to
            deny visitation “the court should safeguard
            the   parent’s   visitation    rights    by   a
            provision   in   the   order    defining    and
            establishing    the   time,     place[,]    and
            conditions   under   which   such   visitation
            rights may be exercised.”

Id.   at   522-23,   621   S.E.2d   at    652   (alteration   in   original)

(quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844,

849 (1971)).     In this case, the trial court failed to either

find that Respondent-Father had forfeited his right to visit

with Enid and Jake or that Respondent-Father would be entitled
                                        -9-
to visit with Enid and Jake              according to certain judicially

specified terms and conditions.               Instead, the trial court left

visitation between Respondent-Father, on the one hand, and Enid

and Jake, on the other hand, in the discretion of the guardians,

an outcome that we have previously found to be contrary to N.C.

Gen. Stat. § 7B-905(c).           See id. at 521-23, 621 S.E.2d at 651-52

(holding that the trial court erred by authorizing the parent to

visit    with    the   children    in   the    discretion   of    the   appointed

guardian).      As a result, we reverse the visitation provisions of

the challenged portion of the trial court’s permanency planning

orders and remand this case to the Brunswick County District

Court for the entry of new permanency planning orders containing

appropriate       findings,       conclusions,      and     ordering      clauses

describing the extent to which and circumstances under which

Respondent-Father       is   entitled     to    visit   with     Enid   and   Jake

consistently with the provisions of N.C. Gen. Stat. § 7B-905.1.4

                2. Necessity for Future Review Proceedings



     4
      In 2013 N.C. Sess. L. c. 129, s. 23, 24, and 41, the
General Assembly repealed the visitation-related provisions of
N.C. Gen. Stat. § 7B-905(c) and replaced them with the
provisions of N.C. Gen. Stat. § 7B-905.1.    As a result of the
fact that N.C. Gen. Stat. § 7B-905.1 governs the issues
addressed in this section of our opinion for purposes of
“actions filed or pending on or after” 1 October 2013, the
proceedings to be held on remand with respect to this issue must
be governed by N.C. Gen. Stat. § 7B-905.1 rather than former
N.C. Gen. Stat. § 7B-905(c).
                                      -10-
    Finally,         Respondent-Father     argues   that   the   trial    court

erred     by    dispensing   with    the     necessity   for   future    review

hearings without making the findings of fact required by N.C.

Gen. Stat. § 7B-906(b).             According to N.C. Gen. Stat. § 7B-

906(b):

               the court may waive the holding of review
               hearings required by subsection (a) of this
               section, may require written reports to the
               court by the agency or person holding
               custody in lieu of review hearings, or order
               that review hearings be held less often than
               every six months, if the court finds by
               clear, cogent, and convincing evidence that:

               (1)   The   juvenile   has  resided  with   a
                     relative or has been in the custody of
                     another suitable person for a period of
                     at least one year;

               (2)   The    placement    is     stable   and
                     continuation of the placement is in the
                     juvenile’s best interests;

               (3)   Neither the juvenile’s best interests
                     nor the rights of any party require
                     that review hearings be held every six
                     months;

               (4)   All parties are aware that the matter
                     may be brought before the court for
                     review at any time by the filing of a
                     motion for review or on the court’s own
                     motion; and

               (5)   The court order has designated the
                     relative or other suitable person as
                     the juvenile’s permanent caretaker or
                     guardian of the person.
                                    -11-
Any failure to make the findings required by N.C. Gen. Stat. §

7B-906(b) necessitates an award of appellate relief.                      In re

R.A.H., 182 N.C. App. 52, 61-62, 641 S.E.2d 404, 410 (2007).

    In    the   challenged   permanency    planning    orders,      the   trial

court relieved DSS and the GAL of any responsibility for further

involvement in the case, concluded that there was no need for

further   monitoring   of    the   children’s   placement,    and    released

Respondent-Father’s counsel.          As a result, the ultimate effect

of the    challenged permanency planning orders was to end                  the

present case and dispense with the necessity for future periodic

review    hearings.    The    trial    court    did   not,   however,      make

findings addressing all of the criteria specified in N.C. Gen.

Stat. § 7B-906(b).     More specifically, although the trial court

detailed the stability of the children’s placement with Jeanie

K. and found that placement of the children with Jeanie K. and

Wendy D. was in the children’s best interests, the children had

only been in that placement for eleven months at the time that

the permanency planning order was entered.              As a result, the

trial court failed to adequately address the criteria specified

in N.C. Gen. Stat. § 7B-906(b)(1).         In addition, the trial court

failed to make findings regarding the issues posited in N.C.

Gen. Stat. §7B-906(b)(3), which relates to the issue of whether

the juvenile’s best interests or the rights of any party require
                                           -12-
that additional review hearings be held in the future at six

month     intervals,    and    N.C.       Gen.    Stat.    §    7B-906(b)(4),   which

addresses the extent to which the parties are aware that future

review proceedings can be held on the court’s own motion or as

the result of a motion filed by a party to the proceeding.                          As a

result, we reverse the challenged permanency planning orders and

remand this case to the Brunswick County District Court for the

entry of new orders containing appropriate findings of fact,

conclusions of law, and ordering clauses relating to the issue

of   whether      additional    periodic         review    proceedings      should    be

held.     See R.A.H., 182 N.C. App. at 62, 641 S.E.2d at 410.5

                                III. Conclusion

      Thus, for the reasons set forth above, we conclude that the

trial     court     failed     to     adequately          address     the   issue     of

Respondent-Father’s visitation with Enid and Jake and to make

findings of fact and conclusions of law adequately addressing

the issues relevant to a determination that additional periodic

review    proceedings    need       not    be     held    in   this   matter.    As    a
      5
      The General Assembly repealed former N.C. Gen. Stat. § 7B-
906, 2013 N.C. Sess. L. c. 129, s. 25, and enacted N.C. Gen.
Stat. § 7B-906.1, 2013 N.C. Sess. L. c. 129, s. 26, “effective
October 1, 2013, and [applicable] to actions filed or pending on
or after that date.”    2013 N.C. See. L. c. 129, s. 41.    As a
result of the fact that the issues formerly governed by N.C.
Gen. Stat. § 7B-906(b) are now addressed in N.C. Gen. Stat. §
7B-906.1(n), the proceedings on remand should be conducted in
accordance with N.C. Gen. Stat. § 7B-906.1(n), which differs
only slightly from former N.C. Gen. Stat. § 7B-906(b).
                                 -13-
result, the trial court’s orders should          be, and hereby are,

reversed and this case should be, and hereby is, remanded to the

Brunswick   County   District   Court   for   further   proceedings   not

inconsistent with this opinion.

    REVERSED AND REMANDED.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).
