An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-365
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


IN THE MATTER OF:                             Orange County
                                              No. 11 JA 1
       L.L.




      Appeal by respondent from order entered 20 December 2013 by

Judge Beverly Scarlett in Orange County District Court.                       Heard

in the Court of Appeals 30 June 2013.


      Michael N. Tousey for guardian ad litem.

      Mary McCullers Reece for respondent-appellant mother.


      HUNTER, JR., Robert N., Judge.


      Respondent, mother of juvenile L.L. (“Larry”), appeals from

an   order    styled    “Custody     Order    7B-911    N.C.G.S.     Chapter    50”

entered by the district court on remand from our decision in In

re L.L., ___ N.C. App. ___, 749 S.E.2d 113, 2013 N.C. App. LEXIS

873 (2013) (unpublished) (“L.L. II”).             We affirm.

      This is respondent’s third appeal in this cause.                   In In re

L.L., ___ N.C. App. ___, 734 S.E.2d 140, 2012 N.C. App. LEXIS
                                         -2-
1241   (2012)      (unpublished)       (“L.L.    I”),     she   appealed   from    a

permanency        planning     order   that     awarded    legal     and   physical

custody of Larry to his father.                 Because the order lacked the

finding required by N.C. Gen. Stat. § 7B-907(b)(1) (2013) as to

whether it was possible to return Larry to respondent’s home

immediately       or   within    the   next    six   months,    we   reversed   and

remanded to the district court for a new permanency planning

hearing.1    L.L. I, 2012 N.C. App. LEXIS 1241, at *10.

       In L.L. II, respondent appealed from the order entered on

remand from L.L. I.           In this order, entered 23 January 2013, the

district court not only granted custody to Larry’s father but

also closed the juvenile case and converted the proceeding to a

civil custody action under Chapter 50 of our General Statutes.

See N.C. Gen. Stat. § 7B-911 (2013).                 Although respondent again

claimed     the    order      lacked   the     necessary    permanency     planning

finding under N.C. Gen. Stat. § 7B-907(b)(1), we deemed the

court’s     findings     sufficient     and     “accordingly     affirm[ed]     this

portion of the order.”            L.L. II, 2013 N.C. App. LEXIS 873, at

*3.    However, we vacated the portion of the order transferring

the case from juvenile court to civil custody court, due to the

court’s     failure      to     make   the     statutorily      required   finding

1
  We also remanded for entry of a proper visitation plan.                       L.L.
I, 2012 N.C. App. LEXIS 1241, at *10.
                                            -3-
“‘[t]hat there is not a need for continued State intervention on

behalf of the juvenile through a juvenile court proceeding[.]’”

Id. at *4 (quoting N.C. Gen. Stat. § 7B-911(c)(2)(a) (2011)).

“Absent . . . any finding which addresses the need for continued

State intervention on behalf of the juvenile[,]” we concluded,

“the order of transfer must be vacated and the matter remanded

for further proceedings consistent with this opinion.”                         Id.

       Following      our    decision       in    L.L.    II,    respondent      filed   a

motion to modify visitation and noticed the matter for hearing

on 19 December 2013.          At the hearing the parties described their

difficulty       in   agreeing      upon    a     mutually      convenient      time   for

respondent’s visitation with Larry.                      After stating its belief

that “[this] is a Chapter 50 issue[,]” the court                               announced,

“This case is definitely going to Chapter 50.                         I am finding that

as   of    the   date   of    the    last    order       from   DSS    court    that   was

appealed to the Court of Appeals, that there has not been any

need      for    further     State    intervention.”              The    court    denied

respondent’s motion to modify visitation in an order entered 10

January 2014.

       In its “Custody Order 7B-911 N.C.G.S. Chapter 50[,]” the

district court acknowledged this Court’s mandate in L.L. II,

repeated the findings of fact made in its 23 January 2013 order,
                                              -4-
and    added    an    additional         finding        that,      “[p]ursuant            to   North

Carolina General Statute 7B-911(c)(2), there is no longer a need

for    state       intervention         in   this     matter       and        this    matter         is

properly     converted        to    a    Chapter      50    case.”            The    court     again

decreed that custody of Larry would be granted to his father and

that “[t]his matter shall be closed to further court review and

be converted to a Chapter 50 case pursuant to N.C.G.S. 7B-911.”

It directed the clerk of court to “assign a CVD file number for

this matter” and to “treat this order as the initiation of a

civil custody action[.]”

       Respondent now claims that the district “court erred by

entering a permanency planning remand order” without providing

notice to the parties as required by N.C. Gen. Stat. § 7B-906.1

(2013).        She notes that she “did not calendar the matter for

permanency planning hearing or for a remand hearing on the issue

of    transferring      jurisdiction             to   Chapter          50    court”       when      she

noticed      her     motion    to       modify    visitation           for     hearing         on    19

December     2013.        Therefore,         respondent           contends,          “the      issues

relating to permanency planning, including transfer of the case,

were not properly before the trial court.”

       The     guardian       ad     litem       (“GAL”)         has        moved    to     dismiss

respondent’s        appeal,        claiming      that      the    “Custody          Order      7B-911
                                                  -5-
N.C.G.S. Chapter 50” is not appealable.                              In her statement of

grounds for appellate review,                         see   N.C. R. App. P. 28(b)(4),

respondent asserts a right of appeal under N.C. Gen. Stat. § 7B-

1001(a)(4) (2013), inasmuch as the order “changes legal custody

of     a    juvenile.”              She        suggests      that    the       district        court

“replace[d]           the     permanency        planning      orders      remanded       by    this

Court      on     6    November        2013      and    20    August       2013”    and       that,

therefore,        “the        effect      of    the    current      appealed      order       is    to

change      the       child’s       legal       custody      and    cease       review    in       the

juvenile court.”

       We agree with the GAL that the order entered sub judice did

not effect a change in Larry’s custody, which remained with his

father.         Nonetheless, we believe it is subject to appeal—either

as an order “which in effect determines the [juvenile] action

and prevents a judgment from which appeal might be taken[,]”

N.C.       Gen.       Stat.     §    7B-1001(a)(2),           or    as     a    civil     custody

determination           under       Chapter      50.    See   N.C.       Gen.    Stat.    §§       7B-

911(b), 50-19.1 (2013).                   Therefore, we deny the GAL’s motion to

dismiss.

       We find no merit to respondent’s claim that she was denied

notice of a permanency planning hearing under N.C. Gen. Stat. §

7B-906.1(b).           Our ruling in L.L. II affirmed the portion of the
                                          -6-
district    court’s       23    January    2013   order      awarding    custody       to

Larry’s    father.        We    vacated     the   order      only     insofar    as   it

converted the juvenile case to a civil custody action under N.C.

Gen.   Stat.     §    7B-911.     Though     we   remanded      for    further    fact-

finding under N.C. Gen. Stat. § 7B-911(c)(2)(a), our mandate did

not require the district court to hold a new hearing on the

issue.     Moreover, we find no indication that the court intended

to revisit Larry’s permanent plan or its transfer decision at

the 19 December 2013 hearing noticed by respondent on her motion

to modify visitation.            While the court reiterated its intention

to transfer the case from juvenile to civil court, it did so in

the    course    of    explaining    its    ruling      on   respondent’s       motion.

Because the hearing in question was not a “subsequent permanency

planning”       hearing    under     N.C.     Gen.      Stat.   §     7B-906.1,       the

statute’s       notice    provisions        did   not     apply.        Respondent’s

argument is overruled.

       Affirmed.

       Chief Judge MARTIN and Judge ELMORE concur.

       Report per Rule 30(e).
