An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-929
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


IN THE MATTER OF:

                                              Madison County
                                              Nos. 08 JA 29-30
K.R. and M.R.



      Appeal by respondent from order entered 12 April 2013 by

Judge Ted McEntire in Madison County District Court.                     Heard in

the Court of Appeals 13 January 2014.


      Anna S. Lucas for father-appellee.

      Assistant   Appellate   Defender              Joyce     L.     Terres     for
      respondent-appellant mother.

      Administrative Office of the Courts, by Appellate Counsel
      Tawanda N. Foster, for guardian ad litem.


      HUNTER, Robert C., Judge.


      Respondent,      the   mother    of   the   juveniles     K.R.   and    M.R.,

appeals from an order denying her motion for review.                          After

careful review, we reverse and remand.

                                   Background
                                        -2-
    This matter is before this Court for a second time.                           The

full facts of this case are set forth in unpublished opinion In

re K.R., No. COA10-1380, 2011 WL 1467660 (N.C. Ct. App. April

19, 2011).

    On 25 August 2008, the Madison County Department of Social

Services (“DSS”) filed a petition alleging that M.R. was an

abused, neglected, and dependent juvenile after the juvenile had

been given a drug, Abilify, for which the juvenile did not have

a prescription.       On the same date, DSS also filed a petition

alleging     that    M.R.’s     sibling,      K.R.,     was     a     neglected   and

dependent juvenile based on the same facts alleged in the M.R.

petition.     On 27 October 2008, the juvenile court entered an

order    adjudicating    the    juveniles       neglected,       and    custody   was

granted to DSS.         Subsequently, the          juvenile court entered a

permanency     planning        review     order       in      which     it   granted

guardianship of the juveniles to their paternal grandparents.

Respondent appealed that order, and this Court concluded that

several of the juvenile court’s findings of fact were either

unsupported by the evidence or contrary to the evidence.                          K.R.

at *9.     Specifically, this Court held that “there was not enough

competent evidence upon which the [juvenile] court could award

guardianship    of    the     juveniles    to     the      paternal     grandparents
                                          -3-
without abusing its discretion.”                Id.    Accordingly, we reversed

the juvenile court’s order and remanded for continuation of a

permanent plan of reunification with respondent.                 Id. at 9-10.

     A review hearing was held on remand on 15 and 16 August

2011.   The juvenile court ordered that a trial home placement of

the juveniles with respondent should commence prior to 25 August

2011.    A   permanency        planning    review     hearing   was    held   on   20

February 2012.         The court found that the trial placement was

going   well,    and    that    the   trial      placement   and      reunification

efforts should continue.

     On 23 April 2012, the juvenile court held a hearing and

entered an order terminating DSS’s custody of the juveniles.

The court noted that the parties had agreed to comply with the

terms of a Chapter 50 Custody Order entered in Gaston County on

9 July 2008.

     On 8 February 2013, respondent filed a motion for review.

Respondent stated that the juveniles continued to reside with

her pursuant to the juvenile court’s 23 April 2012 order until

entry of a civil order in Madison County on 19 November 2012.

The civil order granted immediate primary care, custody, and

control of the juveniles to the father-appellee (“the father”).

Respondent      was    granted     supervised         visitation.        Respondent
                                        -4-
claimed that she did not receive notice of the 19 November 2012

hearing    and    therefore    did     not    appear.       Respondent     further

claimed that she had no knowledge of any change of custody until

the father “appeared at her door with sheriff’s deputies to

retrieve the minor children.”           Along with the motion for review,

respondent stated that she was filing a Rule 60 motion in civil

district court seeking to set aside the 19 November 2012 order.

Respondent sought return of the juveniles to her primary care,

custody,    and    control,    arguing       that   the    civil   court    lacked

jurisdiction because the juvenile court had not terminated its

jurisdiction of the matter.

      The juvenile court heard respondent’s motion on 25 March

2013.     The court found that the juvenile court had terminated

its jurisdiction in its 23 April 2012 order.                    Accordingly, the

juvenile court declined to consider respondent’s motion.

                              Grounds for Appeal

      Respondent filed written notice of appeal from the juvenile

court’s order on 26 April 2013, but the certificate of service

indicates that she did not serve the guardian ad litem or DSS.

The failure to serve a proper party is a fatal defect which

deprives this Court of jurisdiction.                See N.C.R. App. P. 26(b);

In   Re   C.T.,   182   N.C.    App.    166,    167,      641   S.E.2d   414,   415
                                             -5-
(dismissing the father’s appeal because “failure to attach a

certificate of service to the notice of appeal is fatal”), aff’d

per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007).                      Respondent,

cognizant of this deficiency, has filed a petition for writ of

certiorari.       In our discretion, we allow the petition.

                                       Argument

       Respondent argues that the juvenile court erred when it

determined it lacked jurisdiction to hear her motion for review.

We agree.

       Whether the juvenile court had subject matter jurisdiction

is a question of law and is reviewed de novo on appeal.                      Powers

v. Wagner, __ N.C. App. __, __, 716 S.E.2d 354, 357 (2011).                     The

Juvenile Code grants our district juvenile courts “exclusive,

original jurisdiction over any case involving a juvenile who is

alleged to be abused, neglected, or dependent.”                   N.C. Gen. Stat.

§     7B–200(a)    (2013).           “When     the   [juvenile]   court     obtains

jurisdiction over a juvenile, jurisdiction shall continue until

terminated by order of the court or until the juvenile reaches

the    age   of   18    years   or    is     otherwise   emancipated,     whichever

occurs first.”         N.C. Gen. Stat. § 7B–201(a) (2013).

       In In re S.T.P., 202 N.C. App. 468, 473, 689 S.E.2d 223,

227 (2010), this Court reviewed whether the juvenile court’s
                                                -6-
dispositional order which placed custody of the juvenile with

his    maternal          grandparents       had        successfully        terminated        the

court’s jurisdiction.               In its dispositional order following an

adjudication         of     neglect      and     dependency,         the   juvenile      court

stated that the case was closed.                      Id. at 471, 689 S.E.2d at 226.

This Court concluded, however, that the juvenile court did not

terminate its jurisdiction                 merely by use of the words “Case

closed.”           Id.     at     472,    689     S.E.2d        at    227.       The     Court

distinguished         closing       a    case     from       terminating      jurisdiction,

noting that “neither Mother nor Father were returned to their

pre-petition        legal       status.”         Id.    at    472,   689     S.E.2d    at    227

(emphasis added); see also N.C. Gen. Stat. § 7B-201(b) (2013)

(“When       the          court’s        jurisdiction            terminates,           whether

automatically or by court order, . . . [t]he legal status of the

juvenile and the custodial rights of the parties shall revert to

the    status        they       were     before        the     juvenile      petition        was

filed[.]”).         The Court concluded that the parents had not been

returned      to     their       pre-petition          status    because      the     juvenile

court’s      order       awarded       custody    to     the    maternal      grandparents,

awarded limited visitation to the mother, and ordered the father

to    stay   off     of    the    maternal       grandmother’s        property.         In    re

S.T.P. at 472-73, 689 S.E.2d at 227.
                                        -7-
      In Rodriguez v. Rodriguez, 211 N.C. App. 267,                            270, 710

S.E.2d 235, 240 (2011), this Court determined, sua sponte, that

the   juvenile    court    maintained     subject       matter         jurisdiction      to

review   a   custody    order.      DSS   had     filed      a    petition       alleging

abuse,   neglect    and    dependency,      and   the     maternal        grandparents

subsequently filed a Chapter 50 action seeking custody of the

juveniles.       Id. at 269, 710 S.E.2d at 237.                        On appeal, this

Court    determined       that    the     juvenile        court          had     obtained

jurisdiction     over     the   juveniles     prior     to       the    filing    of    the

grandparents’ complaint.          Id. at 270, 710 S.E.2d at 238.                       This

Court further determined, however, that the juvenile court had,

in its order in which it returned physical and legal custody of

the juveniles to the mother, terminated its jurisdiction.                               Id.

at 273, 710 S.E.2d at 240.           This Court noted that although the

juvenile court ordered that the mother should provide dental and

medical care and therapy for the juveniles, the juvenile court

did not specify any details.              Id. at 271, 710 S.E.2d at 239.

This Court further determined that “[b]y relieving DSS and the

Guardian ad Litem program of responsibility as to the children

and by vacating ‘any prior custody order’ the juvenile court

seems to have indicated its intent to end its involvement with

the children entirely.”          Id. at 272, 710 S.E.2d at 239.                     Thus,
                                      -8-
this Court concluded that the juvenile review order had returned

the   defendant   “to     her    status   prior      to     the   filing     of    the

petition[.]”      Id.      Consequently,       this       Court   held      that   the

juvenile court had subject matter jurisdiction to consider the

plaintiffs’ custody claim because the juvenile matter had been

terminated.    Id. at 273, 710 S.E.2d at 240.

      Here, the juvenile court’s order is ambiguous, due in part

to its brevity.     We note, however, that while the juvenile court

returned joint custody of the juveniles to respondent and the

father, the court did not relieve the guardian ad litem of any

further responsibility in the case.                 Cf. Rodriguez, 211 N.C.

App. at 272, 710 S.E.2d at 239.              The guardian ad litem remains

appointed “until formally relieved of the responsibility by the

court.”     N.C. Gen. Stat. § 7B-601(a) (2013).                       A guardian ad

litem appointed to represent a juvenile in accordance with N.C.

Gen. Stat. § 7B-601(a), and who has not been relieved of this

responsibility, is authorized to file a motion or petition to

terminate    parental   rights.       N.C.    Gen.    Stat.       §   7B-1103(a)(6)

(2011).     Thus, the parties were not completely returned to their

pre-petition    status.         Rodriguez,    211    N.C.    App.      at   272,   710

S.E.2d at 239.     Therefore, we hold that the juvenile court did

not terminate its jurisdiction, and the juvenile court retained
                                 -9-
subject matter jurisdiction to consider respondent’s motion for

review.   Consequently, upon respondent’s motion for review, the

juvenile court was required to hold a review hearing.   See N.C.

Gen. Stat. § 7B-906(b) (“The Court may not . . . refuse to

conduct a review hearing if a party files a motion seeking the

review.”).1   Accordingly, we reverse and remand.

                              Conclusion

     Based on the foregoing reasons, we reverse the order and

remand for hearing.



     REVERSED AND REMANDED.

     Judges BRYANT and STEELMAN concur.

     Report per Rule 30(e).




1
   The General Assembly has recently merged the provisions
regarding custody review hearings, N.C. Gen. Stat. § 7B–906, and
permanency planning hearings, N.C. Gen. Stat. § 7B–907, into one
provision: N.C. Gen. Stat. § 7B–906.1 (2013). 2013 Sess. Laws
129 §§ 25 and 26. As the proceedings in this matter occurred
before the amendment’s 1 October 2013 effective date, N.C. Gen.
Stat. § 7B-906 still applies.
