An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-902
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 31 December 2014


IN THE MATTER OF:

     H.H.
                                              Polk County
     R.H.                                     Nos. 13 JA 31-32

__________________________________

C.A.T.,
   Plaintiff

   v.                                         Henderson County
                                              No. 09-CVD-660
D.W.H.,
   Defendant.


      Appeal by respondent from orders entered 28 April 2014 and

28 May 2014 by Judge Peter B. Knight in Polk County District

Court and Henderson County District Court.                  Heard in the Court

of Appeals 3 December 2014.


      Feagan Law Firm,            PLLC,     by Phillip R. Feagan, for
      petitioner-appellee         Polk     County Department of  Social
      Services.

      Michael E. Casterline for respondent.

      The Opoku-Mensah Law Firm, PLLC, by Gertrude Opoku-Mensah,
      for Guardian ad Litem.


      DAVIS, Judge.
                                       -2-



      C.A.T.   (“Respondent”)        appeals    from    the   trial    court’s    28

April 2014 review hearing order and the 28 May 2014 custody

order concerning her two minor children.                On appeal, Respondent

argues that the trial court erred in (1) failing to conduct an

inquiry    regarding       another       attorney’s           substitution       for

Respondent’s court-appointed counsel at the review hearing; (2)

terminating jurisdiction under Chapter 7B of the North Carolina

General Statutes following the review hearing and entering a

custody   order    pursuant     to    Chapter    50     while    the   underlying

adjudication      order   was   on     appeal;    and    (3)     delegating      its

judicial function of determining Respondent’s visitation rights

to the minor children’s father.           After careful review, we affirm

in part and remand in part.

                            Factual Background

      Respondent and D.W.H. (“Mr. H.”) are the parents of two

minor children:      H.H. (“Heather”), age 11, and R.H. (“Rob”), age

9.1   Prior to November 2013, Heather and Rob lived primarily with

Respondent pursuant to a consent order entered on 11 April 2011

regarding the custody of the minor children.                     On 21 November



1
  The pseudonyms “Heather” and “Rob” are used throughout this
opinion to protect the identity of the minor children and for
ease of reading. N.C.R. App. P. 3.1(b).
                                        -3-
2013, Respondent called 911 and requested that Heather and Rob

be picked up because she was unable to provide for their care.

After placing the call to 911, Respondent called Mr. H., and he

agreed to care for Heather and Rob.             Respondent arranged to meet

Mr. H. that evening in the parking lot of a shopping center in

Hendersonville, North Carolina.           As she was driving the children

to meet     Mr. H., she told them that she was “going to jail

because she abused them and that the juveniles would not see her

anymore.”       She then made the children wait outside the car in

the    dimly-lit    parking    lot   until     Mr.     H.    arrived   while    she

remained inside the vehicle.            Mr. H. picked up Heather and Rob

and brought them to his home.

       On 3 December 2013, the Polk County Department of Social

Services (“DSS”) filed petitions alleging that Heather was a

neglected and dependent juvenile and that Rob was an abused,

neglected, and dependent juvenile.             Both petitions also alleged

that Respondent had attempted to regain physical custody of the

children    by   filing   a   motion     for   emergency       custody   the    day

before.     The trial court conducted a hearing on the petitions on

14    January    2014   and   entered    an    order    on    25   February    2014

adjudicating Heather neglected and dependent and adjudicating

Rob abused, neglected, and dependent.             The trial court concluded
                                   -4-
that it was in the children’s best interests that DSS maintain

legal custody of them and that they remain placed with Mr. H.

Respondent appealed the adjudication order to this Court in In

re H.H., No. COA14-650, ___ N.C. App. ___,              ___ S.E.2d ___

(filed Dec. 2, 2014).2

     On 22 April 2014, the trial court held a 90-day review

hearing on the 25 February 2014 order removing the children from

Respondent’s custody.       Respondent was initially present at the

proceeding but left the courtroom shortly thereafter and, as a

result, did not participate in this hearing.           At the hearing,

the trial court received the reports and recommendations of DSS

and the guardian ad litem and heard testimony from Guy Shearer

(“Mr. Shearer”), the DSS social worker assigned to Heather’s and

Rob’s cases.   On 28 April 2014, the trial court entered an order

(1) terminating DSS’s legal custody of Heather and Rob based on

its determination that State intervention in the matter was no

longer   necessary;   and   (2)   granting   full   custody,   care,   and

control of the children to Mr. H.        The trial court proceeded to



2
  In H.H., this Court affirmed the trial court’s adjudications of
Heather and Rob as neglected juveniles and its adjudication of
Rob as an abused juvenile but reversed its adjudications of
dependency as to both children. Id. at ___, ___ S.E.2d at ___.
We also vacated the portion of the order requiring Respondent to
maintain stable housing and employment. Id. at ___, ___ S.E.2d
at ___.
                                         -5-
enter a custody order in the parties’ civil custody case on 28

May 2014 granting Mr. H. sole legal and physical custody of

Heather    and    Rob      and     providing    Respondent       with      supervised

visitation with the children.             Respondent appeals from the trial

court’s 28 April and 28 May 2014 orders.

                                      Analysis

I.   Substitution of Counsel

     Respondent’s first argument on appeal is that the trial

court    erred    by     failing    to   inquire      into    whether       the    legal

representation of Respondent by Ryan Bradley (“Mr. Bradley”) at

the review hearing was in accordance with the North Carolina

Office    of    Indigent    Defense      Services     (“IDS”)    rules       regarding

representation      by    court-appointed       counsel.        Pursuant      to    N.C.

Gen. Stat. § 7A-498.3, IDS is authorized to promulgate rules and

procedures in connection with its mandate to provide quality

representation to indigent clients who are entitled by law to

legal representation.            Under the Indigent Defense Services Act,

codified in Article 39B of Chapter 7A of the North Carolina

General Statutes, the appointment and representation of indigent

clients    by     appointed        counsel     must   follow         the   rules    and

procedures      adopted    by    IDS.        N.C.   Gen.     Stat.    §    7A-498.3(c)

(2013); see also State v. Webb, ___ N.C. App. ___, ___, 742
                                        -6-
S.E.2d 284, 286 (2013) (“Our General Statutes state that counsel

shall    be    appointed    in   accordance   with    rules   adopted    by   the

Office    of     Indigent    Defense     Services.”     (citation,      internal

quotation marks, and alteration omitted)).

    Here, the record indicates that Rick Daniel (“Mr. Daniel”)

was appointed by the court to represent Respondent.                 However, at

the review hearing, Mr. Bradley, an attorney who practices with

Mr. Daniel, appeared instead on Respondent’s behalf.                 Under the

IDS rules concerning the appointment of counsel,

              [t]he attorney named in the appointment
              order shall not delegate to another attorney
              any material responsibilities to the client,
              including representation at critical stages
              of the case, unless the court finds in open
              court that the substitute attorney practices
              in the same law firm as the appointed
              attorney and is on the list of attorneys who
              are   eligible   for   appointment  to   the
              particular case, that the client and the
              substitute attorney both consent to the
              delegation, and that the delegation is in
              the best interests of the client.

IDS Rule 1.5(d)(2) (2013).             Respondent contends that the trial

court’s failure to make findings in open court regarding this

substitution      of   counsel    in    accordance    with    the   above     rule

constituted reversible error.

    Our Court recently addressed this issue in Webb, ___ N.C.

App. at ___, 742 S.E.2d at 286-87.            We explained that where the
                                          -7-
trial court acts contrary to the statutory mandate requiring it

to make findings regarding the substitution of counsel, such

action does not necessarily rise to the level of reversible

error.      Id. at ___, 742 S.E.2d at 286.             Rather, appellants “must

show not only that a statutory violation occurred, but also that

they were prejudiced by this violation.”                 Id. at ___, 742 S.E.2d

at 287.          To demonstrate prejudice, the party must show that

“there      is   a   reasonable     possibility       that,   had    the   error   in

question not been committed, a different result would have been

reached . . . .”        N.C. Gen. Stat. § 15A-1443 (2013).

      In the present case, Respondent has failed to demonstrate

to   this    Court    how     she   was   prejudiced     by   the    trial   court’s

failure to make findings concerning Mr. Bradley’s ability to

serve as her attorney at the review hearing.                    Respondent chose

to leave the courtroom and not participate in the proceeding

despite Mr. Bradley’s cautioning her as to “the likelihood of

the Court’s ruling should she choose not to stay.”

      At     the     review     hearing,        Mr.   Shearer       testified   that

Respondent had failed to complete any of the recommended anger

management and conflict resolution courses, had not obtained a

psychological evaluation as required by her case plan, and —

other than an online parenting class — had failed to take steps
                                               -8-
to comply with the DSS case plan.                      Mr. Shearer also testified

that it was DSS’s recommendation that custody be given to Mr. H.

as he had “completed all services that have been asked of him

and the children seem to be happy in his care.”                         The guardian ad

litem   and    the    Jackson         County    Department      of    Social    Services,

which had also been involved in the case, likewise recommended

that legal custody be given to Mr. H.                            As such, given         the

evidence presented by DSS and the fact that Respondent elected

not   to   participate       in       the   hearing,     we    cannot    say    that    the

outcome of the proceeding would likely have been different if

the trial court had inquired into the circumstances regarding

the substitution of counsel.

II. Termination of Jurisdiction Under Chapter 7B

      Respondent      next    contends          that   the    trial     court   erred    by

terminating jurisdiction under Chapter 7B while her appeal of

the adjudication order was pending.                    We disagree.

      N.C.    Gen.    Stat.       §    7B-1003,        the    statute    governing      the

disposition     of    juvenile          cases    pending      appeal,     provides,     in

pertinent part, as follows

              (b) Pending disposition of an appeal, unless
              directed otherwise by an appellate court . .
              . the trial court shall:

                     (1)   Continue to exercise jurisdiction
                           and conduct hearings under this
                                      -9-
                        Subchapter with the exception of
                        Article   11   of   the   General
                        Statutes; and

                 (2)    Enter orders affecting the custody
                        or placement of the juvenile as
                        the court finds to be in the best
                        interests of the juvenile.

N.C. Gen. Stat. § 7B-1003(b) (2013).

    This statute makes clear that the trial court continues to

possess jurisdiction over a juvenile matter and may address and

modify custodial arrangements while an appeal is pending.                  See

In re M.I.W., 365 N.C. 374, 377, 722 S.E.2d 469, 472 (2012)

(explaining that in enacting N.C. Gen. Stat. § 7B-1003, “the

General Assembly recognized that the needs of the child may

change while legal proceedings are pending on appeal”).                We do

not, however, read N.C. Gen. Stat. § 7B-1003 as compelling the

trial court to retain Chapter 7B jurisdiction during the entire

time in which an appeal is pending, as such a reading would

restrict   the    trial     court’s     ability   to    address      changing

circumstances    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.”        N.C. Gen. Stat. § 7B-1003(b)(2).

    Chapter 7B of the General Statutes specifically authorizes

a trial court to “determine whether or not jurisdiction in the

juvenile   proceeding     should   be   terminated   and   custody    of   the
                                        -10-
juvenile      awarded    to    a    parent     or   other    appropriate   person

pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.”                    N.C.

Gen. Stat. § 7B-911 (2013).             In order to terminate jurisdiction

in the juvenile proceeding and award custody of the child to a

parent under Chapter 50, the trial court must make findings and

conclusions that support the entry of a custody order or, if the

child is already the subject of a civil custody order, make

findings and conclusions that support the modification of the

existing custody order.            N.C. Gen. Stat. § 7B-911(c)(1).

      Finally, the trial court must make the following findings:

              a. There is not a need for continued State
              intervention on behalf of the juvenile
              through a juvenile court proceeding.

              b. At least six months have passed since the
              court   made   a   determination  that   the
              juvenile’s placement with the person to whom
              the court is awarding custody is the
              permanent plan for the juvenile, though this
              finding is not required if the court is
              awarding custody to a parent or to a person
              with whom the child was living when the
              juvenile petition was filed.

N.C. Gen. Stat. § 7B-911(c)(2).

      Here,    the   trial     court   followed     this    statutory   procedure

when terminating jurisdiction over the juvenile proceeding and

entering its order modifying the parties’ prior civil custody.

In   its   orders,      the   trial    court    determined    that   “[t]here   no
                                       -11-
longer exists a need for continued State intervention on behalf

of these children as their father has provided a safe, stable

home for their continued residence.”                The trial court also noted

that the children were residing with Mr. H. when the juvenile

petitions were filed, thereby eliminating the necessity for a

finding concerning the passage of time and the permanent plan

for the children under N.C. Gen. Stat. § 7B-911(c)(2)(b).

      In   its    order    modifying     custody,      the    trial    court    made

findings     of     fact     regarding     the        substantial      change    in

circumstances that had occurred since the entry of the prior

custody    order.          Specifically,      the     court    found    that    (1)

Respondent had admitted to engaging in physical violence toward

Rob and repeatedly hitting him with a belt; (2) Respondent had

refused to enter into a safety plan or otherwise cooperate with

DSS; (3) Respondent called 911 requesting that someone pick up

the minor children because she could not care for them; (4)

Respondent ultimately brought the minor children to Mr. H. and

he assumed care of them; (5) Heather and Rob have been enrolled

in   the   school   district     where    Mr.    H.    resides   and    have    been

excelling in school since being placed with him; (6) Respondent

has failed to exercise visitation or contact the children since

they were removed from her custody; (7) DSS has concluded that
                                             -12-
Mr.   H.    is     a   fit    and   proper    person     to   have    custody    of   the

children; (8) Heather was adjudicated neglected and dependent on

14 January 2014; (9) Rob was adjudicated abused, neglected, and

dependent on 14 January 2014; and (10) Respondent had failed to

complete     her       court-ordered     case       plan.      Respondent       has   not

challenged any of these findings on appeal.

      While this Court very recently reversed the trial court’s

determination that Heather and Rob were dependent juveniles in

our opinion concerning the underlying adjudication order because

they were living with Mr. H. — a parent who is willing and able

to provide for their care and supervision, H.H., ___ N.C. App.

at ___, ___ S.E.2d at ___, we believe that the trial court’s

findings      nevertheless          demonstrate      a      substantial      change    in

circumstances           warranting      modification           even     without       the

adjudication of dependency.                   Indeed, the trial court’s order

makes      clear       that   Respondent’s      physical       abuse    of    Rob,    her

voluntary relinquishment of custody to Mr. H., her refusal to

cooperate with DSS, and the fact that the children were thriving

in Mr. H.’s care, were the primary grounds for its conclusion

that a substantial change in circumstances affecting the welfare

of the children had occurred.                 We also note that our decision in

H.H. concerning the adjudication order did not order any further
                                    -13-
proceedings      that   would   require    the   trial     court   to     reassert

jurisdiction over the children under Chapter 7B.                   Id. at ___,

___ S.E.2d at ___.          Accordingly, we hold that the trial court

acted   within    its   authority   in    terminating      jurisdiction      under

Chapter 7B and entering the custody order pursuant to Chapter 50

while Respondent’s appeal of the adjudication order was pending.

III. Visitation

       Respondent’s final argument is that the trial court erred

in the portions of its orders addressing Respondent’s visitation

rights with Heather and Rob.             In the decretal portion of both

orders, the trial court awarded Respondent a minimum of one hour

per week of supervised visitation with the children “as arranged

upon    [Respondent’s]      reasonable    request    to    [Mr.    H.],    and   as

supervised by [Mr. H.] or someone satisfactory to [Mr. H.].”

Respondent       contends    that   this     award        of   visitation        was

insufficient in providing a minimum outline of the circumstances

under which she may exercise her visitation with Heather and

Rob.

       Our Court has previously explained that when a trial court

awards visitation to a parent, it is “required to provide a plan

containing a minimum outline of visitation, such as the time,

place, and conditions under which visitation may be exercised.”
                                       -14-
In re T.H., ___ N.C. App. ___, ___, 753 S.E.2d 207, 219 (2014);

see also In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647, 652

(2005)    (“An   appropriate       visitation   plan     must    provide   for   a

minimum outline of visitation, such as the time, place, and

conditions under which visitation may be exercised.”).

    In In re W.V., 204 N.C. App. 290, 295, 693 S.E.2d 383, 387

(2010),    we    held   that    the   trial   court’s    order    awarding    the

respondent      “weekly   visitations       supervised     by   petitioner”   was

insufficient to establish a minimum outline for visitation and

required   remand       “for    clarification   of   the    visitation     plan.”

Similarly, in In re J.P., ___ N.C. App. ___, ___, 750 S.E.2d

543, 548 (2013), we concluded that the visitation portion of the

trial court’s order was inadequate where it merely required the

petitioner      to   offer     supervised   visitation     to   the   respondent

every other week and failed to make findings and conclusions “as

to the time, place, and conditions of an appropriate visitation

plan.”

    While the provision for visitation in the present case is

slightly more detailed than those at issue in W.V. and J.P., we

do not believe that it comports with the guidelines established

by our prior cases, which are intended to safeguard a parent’s

rights to visitation.            See E.C., 174 N.C. App. at 522, 621
                                         -15-
S.E.2d   at   652      (“[T]he     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.” (citation, quotation marks,

and brackets omitted)).            The trial court’s orders do not provide

any   guidance      as    to     where     visits     should      occur    and     leave

significant      discretion        to    Mr.    H.        in    scheduling       visits,

determining      who     shall     supervise        the    visits,      deciding     the

duration of the visits (beyond the minimum requirement of one

hour per week), and imposing any other conditions relating to

visitation.      Accordingly, we remand for additional findings and

conclusions as to an appropriate visitation plan for Respondent

that provides, at a minimum, the time, place, and conditions of

Respondent’s visits in file number 09 CVD 660.                          See J.P., ___

N.C. App. at ___, 750 S.E.2d at 548; W.V., 204 N.C. App. at 295,

693 S.E.2d at 387.

                                     Conclusion

      For the reasons stated above, we affirm in part and remand

in part.

      AFFIRMED IN PART; REMANDED IN PART.

      Judges ELMORE and BELL concur.

      Report per Rule 30(e).
-16-
