             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-823

                                Filed: 18 April 2017

Cumberland County, No. 14 JA 392

IN THE MATTER OF: J.K.


      Appeal by respondent-mother from order entered 17 May 2016 by Judge Cheri

L. Siler-Mack in District Court, Cumberland County. Heard in the Court of Appeals

13 March 2017.


      Christopher L. Carr, for petitioner-appellee Cumberland County Department of
      Social Services and Beth A. Hall, for guardian ad litem.

      Robert W. Ewing for respondent-appellant-mother.


      STROUD, Judge.


      Respondent-mother appeals from a permanency planning order and a custody

order, both entered the same day, both of which grant legal and physical custody of

her daughter to respondent-father. We affirm the permanency planning order and

remand for correction of a clerical error. We also reverse and remand the custody

order since it does not comply with the requirements of North Carolina General

Statute § 7B-911 for termination of juvenile court jurisdiction and entry of a civil

custody order enforceable and modifiable under North Carolina General Statute

Chapter 50. On remand, the trial court should enter a new order in accord with North

Carolina General Statute § 7B-911.
                                              IN RE: J.K.

                                          Opinion of the Court



                                             I.      Background

       On 29 September 2014, the Cumberland County Department of Social Services

(“DSS”) filed a juvenile petition alleging that one-year-old Jennifer1 was neglected

and dependent. According to the petition, DSS received two child protective services

referrals in September of 2014. Respondent-mother had a history of problems due to

her mental illness, and she failed to take her medication as prescribed. On 28

September 2014, respondent-mother was admitted to Cape Fear Valley Medical

Center because she was having auditory and visual hallucinations; this was

respondent-mother’s second hospital admission in one month due to the same issues.

Shortly after her admission to the hospital, respondent-mother tested positive for

marijuana. At that time, DSS was unable to locate any suitable relatives to provide

temporary care and supervision for Jennifer, so DSS took Jennifer into non-secure

custody. On 1 December 2014, the trial court had a hearing regarding the non-secure

custody order; the trial court ordered “[t]hat the juvenile shall continue to be placed

in the home with the Respondent Father and Paternal Grandmother.”2 On 18 August

2015, the trial court entered an order adjudicating Jennifer dependent.

       On 17 February 2016, the trial court held a permanency planning hearing. On

17 May 2016, the trial court entered two orders based upon the 17 February 2016


       1   A pseudonym is used to protect the juvenile’s privacy and for ease of reading.

       2 The December 2014 order was not actually entered -- signed and filed -- until 22 April 2016,
nearly two years later.

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                                     Opinion of the Court



hearing. First, the trial court entered an order entitled “Permanency Planning Order

and Order to Close Juvenile Court Case File” (“Permanency Planning Order”).

(Original in all caps.) In the Permanency Planning Order the trial court made

findings of fact regarding both respondents’ and the juvenile’s circumstances. The

trial court also found as follows:

              23.    That the permanent plan of reunification with the
                     Respondent Father has been achieved.

              24.    That a termination of parental rights should not be
                     pursued in this matter inasmuch as the permanent
                     plan of reunification has been accomplished.

              ....

              26.    The Court finds that at this time it would be
                     appropriate to return legal and physical custody of
                     the juvenile to the Respondent Father, . . ., and that
                     will be the Order of the Court. The Court finds that
                     this will achieve the permanent plan of care for the
                     juvenile and that further Judicial Review hearings
                     are no longer necessary. The Court will allow the
                     Department and Guardian ad Litem to close their
                     respective Juvenile Court case files in this matter[.]

The trial court then ordered “[t]hat legal and physical custody of the juvenile . . . shall

be returned to the Respondent Father” and “[t]hat the Cumberland County

Department of Social Service and the Guardian ad Litem should be allowed to close

their Juvenile Court case files[.]” The trial court also released the respondents’ court-

appointed counsel and granted visitation to respondent-mother for an hour of

visitation supervised by respondent–father every other week at a particular


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                                          Opinion of the Court



McDonald’s restaurant.3

       Also on 17 May 2016, the trial court entered another order, entitled simply

“ORDER” (“Custody Order”).4 The brief, two-page Custody Order incorporates the

findings from the Permanency Planning Order.                     The Custody Order includes a

conclusion of law that “North Carolina is the home state of the juvenile[] and this

Court has jurisdiction over the juvenile under the provisions of the Uniform Child

Custody Jurisdiction Enforcement Act for the purpose of entering an Order on

Custody.” The Custody order then grants legal and physical custody of the juvenile

to respondent-father and supervised visitation to respondent-mother, just as set forth

in the Permanency Planning Order. Respondent-mother filed notice of appeal “from

the Review Order changing custody of the above minor child that was filed on May

17, 2016.”

                                        II.     Standard of Review

                         Our review of a permanency planning order is
                         limited to whether there is competent
                         evidence in the record to support the findings
                         and whether the findings support the
                         conclusions of law. The trial court’s findings
                         of fact are conclusive on appeal when
                         supported by any competent evidence, even if
                         the evidence could sustain contrary findings.
                         In choosing an appropriate permanent plan

       3   Previously, DSS had been providing the supervision for visitation.

       4  Within the text of the Custody Order, the trial court calls the order an “Order on Custody[.]”
The Custody Order does not refer to any particular statutory basis for its provisions but only notes
that it was based upon evidence presented “at a Permanency Planning hearing[.]”

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                                   Opinion of the Court



                    under N.C. Gen. Stat. § 7B–906.1 (2013), the
                    juvenile’s best interests are paramount. We
                    review a trial court’s determination as to the
                    best interest of the child for an abuse of
                    discretion.     Questions     of     statutory
                    interpretation are questions of law, which are
                    reviewed de novo by an appellate court.
             Unchallenged findings of fact are deemed to be supported
             by the evidence and are binding on appeal. Moreover,
             erroneous findings that are unnecessary to support the
             trial court’s conclusions of law may be disregarded as
             harmless.

In re A.C., ___ N.C. App. ___, ___, 786 S.E.2d 728, 733 (2016) (citations and quotation

marks omitted).

                            III.   Permanency Planning Order

      Respondent-mother argues that “the trial court erred in granting . . .

Jennifer[’]s custody to the respondent father when it concluded that the return of the

juvenile to the respondents would be contrary [] to the welfare and best interests of

the juvenile.” (Original in all caps.) Specifically, respondent-mother argues the trial

court’s conclusions of law in the Permanency Planning Order are contradictory and

prevent this Court from adequately determining whether granting respondent-father

custody of Jennifer was in her best interests.

      Here, the trial court made the following pertinent conclusions of law:

             2.     No reasonable means were available to protect the
                    juvenile, short of out-of-home placement, because
                    return to the custody of the Respondents would be
                    contrary to the welfare of the juvenile.



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                                  Opinion of the Court



            3.     That the primary permanent plan of reunification
                   with the Respondent Father with a secondary
                   permanent plan of guardianship with the Paternal
                   Grandmother; the Court approves of the permanent
                   plans and the plans are consistent with the
                   juvenile’s best interests.

            4.     That the primary permanent plan has been achieved
                   today.

            5.     That the Respondent Mother . . . is not a fit and
                   proper person for the care, custody and control of the
                   juvenile. That it is in the juvenile’s best interests to
                   have supervised visitation with the Respondent
                   Mother.

            6.     That the Respondent Father . . . is a fit and proper
                   person for the care, custody and control of the
                   juvenile.

            7.     That return of the juvenile to the custody of the
                   Respondents would be contrary to the welfare and
                   best interests of the juvenile.

            8.     That the juvenile remains in need of more care and
                   supervision than the Respondent Mother can
                   provide for the juvenile at this time.

            ....

            10.    That in the best interests of the juvenile, legal and
                   physical custody should be with the Respondent
                   Father . . . .

      Respondent-mother argues that the trial court’s conclusions are contradictory

as conclusions of law 2 and 7 do not support the court’s order awarding custody to

respondent-father because they conclude that the return of Jennifer’s custody to



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                                   Opinion of the Court



“respondents” was contrary to her welfare and best interests. After careful review of

the record, we conclude the references to “the Respondents” instead of “Respondent

Mother” in conclusions of law 2 and 7 were clerical errors. See N.C. Gen. Stat. § 1A-

1, Rule 60(a) (2015).

      Clerical mistakes are “mistakes in judgments, orders or other parts of the

record and errors therein arising from oversight or omission . . . .” Id.

             A clerical error is an error resulting from a minor mistake
             or inadvertence, especially in writing or copying something
             on the record, and not from judicial reasoning or
             determination. When, on appeal, a clerical error is
             discovered in the trial court’s judgment or order, it is
             appropriate to remand the case to the trial court for
             correction because of the importance that the record speak
             the truth.

In re D.B., 214 N.C. App. 489, 497, 714 S.E.2d 522, 527 (2011) (citations, quotation

marks, and brackets omitted).

      After conducting the permanency planning hearing on 17 February 2016, the

trial court made the following unchallenged findings of fact:

             5.     That the juvenile has been placed in the home with
                    the Respondent Father since November 16, 2014.
                    That the juvenile is doing very well in the
                    placement.

             6.     That the Paternal Grandmother is a good support
                    system for the Respondent Father.

             7.     That the juvenile attends day care five (5) days per
                    week. She interacts well with the other children at
                    the day care center. [Jennifer] is on a schedule[]


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                        IN RE: J.K.

                     Opinion of the Court



       for toilet training. The juvenile is able to speak a
       few words.

....

9.     That the juvenile continues to display self injurious
       behaviors such as scratching her face and neck as
       well as grabbing her hair to the point of pulling it
       out.    That Dr. [Smith] at Coastal Carolina
       Neuropsychiatric Center indicated that [Jennifer]’s
       behaviors are most likely due to her lacking a stable
       nurturing environment.      That the Respondent
       Father was provided with techniques to help with
       the behaviors.

10.    That the Respondent Mother is unemployed. She
       receives disability benefits.

....

12.    That the Respondent Mother has history of mental
       health issues and hospitalizations.    That the
       Respondent Mother believes she was in witness
       protection with Cape Fear Valley Medical Center.
       That the Respondent Mother continues to deny
       having any mental health problem and continues to
       refuse to obtain and maintain treatment for her
       mental health issues.

....

15.    That the Respondent Mother has a CPS history in
       Sampson County where she lost custody of two
       children to their father.

16.    That the Respondent Mother has not been compliant
       with recommended Court ordered services.

....



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                                       IN RE: J.K.

                                   Opinion of the Court



             20.    That the Respondent Father is employed with
                    Goodyear. He works as a driver for Uber Car
                    Services and has enrolled in school.

             21.    That the Respondent Father has completed Court
                    ordered services.

             ....

             23.    That the permanent plan of reunification with the
                    Respondent Father has been achieved.

             ....

             26.    The Court finds at this time it would be appropriate
             to return legal and physical custody of the juvenile to the
             Respondent Father . . . and that will be the Order of the
             Court.

      These binding findings of fact, see In re A.C., ___ N.C. App. at ___, 786 S.E.2d

at 733, support the trial court’s conclusion of law 10 that “in the best interests of the

juvenile, legal and physical custody should be with the Respondent Father” which

supports the ultimate decree granting custody of Jennifer to respondent-father’s

custody. Furthermore, the record fully supports a determination that it was in

Jennifer’s best interests to live with respondent-father and not respondent-mother.

Thus, we conclude the references to “the Respondents” in conclusions of law 2 and 7

were clerical errors in that they should read “Respondent Mother” only. Accordingly,

we remand the Permanency Planning Order to the trial court to correct the clerical

errors in conclusions of law 2 and 7 to read “Respondent Mother.”

                                    IV.    Custody Order


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                                   Opinion of the Court



      Respondent-mother next argues “the trial court erred in entering a civil

custody order without first terminating the jurisdiction of the juvenile court and

making the required finding that there was no need for continued State intervention

on behalf of the child.”    (Original in all caps.)       Specifically, respondent-mother

contends the trial court failed to make the requisite findings of fact pursuant to North

Carolina General Statute § 7B-911 to terminate the juvenile court’s jurisdiction

before entering a civil custody order. Again, “[q]uestions of statutory interpretation

are questions of law, which are reviewed de novo by an appellate court.” In re A.C.,

___ N.C. App. at ___, 786 S.E.2d at 733.

      We first note that the Custody Order is not really a “civil custody order” as

contemplated by North Carolina General Statute § 7B-911. The Custody Order was

entered in the juvenile court file and does not include any provisions transferring

jurisdiction of the case to a Chapter 50 custody matter:

                    N.C. Gen. Stat. § 7B–911 specifically provides the
             procedure for transferring a Chapter 7B juvenile
             proceeding to a Chapter 50 civil action. In certain cases
             which have originated as abuse, neglect, or dependency
             proceedings under Chapter 7B of the General Statutes, a
             time may come when involvement by the Department of
             Social Services is no longer needed and the case becomes a
             custody dispute between private parties which is properly
             handled pursuant to the provisions of Chapter 50. N.C.
             Gen. Stat. § 7B–911 sets forth a detailed procedure for
             transfer of such cases which will ensure that the juvenile
             is protected and that the juvenile’s custodial situation is
             stable throughout this transition. For this reason, N.C.
             Gen. Stat. § 7B–911(b) requires that the juvenile court


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                                   Opinion of the Court



             enter a permanent order prior to termination of its
             jurisdiction. After transfer, if a party desires modification
             of the juvenile’s custodial situation under Chapter 50, that
             party must file the appropriate motion for modification and
             demonstrate a substantial change in circumstances
             affecting the best interests of the child. The procedure
             required by N.C. Gen. Stat. § 7B–911 is not a mere
             formality which can be dispensed with just because the
             parties agree to a consent order. Jurisdiction cannot be
             conferred upon the court by consent, but the trial court
             must exercise its jurisdiction only in accordance with the
             applicable statutes.

Sherrick v. Sherrick, 209 N.C. App. 166, 169–70, 704 S.E.2d 314, 317 (2011) (citations

omitted). Indeed, North Carolina General Statute § 7B-911 provides in relevant part:

                    (a)   Upon placing custody with a parent or other
             appropriate person, the court shall determine whether or
             not jurisdiction in the juvenile proceeding should be
             terminated and custody of the 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.

                     (b)    When the court enters a custody order under
             this section, the court shall either cause the order to be
             filed in an existing civil action relating to the custody of the
             juvenile or, if there is no other civil action, instruct the
             clerk to treat the order as the initiation of a civil action for
             custody.
                     ....
                     If the court’s order initiates a civil action, the court
             shall designate the parties to the action and determine the
             most appropriate caption for the case. The civil filing fee is
             waived unless the court orders one or more of the parties
             to pay the filing fee for a civil action into the office of the
             clerk of superior court. The order shall constitute a custody
             determination, and any motion to enforce or modify the
             custody order shall be filed in the newly created civil action
             in accordance with the provisions of Chapter 50 of the


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                                     Opinion of the Court



              General Statutes. The Administrative Office of the Courts
              may adopt rules and shall develop and make available
              appropriate forms for establishing a civil file to implement
              this section.5

                    (c)    When entering an order under this section,
              the court shall satisfy the following:
                    (1)    Make findings and conclusions that support
                           the entry of a custody order in an action under
                           Chapter 50 of the General Statutes . . . .
                    (2)    Make the following findings:
                           a.      There is not a need for continued State
                                   intervention on behalf of the juvenile
                                   through a juvenile court proceeding.

N.C. Gen. Stat. § 7B-911 (2015) (emphasis added).

       Here, after the 17 February 2016 permanency planning hearing, on 17 May

2016 the trial court entered the Permanency Planning Order establishing the

permanent plan as custody with respondent-father, ordering DSS and the guardian

ad litem to close their juveniles case files, and relieving the respondents’ attorneys

from any further duties; all of these provisions indicate that the trial court intended

to terminate juvenile jurisdiction. The trial court’s separate Custody Order returning

legal and physical custody of Jennifer to respondent-father appears to be intended to

transfer the case to be addressed in the future as a Chapter 50 civil custody matter,

but the order does not include the provisions required by North Carolina General




       5 Unfortunately, from our research it appears that no forms for implementation of North
Carolina General Statute § 7B-911 have yet been developed.


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                                  Opinion of the Court



Statute § 7B-911. See id. Specifically, since the respondents did not have another

custody matter already pending, any civil custody order would need to:

                  “instruct the clerk to treat the order as the initiation
                   of a civil action for custody”

                  “initiate[] a civil custody action”

                  “designate the parties to the action and determine
                   the most appropriate caption for the case”

                  “[m]ake findings and conclusions that support
                   the entry of a custody order in an action under
                   Chapter 50 of the General Statutes”

                  make a finding that “[t]here is not a need for
                   continued State intervention on behalf of the
                   juvenile through a juvenile court proceeding.”

Id.

      The trial court’s Custody Order did “[m]ake findings and conclusions that

support the entry of a custody order in an action under Chapter 50”and made findings

which tend to show that “[t]here is not a need for continued State intervention on

behalf of the juvenile through a juvenile court proceeding[,]” although the order did

not use exactly these words. Id. At this point in time, the primary permanent plan

for placement with respondent-father has been in place since 17 May 2016 and we

have affirmed the Permanency Planning Order, with remand for the correction of

minor clerical errors. We also reverse and remand the Custody Order so that the

trial court may on remand enter a civil custody order terminating the juvenile court’s



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                                  Opinion of the Court



jurisdiction in compliance with North Carolina General Statute § 7B-911. The trial

court may, in its sole discretion, hold an additional hearing prior to entry of the new

order on remand.

                                  V.      Conclusion

      For the reasons discussed above, we affirm the Permanency Planning Order

but remand for correction of clerical errors. We reverse and remand the Custody

Order for additional proceedings before the trial court to enter a new order consistent

with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Chief Judge McGEE and Judge McCULLOUGH concur.




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