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In re J.B.10/4/2005
cle 9 of the Juvenile Code governs dispositions in juvenile proceedings, including review and permanency planning hearings where custody of a juvenile has been removed from a parent. N.C. Gen. Stat. § 7B-900 et. seq. (2004).
These two articles establish distinct statutory schemes but permit simultaneous proceedings. N.C. Gen. Stat. § 7B-1103(a)(3) (2004) states that a county department of social services "to whom custody of the juvenile has been given by a court of competent jurisdiction" may file a petition to terminate the parental rights of either parent. Under N.C. Gen. Stat. § 7B-1102(c) (2004), When a petition for termination of parental rights is filed in the same district in which there is pending an abuse, neglect, or dependency proceeding involving the samejuvenile, the court on its own motion or motion of a party may consolidate the action pursuant to G.S. 1A-1, Rule 42.
In the present case, DSS was a proper petitioner to file a termination petition under N.C.G.S. § 7B-1103(a)(3) because DSS had custody of the children at the time it filed the termination petition. The trial court initially granted DSS custody of the children on 6 March 2003. The trial court ordered that DSS retain custody of the children on 13 March 2003, 3 April 2003 and again on 12 June 2003. Therefore, DSS had custody of the children when it filed the petition to terminate the parental rights of respondent and the children's father on 8 October 2003, and was a proper petitioner under the statute.
The trial court had discretion under N.C.G.S. § 7B-1102(c) to consolidate the review and permanency planning hearings of the neglect proceeding with the termination of parental rights proceeding. The neglect proceeding commenced on 6 February 2003 when DSS filed a petition alleging that the children were neglected. The trial court concluded that the children were neglected juveniles as defined by N.C. Gen. Stat. § 7B-101 on 3 April 2003. The trial court held a review hearing on 12 June 2003 and set the matter for hearing within six months. Therefore, the neglect proceeding was pending when DSS filed its petition to terminate parental rights on 8 October 2003, and the trial court decided not to consolidate the two separate proceedings. The trial court properly adjudicated the article 9 proceeding according to the procedural requirements of that article and decided thetermination proceeding in accordance with the dictates of article 11.
Our Court previously addressed an issue similar to that raised by respondent and determined that an article 9 review hearing was not a prerequisite to the termination of parental rights in In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 69 (2002). In Faircloth, the trial court terminated the parental rights of the respondent. Id. at 567, 571 S.E.2d at 67. On appeal, the respondent argued that the trial judge erred by refusing to recuse himself from hearing the termination of parental rights petition. Id. at 569, 571 S.E.2d at 68. In support of this contention, the respondent argued that the trial court erred by not holding a rehearing in the abuse and neglect proceeding prior to the termination proceeding. Id. at 569, 571 S.E.2d at 69. In rejecting this argument, our Court held:
[The respondent] has failed to show error arising from the trial court's failure to hold a rehearing in the abuse and neglect proceeding prior to the instant case. An adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing. In fact, N.C. Gen. Stat. § 7B-1111 provides grounds for terminating parental rights which are not conditioned on a determination that a child is abused or neglected. N.C. Gen. Stat. §§ 7B-1111(3), (5
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