Domestic Relations — Parent & Child – Custody & Visitation – Attorneys – Civil Practice – Appeals – Chapters 7B & 50

C.A.T. v. D.W.H. (In re H.H., Traylor v. Huffman) (Lawyers Weekly No. 15-16-0062, 15 pp.) (Mark Davis, J.) Appealed from Polk & Henderson County District Courts (Peter Knight, J.) N.C. App. Unpub.

Holding: Even though, when the trial court allowed another member of respondent’s counsel’s law firm to represent respondent, the court failed to follow the procedure required by Indigent Defense Service Rule 1.5(d)(2), respondent has not shown that she was prejudiced since she chose to leave the courtroom and not participate in the hearing and since the social worker’s testimony revealed how little respondent had done to try to regain custody of her children.

We affirm the trial court’s award of custody to the children’s father. We remand for further findings as to visitation.

The social worker 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 to comply with the DSS case plan.  The social worker also testified that it was DSS’s recommendation that custody be given to the father 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 the father. 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.

Under G.S. § 7B-1003(b), the trial court may address and modify custodial arrangements while an appeal is pending. G.S. § 7B-911 authorizes a trial court to “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.” The trial court followed statutory procedure when it terminated jurisdiction over the juvenile proceeding and entered its order modifying the parties’ prior civil custody arrangement.

While this court very recently reversed the trial court’s determination that “Heather” and “Rob” were dependent juveniles because they were living with their father — a parent who is willing and able to provide for their care and supervision – we believe that the trial court’s findings nevertheless demonstrate a substantial change in circumstances 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 the father, her refusal to cooperate with DSS, and the fact that the children were thriving in their father’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 In re H.H., No. COA14-650 (filed Dec. 2, 2014) (Lawyers Weekly No. 14-07-1110), concerning the adjudication order did not order any further proceedings that would require the trial court to reassert jurisdiction over the children under Chapter 7B. 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.

However, the trial court’s orders do not provide any guidance as to where respondent’s visits with the children should occur and leave significant discretion to the father in scheduling visits, determining who shall supervise the visits, deciding the duration of the visits, 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.

Affirmed in part; remanded in part.