Domestic Relations — Parent & Child – Transfer to Chapter 50 Action – Neglect Adjudication – Custody & Visitation

In re J.D.R. (Lawyers Weekly No. 15-07-0646, 21 pp.) (Linda McGee, C.J.) Appealed from Rutherford County District Court (Laura Powell, J.) N.C. App.

Holding: Because the trial court did not make the finding required by G.S. § 7B-911(c)(2)(a) – that there was no need for continued state intervention on the child’s behalf – the trial court erred in terminating its jurisdiction.

We affirm the trial court’s adjudication of neglect but reverse its adjudication of dependency. We affirm the trial court’s award of custody to the child’s father but reverse its termination of jurisdiction and its delegation of discretion to the father in determining the mother’s visitation plan.

The trial court’s order contains neither the ultimate finding required by § 7B-911(c)(2)(a) nor findings from which this court could infer that the trial court considered the extent to which continued state intervention was necessary. The trial court erred in terminating its jurisdiction over the child pursuant to Chapter 7B by transferring the issue of the child’s custody to a Chapter 50 case. We reverse and remand for the trial court to make further findings of fact and conclusions of law.

In its unchallenged findings of fact, the trial court found that the respondent-mother had previous problems with drugs and that she had previously injured the minor child while abusing drugs. It also found that the mother had continued to use drugs illegally, that the mother had hit and kicked the child on or around Oct. 29, 2013, and that she had refused to cooperate with DSS to assess the child’s safety. Moreover, even though the child had been diagnosed with oppositional defiant disorder, the trial court found that the child “treats [the mother] like a friend” and that “[t]his relationship seems to contribute” to the child’s defiant behavior. These findings support the trial court’s conclusion that the child was not receiving proper care and supervision under the care of the mother, and that he was living in an environment injurious to his welfare. Therefore, the trial court’s determination that the child was a neglected juvenile, as defined in G.S. § 7B-101(15), is supported by the evidence.

However, where the trial court made no finding that the mother lacked an alternative child care arrangement, it erred in concluding that the child was a dependent juvenile.

In support of its decision to award custody to the child’s father, the trial court found that the mother tested positive for opiates, amphetamines, and methamphetamines; that the mother showed up late for visits; that the mother’s behavior was erratic during visits; that the father tested negative for drugs; that the father’s residence was appropriate for the child; and that the father had sufficient financial resources to support the child. Further, the trial court made the necessary conclusion that it was in the best interest of the child to award custody to the father. Therefore, we conclude the trial court made sufficient findings pursuant to G.S. § 7B-911(a).

Nevertheless, the trial court improperly delegated its judicial authority by granting the father discretion in determining the terms of the mother’s visitation. Although the disposition order specifies a certain “minimum frequency and length” for some of the mother’s visits and indicates whether those visits must be supervised as required by G.S. § 7B-905.1, the order delegates to the father substantial discretion over other kinds of visitation.

Affirmed in part, reversed in part, and remanded.