In re A.S
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-42 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 In the Matter of: Durham County No. 12 J 104 A.S., III Appeal by respondent-father from order filed 27 September 2012 by Judge Nancy E. Gordon in Durham County District Court. Heard in the Court of Appeals 8 May 2013. Assistant Appellate Defender J. Lee Gilliam for respondentfather appellant. Assistant County Attorney Robin K. Martinek County Department of Social Services appellee. Appellate appellee. Counsel Tawanda Foster for for guardian ad Durham litem McCULLOUGH, Judge. This appeal stems from an Adjudication-Disposition Order entered by the trial court on 27 September 2012, concerning four children with the same mother but different fathers. Respondent-father, the father of one of the children, appeals. For the following reasons, we dismiss the appeal. I. Background -2The child whose welfare is at stake in this appeal, A.S. III, was born 24 November 2008. At that time, respondent-father and A.S. III s mother were in a serious relationship and had lived together in Durham County for approximately one year. In February 2009, approximately 3 months after the birth of A.S. III, respondent-father lost his job, enlisted in the military, and left for boot camp. During the time respondent-father was away at boot camp, the mother began a relationship with another man and became pregnant, ending respondent-father s and the mother s relationship. Upon respondent-father s completion of boot camp, respondent-father moved to Colorado Springs, Colorado, where he was stationed. Respondent-father began a year-long deployment to Afghanistan in June 2011 and returned in June 2012. respondent-father s deployment, through relocation respondent-father telephone Additionally, calls to kept and respondent-father Colorado in Springs contact visits remained with while up Despite to A.S. on date and III leave. on all support obligations through the entry of the 27 September 2012 Adjudication-Disposition Order giving rise to this appeal. On 18 February 2012, while respondent-father was deployed, a domestic altercation occurred between the mother and her -3boyfriend. Police responded to the incident. As a result of comments by the mother indicating that she was going to harm herself, police evaluation. transported the mother to the hospital for While hospitalized, the mother tested positive for marijuana, cocaine, and opiates. Durham County Department of Social a Services ( DSS ) received incident on 21 February 2012. report on the domestic At that time, DSS chose not to take action regarding A.S. III, because A.S. III was safely in the custody of his maternal grandmother. On 23 May 2012, the maternal grandmother reported to DSS that the mother threatened to remove A.S. III and his siblings from her care. As a result, on 4 June 2012, DSS filed a petition alleging A.S. III and his siblings were neglected and dependent. An adjudication hearing began on 3 August 2012 and concluded on 29 August 2012 with the trial court adjudicating the children neglected. A disposition hearing then began immediately following adjudication and concluded on 30 August 2012. Respondent-father was present. As noted above, the trial court entered an AdjudicationDisposition Order on 27 September 2012. In regard to A.S. III, the trial court concluded that A.S. III was neglected and that the mother and respondent-father had acted inconsistent with -4their constitutionally protected parental rights. The trial court then determined it was in A.S. III s best interest that respondent-father maternal have grandmother legal custody maintain of III while the custody physical A.S. of A.S. III. Additionally, the court granted respondent-father unsupervised visitation and ordered respondent-father to maintain a cell phone where he can [be] reached for legal decision about [A.S. III] within one half hour and complete a parenting class. Respondent gave notice of appeal from the Adjudication- Disposition Order on 26 October 2012. II. Analysis On appeal, respondent-father regarding the Disposition concluding trial Order: he acted court s whether 27 raises the following September the inconsistent trial with 2012 court his issues Adjudicationerred in (1) constitutionally protected parental rights; (2) awarding him legal custody but physically placing A.S. III with the maternal grandmother; (3) failing to establish a definitive visitation schedule; and (4) ordering him classes were to attend available parenting in classes Colorado without Springs. verifying Although we recognize respondent-father s arguments have some merit, we do -5not reach the issues on appeal as they are moot following the trial court s 11 March 2013 Review Order. In state courts, the general refusal to decide moot cases is a form of judicial restraint. In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978). As explained by our Supreme Court, Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law. Unlike the question of jurisdiction, the issue of mootness is not determined solely by examining facts in existence at the commencement of the action. If the issues before a court or administrative body become moot at any time during the course of the proceedings, the usual response should be to dismiss the action. Id. at 147-48, 250 S.E.2d at 912 (citations omitted). In juvenile cases, adjudication and disposition orders are not final but subject to review and modification based on the continuing circumstances of each case. See generally N.C. Gen. Stat. Chapter 7B (2011). In this pursuant to case, on 11 January 2013, N.C. Gen. Stat. § 7B-1000(a) DSS filed a motion seeking review and modification of the trial court s disposition as it related to -6A.S. III. On 23 January 2013, an Order for Nonsecure Custody was placing filed A.S. III in nonsecure custody with DSS, approving placement with A.S. III s maternal grandmother, and scheduling the matter for further hearing on 30 January 2013 to determine the need for continued nonsecure custody. A review hearing of the 27 September 2012 Adjudication-Disposition Order was then held on 30 January 2013 as required by N.C. Gen. Stat. § 7B-906. The Respondent-father was not present. trial court filed a Review modifying the previous disposition. Order on 11 March 2013 Pertinent to this appeal, the trial court made the following findings: 19. [Respondent-father] . . . lives in Colorado Springs, Colorado. At last contact with . . . DSS, [respondent-father] was in the military and had been married for four years. [Respondent-father] has not had contact with [the social worker] since November 2012. The social worker has made numerous attempts to contact [respondentfather] during December 2012, but [respondent-father] has not responded to her calls. The social worker called Colorado Department of Health and Human Services, and they were not able to locate him at his listed address. The phone number [respondent-father] previously provided is no longer a working number. The social worker has contacted the military base [respondent-father] was stationed at, and [respondent-father] is no longer stationed at that base. [Respondent-father] has an order garnishing his military wages for child support nevertheless no child support -7has been received in since October 2012. These changes lead this Court to believe that [respondent-father] is no longer serving in the military and that his present whereabouts and circumstances are unknown. 20. The Mother reports that she has had contact with [respondent-father], but he has not inquired about [A.S. III]. The Mother has not been able to provide [respondent-father s] new number to the social worker. . . . . 25. [Respondent-father] has not visited [A.S. III] since October 2012, and has not had phone contact since November 2012. [Respondent-father] has visited his child one time at the daycare since the Adjudication-Disposition hearing in October 2012. 26. By failing to maintain contact with . . . DSS and his child, by failing to notify DSS about the apparent changes in his housing, contact information and employment, and not participating in and taking advantage of the opportunities to visit with his child, [A.S. III], both in Durham and in Colorado, respondent-father has acted inconsistent with his parental rights. Based on these findings and pursuant to the trial court s authority to review custody orders, see N.C. Gen. Stat. § 7B1003(b)(1) (2011) (Providing that a trial court shall [c]ontinue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes and [e]nter orders affecting the custody or placement -8of the juvenile as the court finds to be in the best interests of the juvenile[,] pending disposition of an appeal[]), the trial court then determined it was in the best interest of A.S. III that DSS have legal custody while grandmother maintain physical custody. A.S. III s maternal Additionally, the trial court altered respondent-father s visitation to allow supervised visitation. As a result of the trial court s additional findings concerning respondent-father s disregard for A.S. III and the trial court s 27 September 2012 Adjudication-Disposition Order, and as a result the trial court s modifications to custody and visitation, a determination by this Court of the issues now on appeal will have no practical effect. are moot. Consequently, the issues See Roberts v. Madison County Realtors Ass n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) ( A case is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. ). Despite the fact that the issues on appeal are moot, our appellate general courts rule recognize that moot at least five cases should be exceptions dismissed. to In the re Investigation Into Injury of Brooks, 143 N.C. App. 601, 604, 548 S.E.2d 748, 751 (2001). Although respondent-father contends -9that the issues on appeal are not moot, respondent-father argues in the alternative that, if the issues are moot, the exceptions to the mootness doctrine for issues that involve collateral legal consequences are capable of repetition yet evading review, or concern matters in the public interest, apply. We disagree and hold the exceptions inapplicable in the present case. First, in regard to collateral legal consequences, respondent-father is correct that a finding that a parent has acted inconsistent with his parental rights may have collateral legal consequences in later actions. Nevertheless, in the present case, a reversal of the 27 September 2012 AdjudicationDisposition Order will have no practical effect, because the trial court made additional findings in the 11 March 2013 Review Order that respondent-father had acted inconsistently with his rights as a parent by failing to maintain contact with A.S. III and disobeying the 27 September 2012 Adjudication-Disposition Order. Second, in regard to the exception for cases capable of repetition yet evading review, the reason the appeal in the present case is moot is not because the challenged action is too short in duration to be fully litigated on appeal, but because respondent-father disregarded Adjudication-Disposition Order, the 27 resulting September in a change 2012 in -10circumstances warranting modification of the prior disposition. Lastly, in regard to the public interest exception, respondentfather argues that this case presents the opportunity for this Court to determine what actions service members must undertake while deployed constitutionally in order protected to rights avoid as forfeiting parents. their Although we recognize that service members face unique circumstances when deployed, we refuse to establish a minimum standard of care by which service members responsibilities. may fulfill their parental As this Court has recognized, [t]here is no bright line rule to determine what conduct on the part of a natural parent will result in a constitutionally protected status[.] forfeiture of the Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999). III. Conclusion For the reasons discussed above, we will not address the moot arguments of respondent-father, who has demonstrated a lack of interest in A.S. III Adjudication-Disposition respondent-father s and Order. appeal Adjudication-Disposition Order. Dismissed. disregarded from the Therefore, the 27 trial we court s dismiss September 2012 -11Judges CALABRIA and STEELMAN concur. Report per Rule 30(e).
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