An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-929

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

IN THE MATTER OF:

Madison County

Nos. 08 JA 29-30

K.R. and M.R.

Appeal by respondent from order entered 12 April 2013 by 

Judge Ted McEntire in Madison County District Court. Heard in 

the Court of Appeals 13 January 2014.

Anna S. Lucas for father-appellee. 

Assistant Appellate Defender Joyce L. Terres for 

respondent-appellant mother. 

Administrative Office of the Courts, by Appellate Counsel 

Tawanda N. Foster, for guardian ad litem.

HUNTER, Robert C., Judge.

Respondent, the mother of the juveniles K.R. and M.R., 

appeals from an order denying her motion for review. After 

careful review, we reverse and remand.

Background
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This matter is before this Court for a second time. The 

full facts of this case are set forth in unpublished opinion In 

re K.R., No. COA10-1380, 2011 WL 1467660 (N.C. Ct. App. April 

19, 2011). 

On 25 August 2008, the Madison County Department of Social 

Services (“DSS”) filed a petition alleging that M.R. was an 

abused, neglected, and dependent juvenile after the juvenile had 

been given a drug, Abilify, for which the juvenile did not have

a prescription. On the same date, DSS also filed a petition 

alleging that M.R.’s sibling, K.R., was a neglected and 

dependent juvenile based on the same facts alleged in the M.R. 

petition. On 27 October 2008, the juvenile court entered an 

order adjudicating the juveniles neglected, and custody was 

granted to DSS. Subsequently, the juvenile court entered a 

permanency planning review order in which it granted 

guardianship of the juveniles to their paternal grandparents. 

Respondent appealed that order, and this Court concluded that 

several of the juvenile court’s findings of fact were either 

unsupported by the evidence or contrary to the evidence. K.R.

at *9. Specifically, this Court held that “there was not enough 

competent evidence upon which the [juvenile] court could award 

guardianship of the juveniles to the paternal grandparents 
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without abusing its discretion.” Id. Accordingly, we reversed 

the juvenile court’s order and remanded for continuation of a 

permanent plan of reunification with respondent. Id. at 9-10. 

A review hearing was held on remand on 15 and 16 August 

2011. The juvenile court ordered that a trial home placement of 

the juveniles with respondent should commence prior to 25 August 

2011. A permanency planning review hearing was held on 20 

February 2012. The court found that the trial placement was 

going well, and that the trial placement and reunification 

efforts should continue. 

On 23 April 2012, the juvenile court held a hearing and 

entered an order terminating DSS’s custody of the juveniles. 

The court noted that the parties had agreed to comply with the 

terms of a Chapter 50 Custody Order entered in Gaston County on 

9 July 2008. 

On 8 February 2013, respondent filed a motion for review. 

Respondent stated that the juveniles continued to reside with 

her pursuant to the juvenile court’s 23 April 2012 order until 

entry of a civil order in Madison County on 19 November 2012. 

The civil order granted immediate primary care, custody, and 

control of the juveniles to the father-appellee (“the father”). 

Respondent was granted supervised visitation. Respondent 
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claimed that she did not receive notice of the 19 November 2012 

hearing and therefore did not appear. Respondent further 

claimed that she had no knowledge of any change of custody until 

the father “appeared at her door with sheriff’s deputies to 

retrieve the minor children.” Along with the motion for review, 

respondent stated that she was filing a Rule 60 motion in civil 

district court seeking to set aside the 19 November 2012 order. 

Respondent sought return of the juveniles to her primary care, 

custody, and control, arguing that the civil court lacked 

jurisdiction because the juvenile court had not terminated its 

jurisdiction of the matter. 

The juvenile court heard respondent’s motion on 25 March 

2013. The court found that the juvenile court had terminated 

its jurisdiction in its 23 April 2012 order. Accordingly, the 

juvenile court declined to consider respondent’s motion. 

Grounds for Appeal

Respondent filed written notice of appeal from the juvenile

court’s order on 26 April 2013, but the certificate of service 

indicates that she did not serve the guardian ad litem or DSS. 

The failure to serve a proper party is a fatal defect which 

deprives this Court of jurisdiction. See N.C.R. App. P. 26(b); 

In Re C.T., 182 N.C. App. 166, 167, 641 S.E.2d 414, 415 
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(dismissing the father’s appeal because “failure to attach a 

certificate of service to the notice of appeal is fatal”), aff’d 

per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007). Respondent, 

cognizant of this deficiency, has filed a petition for writ of 

certiorari. In our discretion, we allow the petition.

Argument

Respondent argues that the juvenile court erred when it 

determined it lacked jurisdiction to hear her motion for review. 

We agree. 

Whether the juvenile court had subject matter jurisdiction 

is a question of law and is reviewed de novo on appeal. Powers 

v. Wagner, __ N.C. App. __, __, 716 S.E.2d 354, 357 (2011). The 

Juvenile Code grants our district juvenile courts “exclusive, 

original jurisdiction over any case involving a juvenile who is 

alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. 

§ 7B–200(a) (2013). “When the [juvenile] court obtains 

jurisdiction over a juvenile, jurisdiction shall continue until 

terminated by order of the court or until the juvenile reaches 

the age of 18 years or is otherwise emancipated, whichever 

occurs first.” N.C. Gen. Stat. § 7B–201(a) (2013).

In In re S.T.P., 202 N.C. App. 468, 473, 689 S.E.2d 223, 

227 (2010), this Court reviewed whether the juvenile court’s 
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dispositional order which placed custody of the juvenile with 

his maternal grandparents had successfully terminated the 

court’s jurisdiction. In its dispositional order following an 

adjudication of neglect and dependency, the juvenile court 

stated that the case was closed. Id. at 471, 689 S.E.2d at 226. 

This Court concluded, however, that the juvenile court did not 

terminate its jurisdiction merely by use of the words “Case 

closed.” Id. at 472, 689 S.E.2d at 227. The Court 

distinguished closing a case from terminating jurisdiction, 

noting that “neither Mother nor Father were returned to their 

pre-petition legal status.” Id. at 472, 689 S.E.2d at 227 

(emphasis added); see also N.C. Gen. Stat. § 7B-201(b) (2013) 

(“When the court’s jurisdiction terminates, whether 

automatically or by court order, . . . [t]he legal status of the 

juvenile and the custodial rights of the parties shall revert to 

the status they were before the juvenile petition was 

filed[.]”). The Court concluded that the parents had not been 

returned to their pre-petition status because the juvenile

court’s order awarded custody to the maternal grandparents, 

awarded limited visitation to the mother, and ordered the father 

to stay off of the maternal grandmother’s property. In re 

S.T.P. at 472-73, 689 S.E.2d at 227.
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In Rodriguez v. Rodriguez, 211 N.C. App. 267, 270, 710 

S.E.2d 235, 240 (2011), this Court determined, sua sponte, that 

the juvenile court maintained subject matter jurisdiction to 

review a custody order. DSS had filed a petition alleging 

abuse, neglect and dependency, and the maternal grandparents 

subsequently filed a Chapter 50 action seeking custody of the 

juveniles. Id. at 269, 710 S.E.2d at 237. On appeal, this 

Court determined that the juvenile court had obtained 

jurisdiction over the juveniles prior to the filing of the 

grandparents’ complaint. Id. at 270, 710 S.E.2d at 238. This 

Court further determined, however, that the juvenile court had, 

in its order in which it returned physical and legal custody of 

the juveniles to the mother, terminated its jurisdiction. Id. 

at 273, 710 S.E.2d at 240. This Court noted that although the

juvenile court ordered that the mother should provide dental and 

medical care and therapy for the juveniles, the juvenile court 

did not specify any details. Id. at 271, 710 S.E.2d at 239. 

This Court further determined that “[b]y relieving DSS and the 

Guardian ad Litem program of responsibility as to the children 

and by vacating ‘any prior custody order’ the juvenile court 

seems to have indicated its intent to end its involvement with 

the children entirely.” Id. at 272, 710 S.E.2d at 239. Thus, 
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this Court concluded that the juvenile review order had returned 

the defendant “to her status prior to the filing of the 

petition[.]” Id. Consequently, this Court held that the 

juvenile court had subject matter jurisdiction to consider the 

plaintiffs’ custody claim because the juvenile matter had been 

terminated. Id. at 273, 710 S.E.2d at 240.

Here, the juvenile court’s order is ambiguous, due in part 

to its brevity. We note, however, that while the juvenile court 

returned joint custody of the juveniles to respondent and the 

father, the court did not relieve the guardian ad litem of any 

further responsibility in the case. Cf. Rodriguez, 211 N.C. 

App. at 272, 710 S.E.2d at 239. The guardian ad litem remains 

appointed “until formally relieved of the responsibility by the

court.” N.C. Gen. Stat. § 7B-601(a) (2013). A guardian ad 

litem appointed to represent a juvenile in accordance with N.C. 

Gen. Stat. § 7B-601(a), and who has not been relieved of this 

responsibility, is authorized to file a motion or petition to 

terminate parental rights. N.C. Gen. Stat. § 7B-1103(a)(6) 

(2011). Thus, the parties were not completely returned to their 

pre-petition status. Rodriguez, 211 N.C. App. at 272, 710 

S.E.2d at 239. Therefore, we hold that the juvenile court did 

not terminate its jurisdiction, and the juvenile court retained
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subject matter jurisdiction to consider respondent’s motion for 

review. Consequently, upon respondent’s motion for review, the 

juvenile court was required to hold a review hearing. See N.C. 

Gen. Stat. § 7B-906(b) (“The Court may not . . . refuse to 

conduct a review hearing if a party files a motion seeking the 

review.”).1 Accordingly, we reverse and remand. 

Conclusion

Based on the foregoing reasons, we reverse the order and 

remand for hearing.

REVERSED AND REMANDED.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).

 

1 The General Assembly has recently merged the provisions 

regarding custody review hearings, N.C. Gen. Stat. § 7B–906, and 

permanency planning hearings, N.C. Gen. Stat. § 7B–907, into one 

provision: N.C. Gen. Stat. § 7B–906.1 (2013). 2013 Sess. Laws

129 §§ 25 and 26. As the proceedings in this matter occurred 

before the amendment’s 1 October 2013 effective date, N.C. Gen. 

Stat. § 7B-906 still applies.