In re B.K. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-938
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
IN THE MATTER OF: Madison County
No. 11 JA 36
B.K.
Appeal by respondent-mother from order entered 5 October
2012 by Judge F. Warren Hughes in Madison County District Court.
Heard in the Court of Appeals 27 February 2014.
Larry Leake, for petitioner-appellee Madison County
Department of Social Services.
Windy H. Rose, for respondent-appellant mother.
Womble Carlyle Sandridge & Rice, LLP, by Whitney A.
Passmore, for guardian ad litem.
CALABRIA, Judge.
Mother (“respondent”) appeals from a permanency planning
order awarding guardianship of B.K. (“Bryson”)1 to his paternal
grandparents. We affirm in part and remand in part.
I. Background
1
We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
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On 1 August 2011, the Madison County Department of Social
Services (“DSS”) obtained non-secure custody of Bryson after
filing a petition alleging that Bryson’s parents were using
methamphetamine and other drugs and that Bryson was a neglected
and dependent juvenile. The petition also alleged that a Child
Abuse Medical Evaluation had been completed, and the findings
were consistent for neglect due to exposure to domestic violence
and substance abuse. Bryson’s one-year-old niece, who had also
been in the home2, tested positive for methamphetamine in a hair
follicle test. The petition further alleged that respondent was
incarcerated, that Bryson’s father was a fugitive wanted for
felony offenses, and that Bryson had been placed with James and
Judy Fowler, his paternal grandparents. According to the
petition, Bryson’s needs were being met by his grandparents, but
they had no legal means of acquiring medical care or academic
services for him.
The trial court adjudicated Bryson dependent based upon the
consent of both parents. In subsequent disposition orders, the
trial court continued custody of Bryson with DSS and ordered
respondent to comply with her case plan, including completion of
a mental health assessment. The trial court was concerned that
2
Only Bryson is the subject of this appeal.
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respondent needed mental treatment and appointed a Guardian ad
litem for her. The Guardian ad litem reported to the trial
court that respondent had submitted a fraudulent psychological
evaluation to the court during a previous hearing in the instant
case. The court ordered visitation ceased pending further
orders, Bryson’s placement with his grandparents to continue,
“appropriate action” for respondent’s perjury regarding the
false evaluation, and a further permanency planning hearing on
27 August 2012.
At the permanency planning hearing, DSS presented evidence
through the testimony of one social worker. Respondent did not
offer any evidence. In an order entered 5 October 2012, the
trial court found that it was not possible for Bryson to return
home within the next six months and awarded guardianship of
Bryson to his paternal grandparents. Respondent is the only
parent to appeal this order.
As an initial matter, we note that respondent filed her
notice of appeal on 9 May 2013, well outside the thirty day
provision of Rule 3 of the North Carolina Rules of Appellate
Procedure. N.C.R. App. P. 3(c) (2012). Generally, failure to
comply with Rule 3 of our Rules of Appellate Procedure requires
dismissal of the appeal. In re I.S., 170 N.C. App. 78, 84, 611
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S.E.2d 467, 471 (2005). However, under appropriate
circumstances, “[t]his Court can exercise its discretion and
treat an appellant’s appeal as a petition for a writ of
certiorari.” Id. (citations omitted). Since cases regarding
parental rights have such serious consequences and DSS did not
contest respondent’s failure to comply with Rule 3, we exercise
our discretion to grant certiorari and address the merits of
respondent’s appeal.
II. Permanency Planning Hearing
Respondent first argues that the trial court erred by
failing to make sufficient findings required by N.C. Gen. Stat.
§ 7B–907(b) (2011).3 Specifically, she contends that the trial
court failed to make any findings explaining why Bryson could
not be returned home within six months. We disagree.
“The purpose of the permanency planning hearing shall be to
develop a plan to achieve a safe, permanent home for the
juvenile within a reasonable period of time.” N.C. Gen. Stat. §
7B-907(a) (2011). If the juvenile is not returned home, the
3
This section was repealed on 1 October 2013 and replaced by
N.C. Gen. Stat. § 7B-906.1(e) (2013). The effective date is
applicable to actions filed or pending on or after this date.
N.C. Session Laws 2013-129, §§ 25, 26, 41. Because the order at
issue was entered on 5 October 2012, N.C. Gen. Stat. § 7B-907(b)
still applies to respondent’s case.
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statute requires the trial court to consider and make written
findings regarding the relevant statutory factors:
(1) Whether it is possible for the juvenile
to be returned home immediately or within
the next six months, and if not, why it is
not in the juvenile’s best interests to
return home;
(2) Where the juvenile’s return home is
unlikely within six months, whether legal
guardianship or custody with a relative or
some other suitable person should be
established, and if so, the rights and
responsibilities which should remain with
the parents;
. . .
(4) Where the juvenile’s return home is
unlikely within six months, whether the
juvenile should remain in the current
placement or be placed in another permanent
living arrangement and why;
. . .
(6) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-907(b) (2011). “Appellate review of a
permanency planning order is limited to whether there is
competent evidence in the record to support the findings and
[whether] the findings support the conclusions of law.” In re
J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004),
overruled on other grounds by In re R.T.W., 359 N.C. 539, 614
S.E.2d 489 (2005). “If the trial court’s findings of fact are
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supported by any competent evidence, they are conclusive on
appeal.” Id.In the instant case, according to the trial court’s
findings, both of Bryson’s parents were incarcerated, and he had
been in DSS custody for more than twelve months. Respondent had
made limited efforts toward her case plan, and DSS had made
reasonable efforts to reunite the family. The trial court also
found that it was not possible for Bryson to return home in six
months. Bryson’s placement with his paternal grandparents was
an appropriate placement where he was doing well. Both the
Guardian ad litem and DSS agreed that DSS custody should be
terminated and Bryson’s paternal grandparents should be granted
guardianship.
Respondent contends that none of the findings explain why
Bryson could not be returned home within six months. However,
the trial court specifically found that respondent was
incarcerated. The social worker who testified for DSS at the
hearing indicated she did not know whether respondent was
awaiting trial or had been sentenced for the perjury offense
concerning her fraudulent psychological evaluation. The record
also indicates that respondent faced additional pending charges
in Tennessee at the time of the hearing. Respondent’s ongoing
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legal issues and incarceration were also factors in the trial
court’s award of custody to DSS in the 1 August 2011 Non-secure
Custody Order finding Bryson was receiving improper care and
supervision from his parents. Although the trial court’s
findings of fact are sparse, they sufficiently explain why
Bryson could not be returned home within the next six months,
and comply with N.C. Gen. Stat. § 7B-907(b).
III. Guardianship
Respondent also argues that the trial court erred by
awarding guardianship to the grandparents without making the
verifications required by N.C. Gen. Stat. §§ 7B-600 and 7B-
907(f)4 (2011). We agree.
When it is not in a juvenile’s best interests to return
home and a trial court appoints a guardian for the juvenile as
the juvenile’s permanent plan, “the court shall verify that the
person being appointed as guardian of the juvenile understands
the legal significance of the appointment and will have adequate
resources to care appropriately for the juvenile.” N.C. Gen.
Stat. § 7B-600(c) (2011); see also N.C. Gen. Stat. § 7B-907(f)
(2011) (providing for the same verification). This Court has
previously held that the trial court is not required to “make
4
This section was also repealed and replaced by N.C. Gen. Stat.
§ 7B-906.1(j). N.C. Session Laws 2013-129, §§ 25, 26.
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any specific findings in order to make the verification.” In re
J.E., 182 N.C. App. 612, 616–17, 643 S.E.2d 70, 73 (2007).
In J.E., the trial court received into evidence and
considered home study reports for the juveniles’ grandparents,
who were subsequently appointed as guardians. DSS noted that
the maternal grandparents both had raised children in the past,
and were aware of the importance of structure and consistency
for children. The maternal grandparents also understood the
responsibility of caring for the juveniles, were committed to
raising the juveniles, and were financially capable of providing
for the juveniles’ needs. Id. at 617, 643 S.E.2d at 73. This
Court concluded that the findings in the home study reports were
sufficient to demonstrate that the trial court complied with the
requirements of N.C. Gen. Stat. § 7B-907(f) and § 7B-600(c).
Id., 643 S.E.2d at 73.
The length of time that a guardian has successfully raised a
juvenile is also a factor that may support the trial court’s
finding that the guardians understand the legal significance and
have adequate resources. In re R.A.H., 182 N.C. App. 52, 58,
641 S.E.2d 404, 408 (2007).
In the instant case, neither of the grandparents testified
at the hearing. The record includes a DSS court report and a
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guardian ad litem report, as well as a letter from Bryson’s
therapist. However, only the therapist’s letter was presented
at the hearing. No home study report was entered into evidence.
The DSS court report, guardian ad litem report, and letter all
indicate that Bryson was doing well in his placement and that
his grandparents were committed to Bryson’s long term care, but
none of them confirm that his grandparents understood the legal
significance of the appointment or had resources to
appropriately care for Bryson. Nevertheless, the trial court
awarded guardianship to Bryson’s grandparents, but made no
findings that they understood the legal significance of the
appointment or had adequate resources to appropriately care for
Bryson. In addition, while the guardians in R.A.H. had raised
the juvenile for six years, in the instant case Bryson had only
been placed with his grandparents for approximately one year at
the time of the hearing, and no additional evidence was
presented regarding the required verification. Therefore, we
hold that the trial court erred by failing to make the
verifications required by N.C. Gen. Stat. §§ 7B-600(c) and 7B-
907(f).
IV. Conclusion
The trial court’s findings adequately address the relevant
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factors of N.C. Gen. Stat. § 7B-907(b). Where the court found
that Bryson could not be returned home within six months, the
court made additional findings that indicated the incarceration
of both parents was at least one of the reasons. However,
despite the grandparents’ apparent willingness to care for
Bryson, the trial court made no findings and heard no evidence
to indicate that the grandparents were aware of the legal
significance of guardianship or had adequate resources to
appropriately care for Bryson, and therefore failed to complete
the statutorily required verification. Accordingly, we affirm
the portion of the trial court’s order regarding guardianship
for Bryson’s permanency plan and remand to the trial court for
findings regarding appointment of Bryson’s guardians in
accordance with N.C. Gen. Stat. §§ 7B-600(c) and 7B-907(f).
Affirmed in part and remanded in part.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).