In re: J.D.M-J. & O.M.L.J. , 817 S.E.2d 755 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1328
Filed: 19 June 2018
Cabarrus County, Nos. 16 JA 91-92
IN THE MATTER OF: J.D.M.-J., O.M.L.J.
Appeal by respondent from order entered 25 August 2017 by Judge Christy E.
Wilhelm in Cabarrus County District Court. Heard in the Court of Appeals 31 May
2018.
Hartsell & Williams, PA, by H. Jay White and Austin “Dutch” Entwistle III, for
petitioner-appellee Cabarrus County Department of Human Services.
J. Thomas Diepenbrock for respondent-appellant.
Poyner Spruill LLP, by Caroline P. Mackie, for guardian ad litem.
DAVIS, Judge.
A.M. (“Respondent”) appeals from an order that awarded custody of her minor
children J.D.M.-J. (“Jacob”)1 and O.M.L.J. (“Opal”) to their aunt and uncle in Arizona,
terminated the juvenile proceeding, and transferred the matter for entry of a civil
custody order under Chapter 50 of the North Carolina General Statutes. On appeal,
she argues that the trial court failed to (1) comply with the statutory procedure for
terminating the proceeding in juvenile court; (2) ensure compliance with the
1Pseudonyms and initials are used throughout this opinion to protect the identities of the
minor children and for ease of reading.
IN RE: J.D.M.-J.
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Interstate Compact on the Placement of Children (the “ICPC”); (3) verify that the
custodians possessed adequate resources and understood the legal significance of the
placement of the children in their custody; and (4) comply with statutory
requirements in establishing Respondent’s visitation rights. After a thorough review
of the record and applicable law, we vacate the trial court’s order and remand for
further proceedings.
Factual and Procedural Background
Respondent is the mother of Opal and Jacob.2 Opal was born in December
2006 and Jacob in September 2008. In December 2014, the Cabarrus County
Department of Human Services (“DHS”) received a report that Respondent had not
been properly monitoring Jacob’s blood sugar levels in connection with his juvenile
diabetes and that the house was not clean or safe for the children.
In December 2015 and January 2016, DHS received numerous reports alleging
that (1) there was fighting in the home between Respondent and her oldest child
(“April”)3; (2) Respondent was not properly caring for Jacob’s diabetes; (3) Opal was
not receiving her ADHD medication as prescribed; (4) Jacob was missing school; and
(5) Opal and Jacob were attending school with inadequate clothes and inattention to
personal hygiene.
2 The children’s father is deceased.
3 April was not a subject of the order from which appeal is being taken and, therefore, her
status is not at issue in this appeal.
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DHS began providing in-home services to the family in response to these
reports. In April and May 2016, DHS received new reports stating that Respondent
was providing inadequate care for both children’s medical needs, Opal had been
disruptive at school, and Opal was being physically abused by April at home.
On 20 June 2016, Respondent was hospitalized, and Opal and Jacob were
staying with a family friend. The friend reported that she was not comfortable caring
for the children while Respondent was in the hospital. On 22 June 2016, DHS filed
juvenile petitions alleging that Opal and Jacob were neglected juveniles. The
children were placed in nonsecure custody with DHS the same day. On 11 August
2016, Respondent consented to an order that adjudicated the children to be neglected,
established a primary permanent plan of reunification with a secondary permanent
plan of guardianship, and required her to comply with a case plan.
A permanency planning hearing was held on 10 August 2017 before the
Honorable Christy E. Wilhelm in Cabarrus County District Court. Respondent
testified at the hearing along with Lisa Fullerton and Rachel Willert, two social
workers employed by DHS.
On 25 August 2017, the trial court entered a permanency planning order
awarding custody of Opal and Jacob to Beverly and Johnnie Worley (the children’s
maternal aunt and uncle), who lived in Phoenix, Arizona. The court terminated
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jurisdiction in the juvenile action and ordered that the matter be transferred to a
Chapter 50 civil custody action. Respondent filed a timely notice of appeal.
Analysis
On appeal, Respondent argues that the trial court erred by failing to (1) make
necessary findings required under N.C. Gen. Stat. § 7B-911 before terminating
jurisdiction in the juvenile action; (2) ensure compliance with the ICPC; (3) verify
that the Worleys had adequate resources to serve as custodians and that they
understood the legal significance of the placement of the children in their custody;
and (4) make statutorily required findings regarding Respondent’s visitation rights.
We address each argument in turn.
I. Findings Required by N.C. Gen. Stat. § 7B-911
Respondent initially contends — and both DHS and the guardian ad litem
(“GAL”) concede — that the trial court failed to make required findings in connection
with the portion of its order terminating the juvenile proceeding and initiating a civil
action under Chapter 50. N.C. Gen. Stat. § 7B-911(c) provides, in relevant part, as
follows:
(a) Upon placing custody with a parent or other
appropriate person, the court shall 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.
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(b) When the court enters a custody order under this
section, the court shall either cause the order to be
filed in an existing civil action relating to the custody
of the juvenile or, if there is no other civil action,
instruct the clerk to treat the order as the initiation
of a civil action for custody.
....
If the court’s order initiates a civil action, the court
shall designate the parties to the action and
determine the most appropriate caption for the
case. . . . The order shall constitute a custody
determination, and any motion to enforce or modify
the custody order shall be filed in the newly created
civil action in accordance with the provisions of
Chapter 50 of the General Statutes. . . .
(c) When entering an order under this section, the court
shall . . . .
....
(2) Make the following findings:
a. There is not a need for continued State
intervention on behalf of the juvenile through
a juvenile court proceeding.
b. At least six months have passed since the
court made a determination that the juvenile’s
placement with the person to whom the court
is awarding custody is the permanent plan for
the juvenile, though this finding is not
required if the court is awarding custody to a
parent or to a person with whom the child was
living when the juvenile petition was filed.
N.C. Gen. Stat. § 7B-911 (2017) (emphasis added).
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Here, it is undisputed that the trial court made no findings satisfying either
subsection (2)(a) or (2)(b). Nor do the findings it did make allow this Court to infer
that these statutory provisions were met. See In re A.S., 182 N.C. App. 139, 144, 641
S.E.2d 400, 403-04 (2007) (upholding order that failed to contain explicit findings
under N.C. Gen. Stat. § 7B-911(c)(2) but made findings demonstrating that trial court
no longer considered DSS intervention necessary).
Indeed, the trial court’s order is internally inconsistent. On the one hand, it
requires continued involvement with the juveniles by DHS by stating the following:
6. CCDHS should continue to make reasonable
efforts to prevent or eliminate the need for placement of the
juveniles.
....
9. The juveniles’s [sic] placement and care are
the responsibility of CCDHS and the agency shall arrange
for the foster care or other placement of the juvenile.
CCDHS is granted the authority or [sic] to obtain medical
treatment, educational, psychological, or psychiatric
treatment and services as deemed appropriate by CCDHS.
On the other hand, however, the order states as follows:
3. The court grants custody of the juveniles to
Beverly and Johnnie Worley.
....
8. This matter is closed. CCDHS and the GAL
are released from this matter.
9. This case is transferred to a Chapter 50
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Action.
These conflicting provisions cannot be reconciled. On remand, we instruct the
trial court to determine whether or not DHS should continue to have a role over the
placement and care of the children or, alternatively, whether it should be released
from further obligations. In the event the trial court determines that no further
involvement by DHS is necessary, we direct the court to make the findings required
by N.C. Gen. Stat. § 7B-911(c)(2).
II. Noncompliance With ICPC
Respondent next contends that the trial court erred in awarding custody to the
Worleys in Arizona without ensuring that the provisions of the ICPC had been
satisfied. We agree.
In entering a dispositional order that places juveniles in out-of-home care,
the court shall first consider whether a relative of the
juvenile is willing and able to provide proper care and
supervision of the juvenile in a safe home. . . . Placement
of a juvenile with a relative outside of this State must be in
accordance with the Interstate Compact on the Placement
of Children.
N.C. Gen. Stat. § 7B-903(a1) (2017).
The ICPC provides, in pertinent part, as follows:
No sending agency shall send, bring, or cause to be sent or
brought into any other party state any child for placement
in foster care or as a preliminary to a possible adoption
unless the sending agency shall comply with each and
every requirement set forth in this Article and with the
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applicable laws of the receiving state governing the
placement of children therein.
N.C. Gen. Stat. § 7B-3800, Article III(a) (2017) (emphasis added). The ICPC further
requires that before a child is sent to the receiving state, “the receiving state shall
notify the sending agency, in writing, to the effect that the proposed placement does
not appear to be contrary to the interests of the child.” N.C. Gen. Stat. § 7B-3800,
Article III(d).
DHS and the GAL argue that the children’s placement with the Worleys was
neither a “placement in foster care” nor “as a preliminary to a possible adoption,”
meaning that the ICPC does not apply. We have previously rejected a similar
argument. In re V.A., 221 N.C. App. 637, 727 S.E.2d 901 (2012), involved a child who
was placed in the custody of an out-of-state relative without notification from the
receiving state that the placement did not appear to be contrary to the interests of
the child. Id. at 639-40, 727 S.E.2d at 903. We determined that the trial court was
required to comply with the ICPC, stating as follows:
The ICPC requires that before a juvenile can be placed with
an out-of-state relative “the receiving state shall notify the
sending agency, in writing, to the effect that the proposed
placement does not appear to be contrary to the interests
of the child.” N.C. Gen. Stat. § 7B-3800, Article III(d). This
Court has previously interpreted the statutory preference
for relative placements in harmony with the ICPC, and
held that “a child cannot be placed with an out-of-state
relative until favorable completion of an ICPC home
study.” In re L.L., 172 N.C. App. 689, 702, 616 S.E.2d 392,
400 (2005) (holding that the statutory preference for
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relative placement and compliance with the ICPC are not
mutually exclusive).
Id. at 640, 727 S.E.2d at 904.
We further rejected the argument that the child’s placement with relatives did
not constitute “foster care.”
According to Regulation 3(4)(26), “foster care” is “24-hour
substitute care for children placed away from their parents
or guardians and for whom the state agency has placement
and care responsibility . . . [which] includes . . . foster
homes of relatives” “regardless of whether the foster care
facility is licensed and payments are made by the state or
local agency for the care of the child.” Ass’n of Adm’rs of
the ICPC (AAICPC), Reg. No. 3 (amended May 1, 2011).
The ICPC defines “placement” as “the care of a child in a
family free or boarding home . . . .” N.C. Gen. Stat. §7B-
3800, Article II(d). A “family free” home, counter
intuitively, is “the home of a relative or unrelated
individual whether or not the placement recipient receives
compensation for care or maintenance of the child.”
AAICPC, Reg. No. 3(4)(24) (emphasis added).
Id. at 641 n.1, 727 S.E.2d at 904 n.1. Thus, we concluded that the custody placement
with the out-of-state relatives was a “placement in foster care,” thereby triggering the
requirements of the ICPC. Id. at 641, 727 S.E.2d at 904.
In arguing that the ICPC does not apply on these facts, DHS and the GAL
direct our attention to In re J.E., 182 N.C. App. 612, 643 S.E.2d 70, disc. review
denied, 361 N.C. 427, 648 S.E.2d 504 (2007). In that case, the respondent-mother
argued that the trial court had erred because DSS had not conducted a home study
pursuant to the ICPC before placing her children with their maternal grandparents,
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who lived in Virginia. We held that placement of the minor children with their
grandparents did not constitute “foster care” and was not “preliminary to adoption”
for purposes of the ICPC. Id. at 615, 643 S.E.2d at 72 (citation and quotation marks
omitted). Thus, we held that compliance with the ICPC was not required. Id.
We acknowledge that the holdings of J.E. and V.A. are in conflict on this issue.
It is axiomatic that we are bound by the prior decisions of this Court. See In re Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been overturned by a higher
court.”). However, “it is also well settled that where there is a conflicting line of cases,
a panel of this Court should follow the older of those two lines.” Graham v. Deutsche
Bank Nat’l Tr. Co., 239 N.C. App. 301, 306, 768 S.E.2d 614, 618 (2015) (citation and
quotation marks omitted).
Although J.E. predates V.A., this Court in V.A. expressly relied on our earlier
decision in In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005), that “a child cannot
be placed with an out-of-state relative until favorable completion of an ICPC home
study.” Id. at 702, 616 S.E.2d at 400. Because L.L. was decided before J.E., we
conclude that we are bound by the L.L./V.A. line of cases.
Based on that line of cases, the ICPC required that Arizona notify DHS the
proposed placement of Jacob and Opal did not appear to be contrary to the interests
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of the children. Because DHS had not received such notification from the appropriate
Arizona agency prior to entry of the permanency planning order, the trial court was
not authorized to award custody of Opal and Jacob to the Worleys. Accordingly,
before any decision is made on remand to once again award custody of the juveniles
to the Worleys, the trial court must first confirm that DHS received the required
notification from the Arizona agency as mandated by the ICPC.
III. Verifications Concerning Proposed Custodians
Respondent next contends that the trial court erred in awarding custody of the
juveniles to the Worleys without first verifying both that (1) the couple had adequate
resources to care for the children; and (2) understood the legal significance of the
placement. We agree.
N.C. Gen. Stat. § 7B-906.1(j) states as follows:
If the court determines that the juvenile shall be placed in
the custody of an individual other than a parent or appoints
an individual guardian of the person pursuant to G.S. 7B-
600, the court shall verify that the person receiving custody
or being appointed as guardian of the juvenile understands
the legal significance of the placement or appointment and
will have adequate resources to care appropriately for the
juvenile.
N.C. Gen. Stat. § 7B-906.1(j) (2017).
In its order, the trial court made the following findings of fact regarding the
Worleys:
8. CCDHS initiated an Interstate Compact on
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Placement of Children, hereinafter referred to as ICPC. All
of the paperwork and information needed to comply with
the ICPC submission to the state office in Raleigh, North
Carolina has been provided by Mr. and Mrs. Worley
including criminal checks and financial background
information. CCDHS did an independent assessment by
using the ICPC template to verify on their own the other
steps and requirements taken in an ICPC. An ICPC
assessment by Arizona has not been completed.
9. CCDHS FCS Supervisor Rachel Willert
assessed the appropriateness and feasibility for possible
placement . . . of [Opal] and [Jacob] with a maternal aunt
and uncle, Beverly and Johnnie Worley in Phoenix, AZ.
CCDHS FCS Supervisor Rachel Willert traveled to the
Worley home, interviewed the family members, the Worley
children, and extended relatives. CCDHS found no
concerns and the Worley home was safe and appropriate.
10. Beverly and Johnnie Worley are the maternal
aunt and uncle of the juveniles. The juveniles have had
substantial contact with Mr. and Mrs. Worley during their
lifetime. Most recently, Mrs. Worley and the juveniles’
cousin came to stay with mother for approximately one
month. During that time, Mrs. Worley had significant
interaction with the juveniles. CCDHS met with mother,
the juveniles, and Mrs. Worley during this visit. It was
apparent that the juveniles had a strong bond in
connection with their relatives.
11. Beverly Worley recently retired from a human
services position after 25 years of service. Mr. Worley
works with a funeral home on an as-needed basis. The
Worley home currently has Mr. and Mrs. Worley along
with their 18-year-old son who recently graduated from
high school. The Worley’s [sic] have two other children who
are grown and out of the home. One is working and college
[sic] and one is in the military. The Worley’s [sic]
comfortably live off of Mrs. Worley’s retirement and Mr.
Worley’s income from the funeral home work.
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12. Mr. and Mrs. Worley are financially stable
and able to provide for the financial needs of the juveniles.
Mr. and Mrs. Worley have proven the ability to provide
medical care to their own child . . . . Mr. and Mrs. Worley
have family within their community as well as extended
family outside of their community for support and contact.
Mr. and Mrs. Worley are willing and able to provide for the
support and care for the juveniles. Mr. and Mrs. Worley
have investigated the potential schools and medical care
for the children to attend.
13. CCDHS met with or interviewed the Worley
children. The youngest child was interviewed in Cabarrus
County as well as in his home in Phoenix, AZ. Both
CCDHS worker’s [sic] found this Worley son to be
engaging, respectful, and attentive.
This Court has held that N.C. Gen. Stat. § 7B-906.1(j) does not require the trial
court to “make any specific findings in order to make the verification.” J.E., 182 N.C.
App. at 616-17, 643 S.E.2d at 73. However, we have made clear that the record must
show the trial court received and considered reliable evidence that the guardian or
custodian had adequate resources and understood the legal significance of custody or
guardianship. See, e.g., In re E.M., __ N.C. App. __, __, 790 S.E.2d 863, 872 (2016)
(“[N]o evidence in the record supports the court’s finding that either of the custodians
understand the legal significance of the placement.”); In re P.A., 241 N.C. App. 53, 65,
772 S.E.2d 240, 248 (2015) (trial court’s order was not compliant with N.C. Gen. Stat.
§ 7B-906.1(j) because “there [wa]s no evidence at all of what [the custodian]
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considered to be ‘adequate resources’ or what her resources were, other than the fact
that she had been providing a residence for [the child]”).
Here, although the trial court made findings regarding the adequacy of the
Worleys’ financial resources to provide for the needs of Jacob and Opal, the court did
not receive evidence that was sufficient to support these findings. The court accepted
into evidence a report created by DHS that made no mention of the Worleys’ actual
income or their specific financial resources. The report merely stated that DHS was
“currently in the process of assessing the appropriateness and feasibility of placement
for [Opal] and [Jacob] with [the] maternal aunt and uncle.”
The trial court also heard testimony from Fullerton regarding the Worleys’
financial resources:
[COUNSEL:] And have you checked [the
prospective guardians’] finances?
[FULLERTON:] Yes.
[COUNSEL:] And what did you do to check their
finances?
[FULLERTON:] Well, we gave them some forms to
fill out to list their finances on. And, you know, I didn’t
have a reason to question what they stated was retirement,
you know, benefits that [the maternal aunt] is receiving
every month, and then they have additional information
[sic] income that is not -- for her husband. He works at the
funeral home and that’s not always consistent [sic] job. It’s
kind of based on when the services are needed, so they don’t
count on that income. It’s extra for them.
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[COUNSEL:] Have you done any criminal
background checks?
[FULLERTON:] Yes.
[COUNSEL:] Have you requested an ICPC home
study?
[FULLERTON:] Yes, we did.
[COUNSEL:] And what does that normally include?
What do they do when they complete that home study?
[FULLERTON:] I’m not sure.
[COUNSEL:] Have you been able to do any
independent verification of their finances?
[FULLERTON:] I haven’t had a reason to, no.
[COUNSEL:] How much time have you spent with
the Worleys?
[FULLERTON:] Probably a limited amount. We’ve
just had a number of telephone conversations when Miss
Worley was here for about a month in the month of June.
And, you know, we spent some time together in conjunction
with visits to Miss Miller’s home. She also participated in
CFT meeting [sic], and we had some conversations after
that meeting after that. We have continued to maintain
phone contact with her and to discuss her interest in and
feasibility of her, you know, receiving custody of the
children if it didn’t work out with Miss Miller and so those
conversations have just -- I guess increased as we’ve gotten
a lot closer to the time.
Willert also testified as follows on this issue:
[COUNSEL:] How about the finances in regards to
Mr. and Mrs. Worley?
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[WILLERT:] A financial affidavit was
completed . . . .
[COUNSEL:] Were there any concerns?
[WILLERT:] No.
[COUNSEL:] Was there any independent
verification of the incomes and the information in the
affidavit?
[WILLERT:] We didn’t do the checks. It was sent
off with the ICPC for verification, but that would be as easy
as looking generally for a home study when they have that
-- all it is is verifying a bank statement for deposit.
While this testimony constituted evidence that the Worleys did possess some
income, it did not state the amount of that income or demonstrate that it was
sufficient to provide necessary care for the juveniles. Moreover, the social worker’s
statement that there were no concerns with the Worleys’ financial affidavit is too
vague to constitute adequate evidence that they did, in fact, possess adequate
resources to care for the juveniles.
DHS and the GAL cite J.E. in support of their argument regarding the
adequacy of the evidence on this issue. In J.E., a department of social services report
was provided to the trial court stating that a home study of the custodians’ house had
been conducted by the department. J.E., 182 N.C. App. at 617, 643 S.E.2d at 73. We
held that the home study report supported the trial court’s determination that the
custodians had adequate resources to care for the minor child. Id. Here, conversely,
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while a home study had been requested, there was no testimony as to the results of
the study or whether it had even been completed.
DHS and the GAL point to additional testimony stating that the Worleys (1)
have three children of their own; (2) maintain “a stable home and a good home;” and
(3) arranged schooling for Opal and Jacob in Arizona and made medical appointments
for them. However, none of this evidence is sufficient to comply with N.C. Gen. Stat.
§ 7B-906.1(j). As discussed above, the trial court did not receive evidence regarding
the Worleys’ financial resources that was specific enough to enable the court to verify
that they possessed adequate resources to provide for the needs of the juveniles. See
P.A., 241 N.C. App. at 65, 772 S.E.2d at 248 (vacating and remanding permanency
planning and review order where trial court failed to verify whether individual
awarded guardianship had adequate resources to care for juvenile).
Furthermore, in addition to the lack of sufficient evidence regarding the
Worleys’ resources, the trial court also heard no evidence from which it could verify
that the Worleys understood the legal significance of assuming custody of Jacob and
Opal. “Evidence sufficient to support a factual finding that a potential guardian
understands the legal significance of guardianship can include, inter alia, testimony
from the potential guardian of a desire to take guardianship of the child, the signing
of a guardianship agreement acknowledging an understanding of the legal
relationship, and testimony from a social worker that the potential guardian was
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willing to assume legal guardianship.” E.M., __ N.C. App. at __, 790 S.E.2d at 872.
Neither of the Worleys testified at the 10 August 2017 hearing, and no testimony was
offered by DHS that the Worleys were aware of the legal significance of assuming
custody of the juveniles. Nor did the Worleys sign a guardianship agreement
acknowledging their understanding of the legal relationship.
Thus, for these reasons as well, we must vacate the trial court’s award of
custody of Jacob and Opal to the Worleys and remand for further proceedings. See
id. at __, 790 S.E.2d at 872 (vacating award of custody where no evidence was
presented supporting court’s finding that custodians understood legal significance of
placement).
IV. Findings Regarding Visitation
Finally, Respondent contends that the trial court failed to make necessary
findings concerning Respondent’s visitation rights in the permanency planning
review order. DHS and the GAL once again concede error on this issue, and we agree
that the court’s findings did not fully comply with the applicable statutory
requirements.
N.C. Gen. Stat. § 7B-905.1(c) provides, in pertinent part, as follows:
If the juvenile is placed or continued in the custody or
guardianship of a relative or other suitable person, any
order providing for visitation shall specify the minimum
frequency and length of the visits and whether the visits
shall be supervised. . . .
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N.C. Gen. Stat. § 7B-905.1(c) (2017).
In the present case, after concluding that visitation with Respondent was in
Opal and Jacob’s best interests, the trial court ordered that
[v]isitation between [Opal] and [Jacob] with [Respondent]
be coordinated between [Respondent] and [the maternal
aunt]. If [Respondent] were to return to live in Arizona,
that visitation between [Respondent, Opal, and Jacob]
occur weekly for a minimum of 2 hours.
This portion of the court’s order is deficient in several respects. First, it fails
to provide any direction as to the frequency or length of Respondent’s visits in the
event that she does not return to live in Arizona. Second, it fails to specify whether
the visits with Respondent should be supervised or unsupervised. On remand, we
instruct the trial court to make new findings on this issue that comply with N.C. Gen.
Stat. § 7B-905.1(c). See In re J.P., 230 N.C. App. 523, 530, 750 S.E.2d 543, 548 (2013)
(remanding for new findings where trial court failed to specify conditions of visitation
as required by statute).
Conclusion
For the reasons stated above, we vacate the trial court’s 25 August 2017 order
and remand for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
Judges DILLON and BERGER concur.
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