Opinion
No. COA16-183
08-02-2016
IN THE MATTER OF: A.R.
Perry, Bundy, Plyler & Long, LLP, by Natalie J. Broadway and Dale Ann Plyler, for petitioner-appellee Union County Division of Social Services. Everett Gaskins Hancock LLP, by James M. Hash and Fiona K. Steer, for guardian ad litem. Mary McCullers Reece for respondent-appellant mother.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Union County, No. 15 JA 119 Appeal by respondent mother from order entered 23 November 2015 by Judge Joseph Williams in Union County District Court. Heard in the Court of Appeals 5 July 2016. Perry, Bundy, Plyler & Long, LLP, by Natalie J. Broadway and Dale Ann Plyler, for petitioner-appellee Union County Division of Social Services. Everett Gaskins Hancock LLP, by James M. Hash and Fiona K. Steer, for guardian ad litem. Mary McCullers Reece for respondent-appellant mother. McCULLOUGH, Judge.
Respondent-mother appeals from an order of the trial court which, inter alia, appointed a guardian for her daughter A.R. ("Adele"), born in January 2014. We vacate the order and remand for further proceedings.
The parties have adopted this pseudonym to protect the juvenile's privacy.
On 13 April 2015, Union County Division of Social Services ("DSS") received a child protective services ("CPS") report to the effect that Adele was running a fever and in need of medical attention, but respondent-mother's whereabouts were unknown. A CPS investigation revealed that respondent-mother had a substantial substance abuse history, including chronic methamphetamine use, and lacked stable housing or a source of income. Respondent-mother had also been removed from the Cascade treatment program due to her ongoing drug use. On 25 April 2015, respondent-mother agreed to place Adele in the care of non-relative kin, Ms. G. Respondent-mother entered into an in-home services agreement with DSS on 12 May 2015, committing to (1) attend a drug detox program for five to seven days, after which she would attempt to re-enroll in the Cascade treatment program; (2) find and maintain employment; (3) obtain a substance abuse assessment and follow any recommendations; and (4) submit to random drug screens. Respondent-mother entered a detox program on 15 May 2015 but withdrew four days later. Drug screens administered to respondent-mother on 21 May and 29 June 2015 detected "high levels" of controlled substances including methamphetamine and amphetamine. On 17 June 2015, respondent-mother was arrested and charged with felony breaking or entering and larceny.
On 10 July 2015, DSS filed a juvenile petition claiming that Adele was neglected and dependent. In addition to describing respondent-mother's problems with substance abuse, the petition alleged that she was unemployed, lacked stable housing, and was unable to provide proper care and supervision for her child. DSS alleged that Adele's father's whereabouts were unknown and that the department was unable to contact him at his last known location in South Carolina.
The trial court adjudicated Adele a neglected and dependent juvenile by order entered 2 September 2015. The court ordered that Adele "shall remain in non-relative placement with [Ms. G.]" It ordered respondent-mother to comply with her DSS services agreement, as follows:
i. Attend detox for 5-7 days in an attempt to return to the Cascade Program.The court granted respondent-mother one hour of weekly visitation with Adele, supervised by Ms. G.
ii. Seek and maintain employment.
iii. Complete a substance abuse assessment and follow all recommendations.
iv. Submit to random drug screens when requested.
The trial court held a review hearing on 28 October 2015. DSS advised the court that it had transported respondent-mother to the inpatient alcohol- and drug-abuse treatment facility in Black Mountain, North Carolina ("ADAC"), following her two positive drug screens for methamphetamine and amphetamines on 11 and 25 August 2015. After completing the 28-day ADAC program, respondent-mother enrolled at First Step Farm, a long term treatment facility in Candler, North Carolina. Respondent-mother committed to remain at First Step Farm for three months but left the facility, against the advice of staff, after less than one month on 19 October 2015. The social worker left a message for respondent-mother on 19 October 2015 but did not receive a response. Adele's guardian ad litem ("GAL") likewise advised the court that respondent-mother had failed to respond to an e-mail sent on 24 August 2015.
Respondent-mother testified that on Monday, 26 October 2015, two days before the review hearing, she entered Ilford Oxford House in Charlotte, North Carolina, "a sober-living house" and "stepdown" program. She averred that the facility required her to attend five meetings of Narcotics Anonymous per week. Although Oxford House did not provide her with substance abuse treatment, respondent-mother told the court that she "plan[ned] to go to Anuvia or to the McLeod Center and see about doing intensive outpatient" treatment. She further affirmed that she had not used drugs since 25 August 2015, was "committed to staying sober[,]" and believed she would be prepared to resume caring for Adele within "the next few months[.]" Asked on cross-examination whether she had "not followed through with treatment" and the requirements of her services agreement, respondent-mother replied, "Yeah, you're absolutely right."
The court entered its "Review Hearing Order (N.C.G.S. 7B-906.1)" on 23 November 2015. Citing respondent-mother's premature departure from First Step Farm, the court found that respondent-mother "has acted inconsistently with her protected status as parent." The court further found that "[i]t is contrary to [Adele's] welfare to be returned to [respondent-mother] at this time, because she has not made satisfactory progress toward reunification with the juvenile[.]" It "determined that the appointment of a relative or other suitable person as guardian of the person for [Adele] is the permanent plan for the juvenile" and appointed Ms. G. as Adele's guardian of the person pursuant to N.C. Gen. Stat. § 7B-600 (2015). The court awarded respondent-mother "supervised visitation one time per week or as otherwise agreed" and scheduled the next "[r]eview hearing, pursuant to 7B-906.1" for 6 April 2016.
On appeal, respondent-mother claims the trial court "violated N.C. Gen. Stat. § 7B-906.2 [(2015)] by entering a permanency planning order that eliminated reunification as a permanent plan" for Adele without making the findings of fact required by N.C. Gen. Stat. § 7B-906.2(b) (2015). DSS responds that the provisions of subsection 7B-906.2(b) do not apply, because N.C. Gen. Stat. § 7B-906.2 governs permanency planning hearings, not the initial review hearing held on 28 October 2015. See N.C. Gen. Stat. § 7B-906.1(a) (2015); In re H.W., 163 N.C. App. 438, 443-45, 594 S.E.2d 211, 214-15 (2004) (applying precursor statutes N.C. Gen. Stat. §§ 7B-906 and -907).
We note that the 28 October 2015 review hearing occurred after the 1 October 2015 effective date of N.C. Session Laws 2015-136 (July 2, 2015), which enacted N.C. Gen. Stat. § 7B-906.2 and made other amendments to Subchapter I of the Juvenile Code.
We begin by addressing the parties' dispute about the nature of the 28 October 2015 hearing and the resulting order entered by the trial court on 23 November 2015. The Juvenile Code mandates the following schedule for review hearings and permanency planning hearings to be held after a juvenile is adjudicated abused, neglected, or dependent:
In any case where custody is removed from a parent . . ., the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter. Within 12 months of the date of the initial order removing custody, there shall be a review hearing designated as a permanency planning hearing. Review hearings after the initial permanency planning hearing shall be designated as subsequent permanency planning hearings. The subsequent permanency planning hearings shall be held at least every six months thereafter or earlier as set by the court to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.N.C. Gen. Stat. § 7B-906.1(a). Because respondent-mother originally placed Adele in Ms. G.'s care voluntarily, the trial court did not "remove" the child from respondent-mother's custody until it ordered Adele to remain in her placement with Ms. G. in its 2 September 2015 dispositional order. Therefore, under N.C. Gen. Stat. § 7B-906.1(a), the court need only hold a permanency planning hearing on or before 1 September 2016.
In its dispositional order entered on 2 September 2015, the trial court purported to schedule a "[r]eview hearing" for 28 October 2015. Nothing in the record indicates the 28 October 2015 hearing was noticed as a permanency planning hearing under N.C. Gen. Stat. § 7B-906.1(b) (2015) or intended as such. At no time did the trial court or any party refer to the proceeding as a permanency planning hearing. The court styled its 23 November 2015 order a "Review Hearing Order (N.C.G.S. 7B-906.1)" rather than a permanency planning order. Finally, the court did not "adopt concurrent permanent plans" for Adele as required at a permanency planning hearing under N.C. Gen. Stat. § 7B-906.2(b). Accordingly, we agree with DSS that the 28 October 2015 hearing was intended as an initial 90-day review hearing, not a permanency planning hearing, and that the trial court was not obliged to comply with the requirements of the permanency planning statute, N.C. Gen. Stat. § 7B-906.2. See In re H.W., 163 N.C. App. at 445, 594 S.E.2d at 215.
We reject DSS's position that the court need not hold a permanency planning hearing in this cause inasmuch as "permanency planning hearings are only conducted when and if [DSS] has custody of the juvenile." Such hearings are required "[i]n any case where custody is removed from a parent, guardian, or custodian" pursuant to an adjudication of abuse, neglect, or dependency. N.C. Gen. Stat. § 7B-906.1(a). Although Adele was originally placed with Ms. G. voluntarily, the trial court mandated the placement in its order entered 2 September 2015. Physical custody was thus "removed" from respondent-mother as of 2 September 2015.
It is true that the "Review Hearing Order (N.C.G.S. 7B-906.1)" includes a finding "that the appointment of a relative or other suitable person as guardian of the person for [Adele] is the permanent plan for the juvenile[,]" and that the court appointed Ms. G. as guardian of the person for Adele pursuant to N.C. Gen. Stat. § 7B-600(b) (2015). However, the appointment of a guardian for Adele at this stage of the proceedings does not foreclose respondent-mother's reunification with Adele if warranted by subsequent events. Cf. In re J.V., 198 N.C. App. 108, 119, 679 S.E.2d 843, 849 (2009) (concluding that the court's change of the permanent plan to guardianship and appointment of a guardian did not indicate the court's belief that the juvenile could not be returned to the parent's home within the next six months, inasmuch as "N.C. Gen. Stat. § 7B-600 allows the termination of a guardianship established in a permanency planning order and the reintegration of the juvenile 'into a parent's home' in the event that 'the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest' "); but cf. In re N.B., ___ N.C. App. ___, ___, 771 S.E.2d 562, 568 (2015) (concluding that a permanency planning order "effectively ceases reunification efforts by (1) eliminating reunification as a goal of [the] permanent plan, (2) establishing a permanent plan of guardianship . . ., and (3) transferring custody of the children from [DSS] to their legal guardians"). Nor does the appointment of a guardian foreclose the court's obligation to establish primary and secondary permanent plans for Adele at the first permanency planning hearing. See N.C. Gen. Stat. § 7B-906.2(b). Given the trial court's obligation to hold a permanency planning hearing on or before 1 September 2016, see N.C. Gen. Stat. § 7B-906.1(a), we decline to infer that the court implicitly ceased reunification efforts at the 90-day review hearing. Respondent-mother's argument to the contrary is overruled.
Respondent-mother also contends the trial court erred in appointing a guardian of the person for Adele without considering "[w]hether it is possible for the juvenile to be placed with a parent within the next six months and, if not, why such placement is not in the juvenile's best interests" under N.C. Gen. Stat. § 7B-906.1(e) (2015). By its express terms, however, subsection (e) applies only at a "permanency planning hearing where the juvenile is not placed with a parent[.]" Id. Having determined that the 28 October 2015 hearing was not a permanency planning hearing, we further conclude that the court was not required to enter findings under N.C. Gen. Stat. § 7B-906.1(e). See In re H.W., 163 N.C. App. at 443-45, 594 S.E.2d at 214-15.
Respondent-mother next claims the trial court erred in appointing Ms. G. as Adele's guardian without hearing any evidence, other than Ms. G.'s "unsupported self-evaluation," that she "understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile" as required by N.C. Gen. Stat. §§ 7B-600(c) and 7B-906.1(j) (2015). We have held that, in order to support a trial court's verification of would-be guardians under these provisions, "the record must contain competent evidence of the guardians' financial resources and their awareness of their legal obligations." In re J.H., ___ N.C. App. ___, ___, 780 S.E.2d 228, 240 (2015).
The "Review Order" includes an explicit verification by the trial court that Ms. G. "understands the legal significance of the [guardianship] appointment and will have adequate resources to care appropriately for [Adele]." DSS elicited the following testimony from Ms. G.:
Q. Okay. All right. And DSS is asking that you be granted guardianship of this child?Although these responses suggest that Ms. G. did not come to the hearing fully aware of the responsibilities of guardianship, we believe the additional information conveyed through counsel's inquiry supports its finding that she understands the legal significance of the appointment. See In re P.A., ___ N.C. App. ___, ___, 772 S.E.2d 240, 245-46 (2015).
A. Okay.
Q. All right. And are -- do you understand that guardianship would mean that you would make all of the decisions in regards to the child as if you're the natural parent, but it does not terminate the parental rights?
A. Okay.
Q. Do you understand that?
A. I'm learning; yes, ma'am.
Q. Okay. And has anyone discussed with you that process of guardianship?
A. Within reason. We haven't actually sat down and fully discussed it.
Q. Okay.
A. But I do get the concept; yes, ma'am.
Regarding the adequacy of her resources, Ms. G. testified as follows:
Q. And are you employed?The written report submitted by Adele's GAL also states that the child's "physical, medical, emotional and developmental needs are being addressed" in her placement with Ms. G. DSS's written report makes no reference to Ms. G.'s resources but recommends that she be appointed as guardian for Adele.
A. Yes, ma'am.
Q. And are you able to maintain your household financially without any assistance other than --
A. Right; yes, ma'am.
Q. --your income or other income of the home?
We hold that the evidence received by the trial court is insufficient to support its verification of Ms. G.'s resources under N.C. Gen. Stat. §§ 7B-600(c) and 7B-906.1(j). As we explained in In re P.A.:
Ms. Smith's unsworn affirmative answer to the trial court's inquiry as to whether she had "the financial and emotional ability to support this child and provide for its needs" alone is not sufficient evidence, as this is Ms. Smith's own opinion of her abilities. . . . The trial court has the responsibility to make an independent determination, based upon facts in the particular case, that the resources available to the potential guardian are in fact "adequate[.]" See N.C. Gen. Stat. §§ 7B-600(c), -906.1(j). In this case, there is no evidence at all of what Ms. Smith considered to be "adequate resources" or what her resources were, other than the fact that she had been providing a residence for [the juvenile].___ N.C. App. at ___, 772 S.E.2d at 248 (emphasis added). That Ms. G. testified under oath does not change our analysis. Her mere confirmation that she is "employed" and "able to maintain [her] household financially" does not, without more, support the type of independent verification contemplated by In re P.A. Likewise, the fact that Ms. G. had been successfully caring for Adele for six months at the time of the review hearing is insufficient to support the court's finding. See In re J.H., ___ N.C. App. at ___, 780 S.E.2d at 240 (holding ten-month "successful kinship placement" with grandparents insufficient to demonstrate adequacy of grandparents' resources). Accordingly, we must "vacate the trial court's determination that legal guardianship should be granted to Ms. [G.] and remand for further proceedings." In re P.A., ___ N.C. App. at ___, 772 S.E.2d at 248.
Finally, respondent-mother challenges the sufficiency of the trial court's visitation award. The applicable statute requires the court to "specify the minimum frequency and length of the visits and whether the visits shall be supervised." N.C. Gen. Stat. § 7B-905.1(c) (2015) (emphasis added). As respondent-mother notes, however, the "Review Hearing Order (N.C.G.S. 7B-906.1)" provides only that she "shall have supervised visitation one time per week or as otherwise agreed." The order thus "fails to establish the duration of respondent-mother's [weekly] visitation." In re J.H., ___ N.C. App. at ___, 780 S.E.2d at 243. If the court continues Adele in a placement outside the home on remand, it shall enter an appropriate visitation order in accordance with subsection 7B-905.1(c). Id.
VACATED AND REMANDED.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).