In re K.B.

• Docket Number: COA22-597
• Decision Date: 01 August 2023
• Parties: IN THE MATTER OF: K.B., A.M.H., M.S.H.
• Court: North Carolina Court of Appeals

1

IN THE MATTER OF: K.B., A.M.H., M.S.H.

No. COA22-597

Court of Appeals of North Carolina

August 1, 2023

Heard in the Court of Appeals 23 May 2023.

Appeal by respondent mother from order entered 21 March 2022 by Judge S. Katherine Burnette in Vance County Nos. 19 JA 05, 06, 07 District Court.

Sheneshia B. Fitts for petitioner-appellee Vance County Department of Social Services.

Freedman Thompson Witt Ceberio &Byrd PLLC, by Christopher M. Watford, for respondent-appellant-mother.

Robinson, Bradshaw & Hinson, P.A., by Erica M. Hicks, for appellee guardian ad litem.

DILLON, Judge.

Mother appeals from an order granting guardianship of her three children, Amy, Matt, and Kelly,^[1] to the children's great aunt ("Great Aunt"), a North Carolina resident. On appeal, Mother challenges the trial court's decision to grant guardianship to Great Aunt (with whom the children have resided for several years),

2

instead of to Mother's mother ("Grandmother"), who resides in Georgia. The trial court restricted Mother, who also lived in Georgia, to electronic-only visitation.

I. Background

In February 2019, the Vance County Department of Social Services ("VCDSS") filed juvenile petitions alleging that Amy, Matt, and Kelly were neglected and dependent, that domestic violence between the children's parents in their presence, as well as Mother's homelessness, "untreated mental health issues including a lack of medication management[,]" and previous alternative placements not working out. Based on the petitions, the trial court granted VCDSS non-secure custody with placement authority. About a week later, VCDSS placed all three children with Great Aunt in a kinship placement.

In April 2020, after hearings on the matter, the trial court adjudicated the children as dependent and neglected. The court entered a dispositional order setting the primary plan as reunification and the secondary plan as "custody with a court approved caretaker." The court further ordered VCDSS to retain custody and placement authority. The children's placement continued to be with Great Aunt.

Over the next three years, the trial court continued to hold dispositional hearings and enter orders. During this time, the trial court ordered that Grandmother be considered for placement and that a home study assessment by Georgia officials be completed to evaluate her fitness. Throughout this time, the children remained in the kinship placement with Great Aunt.

3

In May 2021, the trial court entered an order ceasing reunification efforts and shifting the primary plan to guardianship with a secondary plan of adoption.

On 21 March 2022, following a series of hearings spanning five months and prior to the completion of Grandmother's home study, the trial court entered an order granting Great Aunt guardianship of the children. In its order, the trial court also granted Mother "voluntary visitation two times per week . . . via electronic devices." The trial court noted "[t]he matter is closed" and relieved VCDSS and the GAL of further responsibilities, but noted it was "retain[ing] jurisdiction of this matter." Mother timely appealed.

II. Argument

Mother makes four arguments on appeal, which we address in turn.

A. Evidence that Guardian Understood Legal Significance

In awarding Great Aunt guardianship, the trial court determined she understood the legal significance of taking on that role as required by N.C. Gen. Stat. § 7B-600. Mother argues there was no evidence to support this determination. We disagree.

Before awarding guardianship, the trial court must, in part, determine the proposed guardian understands the legal significance of the placement. See In re K.P., 383 N.C. 292, 306, 881 S.E.2d 250, 259 (2022). However, the trial court need not make specific findings to support this determination. Id. Rather, all that is required is that the record show the trial court received and considered adequate

4

evidence on this point. Id.

Here, there was evidence that the children had been living with Great Aunt for three years, she had provided care for them, she had scheduled and taken the children to medical and dental appointments, she had potty-trained the children, and she had attended meetings with their teachers. Additionally, Great Aunt testified that she wanted to continue providing care for them as their guardian and was willing do so without the assistance of VCDSS. The evidence shows that she understood her obligations to comply with court orders regarding the children. And during the last hearing, on cross-examination, she acknowledged that, as guardian, she would have more control over the children. Though Great Aunt was not expressly asked about her understanding of her legal obligations, we are satisfied that the evidence shows the trial court received adequate evidence on this point.

B. Failure to Wait for Completion of Home Study of Grandmother

Mother argues the trial court erred by granting Great Aunt guardianship of the children without the benefit of considering Grandmother as a placement option following completion of the home study. She argues that the trial court was required by N.C. Gen. Stat. § 7B-903(a1) to wait for the home study of Grandmother previously ordered by the court be completed before ruling Grandmother out as a placement option for the children. For the reasoning below, we conclude the trial court did not err or otherwise abuse its discretion in granting guardianship to Great Aunt, thus ruling out Grandmother, without the benefit of a home study on Grandmother.

5

Section 7B-903(a1) states that the trial court should consider the children's best interests when placing them in "out-of-home care," but that "[p]lacement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children ["ICPC"]." N.C. Gen. Stat. § 7B-903(a1) (2021). (emphasis added). We have held that, where the ICPC applies, "a child cannot be placed with an out-of-state relative until favorable completion of an ICPC home study." See In re V.A., 221 N.C.App. 637, 640, 727 S.E.2d 901, 904 (2012).

Assuming the ICPC applies in this case, see In re J.E., 182 N.C.App. 612, 643 S.E.2d 70 (2007) (holding that ICPC did not apply to an order granting guardianship to out-of-state grandparents), we conclude there is no obligation under the ICPC that a home study be completed to rule out an out-of-state relative as a placement option. The plain language of Section 7B-903(a1) states that the ICPC only applies where a child is actually placed with someone out-of-state, and only must be complied with with respect to the out-of-state person with whom the child is being placed. For instance, if the trial court was considering placement with ten different relatives in ten different states, the ICPC does not require the trial court to review a home study for all ten relatives but only for the out-of-state relative with whom the child is actually placed. That is, there is no requirement under the ICPC that the trial court consider home studies for the other nine relatives before ruling them out.

Mother argues, however, it was error for Judge Burnette, who entered the guardianship order we are reviewing, to grant Great Aunt guardianship without the

6

benefit of a home study on Grandmother where a different judge in a prior hearing had ordered the home study be completed. We conclude, however, that it was not an abuse of discretion for Judge Burnette to make a placement with an in-state person without the benefit of the previously ordered home study of an out-of-state person, so long as her findings and conclusions, otherwise, support her exercise of discretion in awarding guardianship.

And, here, we conclude the order does support Judge Burnette's discretionary decision to place the children with Great Aunt. For instance, the trial court found Great Aunt's home was the only home the children had ever known, her home is near other relatives, the children were generally doing well living with Great Aunt, and Grandmother already had three minor children in her home she was taking care of. Further, we note the trial court's findings that over many years, the children bonded with Great Aunt but not with Grandmother and that it would be in the children's best interest to remain in the only home they have ever known.

It may be that VCDSS inappropriately delayed in following through on its obligation to request a home study of Grandmother as was previously ordered, as the dissent in this case suggests. Notwithstanding, the matter was properly before Judge Burnette in the latest round of hearings, and she had the discretion both to enter her guardianship order without the benefit of the home study and to deal with VCDSS' behavior separately, as may be warranted.

In sum, it may be an abuse of discretion in some cases to rule out a placement

7

option, whether in-state or out-of-state, without the benefit of a home study assessment. It may be an abuse of discretion in some cases to place a child with an in-state person without a home study assessment of that person. In such cases, when the child is placed with an in-state person, the issue is whether the trial court abused its discretion in conducting its "best interests of the child" analysis without the benefit of a home study. However, pursuant to Section 7B-903, it is only when a trial court judge actually places a child with an out-of-state person that the trial court lacks discretion to make that placement without the benefit of a home study of that person, because such study is required under the ICPC. However, since Judge Burnette ordered that the children remain with their in-state Great Aunt, we need only consider whether it was an abuse of discretion for her to do so without the benefit of a home study of Grandmother. And, for the reasons above, most notably that the children have now...