In re A.N.T., 061620 NCCA, COA19-690
| Judge | Judges BRYANT and YOUNG concur. |
| Court | North Carolina Court of Appeals |
| Docket Number | COA19-690 |
| Parties | IN THE MATTER OF: A.N.T. |
| Date | 16 June 2020 |
Heard in the Court of Appeals 26 May 2020.
Appeal by respondent from order entered 17 April 2019 by Judge Jeanie R. Houston in Wilkes County No. 17 JA 70 District Court.
Erika Leigh Hamby for petitioner-appellee Wilkes County Department of Social Services.
Parker Poe Adams & Bernstein LLP, by Tiffany M. Burba and Catherine G. Clodfelter, for guardian ad litem.
Forrest Firm, P.A., by Patrick S. Lineberry for respondent-appellant.
TYSON, JUDGE.
Respondent appeals from the trial court's order placing his daughter into a guardianship with a nonrelative. We vacate the order for nonrelative guardianship and remand.
I. Factual and Procedural Background
Respondent is a federal inmate currently serving a sentence for manufacturing methamphetamine. Respondent has been incarcerated since 2010. His wife was released from federal prison in late 2016 after serving her sentence for manufacturing methamphetamine. Their daughter, A.N.T. ("Alexis") was born in 2009 and has not lived with either parent since birth. See N.C. R. App. P. 42(b) (pseudonyms are used to protect the identity of the juveniles). Alexis was placed to live with her maternal grandparents.
DSS had previously been involved with these grandparents after receiving reports that drugs were being sold out of their home, and that Alexis' uncle was a pedophile and living in the home. On 8 June 2016, Wilkes County Department of Social Services ("DSS") filed a petition alleging abuse and neglect of Alexis by her maternal grandparents. By the time of the filing of the petition, Alexis had been moved into another family placement with her maternal great-grandparents.
On 26 July 2016, Alexis was adjudicated as neglected and dependent as defined in N.C. Gen. Stat. § 7B-101 (2019). Alexis remained in the care of her maternal great-grandparents. Overnight and weekend visits were allowed with her paternal aunt, Respondent's sister.
Alexis' mother entered into a case plan with DSS in November 2016 upon her release from prison. The mother visited with Alexis under supervision. The permanent plan for the child was reunification with her mother. On 8 May 2017, the court held a permanency planning hearing. By this date, Alexis' mother had become sporadic in her drug screens, and in maintaining housing and employment. The trial court ordered a primary permanent plan of reunification and a concurrent plan of custody with an approved caregiver.
Additional review hearings were held in August and October 2017. Reunification of Alexis with her mother remained the primary plan, with custody with an approved caregiver as the concurrent plan. At the 30 October 2017 hearing, the trial court specifically allowed Alexis to receive letters from Respondent through DSS.
DSS received reports of physical and sexual abuse and illegal drug use by another relative living in the maternal great-grandparents' home. The great-grandparents were not transporting Alexis to medical or therapy appointments. DSS concluded Alexis' maternal great-grandparents were no longer able to adequately care for her. In February 2018, Alexis was moved to a nonrelative placement with her second-grade teacher and her teacher's husband ("Mr. and Mrs. L."). Alexis' mother consented to this placement.
After a permanency planning hearing held 19 March 2018, the district court relieved DSS of further reunification efforts with Respondent, who remained incarcerated in a federal prison, and continued the primary permanent plan of reunification with the mother. Two relatives were identified as potential placements for Alexis: a second cousin and a paternal aunt.
Alexis indicated she did not wish to live with her paternal aunt. Concerns had arisen earlier that the paternal aunt's children had engaged in sexual conduct with Alexis. Alexis' mother was re-incarcerated and subsequently released in August 2018.
Respondent's mother ("Mrs. T.") was recognized as a potential placement for Alexis for the first time at the 29 October 2018 permanency planning hearing. An adult son with a criminal record was reported to be living in the paternal grandparent's home. The court heard testimony from a DSS social worker and from Respondent's mother.
The trial court found Alexis was happy in Mr. and Mrs. L.'s home, she wanted to stay with them, and Mr. and Mrs. L. were agreeable to facilitating and maintaining a relationship with Alexis and her family. The court found Alexis had stated she wanted to stay with Mr. and Mrs. L., and did not want to be placed back into her maternal grandmother's home.
The court also found Respondent's release date from custody was June 2020. Alexis had refused a letter from her father and stated she did not know him. As noted, the trial court had specifically allowed Alexis to receive letters from Respondent through DSS at the 30 October 2017 hearing. Respondent had offered to "sign [his] rights over" to his daughter for her placement with his sister in June 2016.
The court found Respondent's mother was interested in opening her home for Alexis to live with her and her husband. The court's order includes a conclusion that DSS shall "explore the homes of the child's paternal grandmother's and her current foster home as a permanent placement." The record does not contain any home study for Respondent's mother.
Alexis' primary permanent plan was modified to custody with an approved caregiver and the secondary plan to be guardianship. Respondent failed to appeal from this order.
At the permanency planning hearing on 18 February 2019, the court heard testimony from Mrs. T. about the condition of her home, her desire to have Alexis placed in her care, and that Respondent had indicated it was his desire as well. Mrs. T. testified and the district court noted that her other adult son was no longer living in her home. Following this hearing, the court entered a permanency planning order on 17 April 2019 granting guardianship of Alexis to Mr. and Mrs. L. Respondent timely appealed.
II. Jurisdiction
This Court possesses jurisdiction over Respondent's appeal from an order changing legal custody of a juvenile pursuant to N.C. Gen. Stat. § 7B-1001(a)(4) (2019).
III. Issues
Respondent argues the trial court erred in granting guardianship to nonrelatives and in forbidding him to have visitation with Alexis while he was incarcerated.
IV. Standard of Review
This Court's "review of a permanency planning order entered pursuant to N.C. Gen. Stat. § 7B-906.1 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 D.S., 260 N.C.App. 194, 196, 817 S.E.2d 901, 904 (2018) (internal quotation marks and citation omitted). "The trial court's conclusions of law are reviewable de novo on appeal." In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006) (internal quotation marks and citation omitted).
V. Analysis
A. Guardianship
Respondent challenges the trial court's grant of guardianship of Alexis to nonrelatives. Respondent asserts the statutes and precedents require the trial court to make specific findings of placement with his mother, Alexis' grandmother, before it could consider nonrelatives, Mr. and Mrs. L. We agree.
The district 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," in determining "out-of-home" care for a juvenile. N.C. Gen. Stat. § 7B-903(a1) (2019) (emphasis supplied). The statute further directs that "[i]f the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile." Id. (emphasis supplied).
N.C. Gen. Stat. § 7B-906.1(j) requires the court to "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) (2019). Consistent with N.C. Gen. Stat. § 7B-903, the court may consider the guardian to have "adequate resources" when the guardian has "provided a stable placement for the juvenile for at least six consecutive months." Id.
The guardian ad litem asserts N.C. Gen. Stat. § 7B-903 provides options and guidance to a court when a child must be removed from the home. See N.C. Gen. Stat. § 7B-903(a1). The guardian ad litem notes Alexis had been living outside of her parents' home since birth, was placed in two maternal relatives' homes, and was moved from both.
1. In re D.S.
"This Court has held that before placing a juvenile in an out-of-home placement at a permanency planning hearing, the trial court was required to first consider placing [the juvenile] with [her relatives] unless it found that such a placement was not in [the juvenile's] best interests." In re D.S., 260 N.C.App. at 197, 817 S.E.2d at 904 (internal quotation marks and citation omitted). We have further held "[f]ailure to make specific findings of fact...
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