Heard in the Court of Appeals 6 April 2015.
Buncombe County Department of Social Services, by Hanna Honeycutt, for petitioner-appellee.
Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant.
Michael N. Tousey, for guardian ad litem.
STROUD, Judge. Judges HUNTER, JR and DILLON concur.
Appeal by respondent from orders entered 6 July 2014 by Judge Susan Dotson-Smith in District Court, Buncombe County,
No. 11 JA 250.
Respondent-mother appeals from a permanency planning review order and guardianship order in which the trial court awarded guardianship of her minor child P.A. (" Parker" ) to Ms. H.-M. (" Ms. Smith" ), ceased reunification efforts by the Buncombe County Department of Social Services (" DSS" ), and waived further review hearings in this juvenile case. Respondent contends that the trial court (1) violated her right to fundamentally fair procedures; (2) failed to verify that Ms. Smith had adequate resources to care appropriately for Parker; and (3) failed to make requisite findings of fact before waiving further review hearings. We vacate the trial court's orders and remand this matter for further proceedings.
On 15 September 2011, DSS filed a petition alleging Parker was a neglected juvenile in that he did not receive proper care, supervision, or discipline from respondent and lived in an environment injurious to his welfare. DSS assumed non-secure custody of Parker that same day, and on 20 September 2011, DSS placed Parker with his biological father (" Father" ), who lived with his girlfriend, Ms. Smith. On 25 September 2012, the trial court entered an adjudication and dispositional order on the juvenile petition. The trial court concluded that Parker was a neglected juvenile and that the conditions that led to the removal of Parker from respondent's care had not been fully resolved, and thus DSS should remain involved in the case. In summary, the adjudication of neglect was based upon respondent's pattern of residential instability and involvement in domestic violence with Father. Nevertheless, the trial court concluded that Father was a fit and proper person to care for Parker and granted him custody of Parker.
After a review hearing, the trial court entered an order on 2 April 2013 in which it concluded that sole custody of Parker should remain with Father and waived further review hearings in the juvenile case. But six days later, respondent filed a request for emergency custody alleging that Father had been arrested for three counts of taking indecent liberties with A.H. (" Annie" ), the minor child of Father's girlfriend, Ms. Smith. Ms. Smith had reported the incident to the police and had removed Annie from the home that she had shared with Father.
On 8 April 2013, DSS filed a new juvenile petition alleging that Parker was an abused and neglected juvenile based upon Father's alleged sexual abuse of Annie and his resulting incarceration. DSS again assumed non-secure custody of Parker and placed him with Ms. Smith. After conducting a hearing on the second juvenile petition, the trial court entered adjudication and dispositional orders on 3 September 2013. The trial court concluded that Parker was an abused and neglected child and that Father was a " responsible individual, as he has abused and seriously neglected the minor child."  The trial court continued custody of Parker with DSS, continued to sanction placement of Parker with Ms. Smith, established several requirements for respondent to meet before regaining custody of Parker, and awarded respondent visitation with Parker several days each week.
On or about 22 October 2013, the trial court sanctioned a trial home placement in respondent's home. At first, this placement went well. But on 20 December 2013, respondent married a man with a long criminal history (" Mr. King" ), whom she had just met in October 2013. Mr. King's convictions include assault with a deadly weapon, assault on a female, and drug-related offenses. Respondent did not notify DSS about her marriage to Mr. King. On 4 January 2014, after a domestic disturbance, respondent asked Mr. King to leave their home. Because of this incident, a criminal warrant was issued for respondent's arrest for an alleged domestic assault on Mr. King that she had committed in Parker's presence. On or about 21 January 2014, after learning of the outstanding warrant, DSS terminated the trial placement and returned Parker to Ms. Smith's care.
On 20 and 21 March 2014, the trial court held a permanency planning and review hearing. On 6 June 2014, the trial court entered an order in which it set the permanent plan for Parker as guardianship, granted guardianship of Parker to Ms. Smith, awarded respondent visitation with Parker, relieved DSS of making further efforts toward reunification of Parker with his parents, and waived further review hearings. The trial court also entered a separate guardianship order that granted guardianship of Parker to Ms. Smith. Respondent gave timely notice of appeal from the permanency planning review order and guardianship order.
II. Fundamentally Fair Procedures
Respondent contends that the hearing lacked fundamentally fair procedures, because (1) she was held to a higher standard of conduct than Ms. Smith; (2) there was no evidence that Ms. Smith had a job; (3) Ms. Smith was not forced to comply with a case plan; (4) DSS abruptly transitioned the juvenile from her home to Ms. Smith's home when it had previously gradually transitioned the juvenile from Ms. Smith's home to her home; and (5) DSS's attorney extensively cross-examined her about a previous juvenile
case involving one of her other children that had been dismissed. In short, respondent argues that the hearing was fundamentally unfair because the trial court subjected her, the child's biological mother, to closer scrutiny than it did Ms. Smith, an unrelated person. In addition, she notes, accurately, that Ms. Smith had made essentially the same bad choices regarding the men that she permitted to reside with her children and that Ms. Smith's child, Annie, had also been the subject of a DSS investigation, but that the trial court did not view these facts as disqualifying Ms. Smith as a guardian, while it did rely on similar facts in disqualifying respondent as a parent. In support of her argument, respondent relies on N.C. Gen. Stat. § 7B-100(1) and In re K.N., 181 N.C.App. 736, 737, 640 S.E.2d 813, 814 (2007).
N.C. Gen. Stat. § 7B-100(1) states that a purpose of abuse, neglect, and dependency proceedings is " [t]o provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents[.]" N.C. Gen. Stat. § 7B-100(1) (2013). In K.N., this Court held that the General Assembly achieved this aim " in part through statutory provisions that ensure a parent's right to counsel and right to adequate notice of such proceedings." 181 N.C.App. at 737, 640 S.E.2d at 814 (citing N.C. Gen. Stat. § § 7B-1101.1, -1106 (2005)). But K.N. is inapplicable here, as respondent has not asserted that the trial court violated her right to counsel or her right to adequate notice. See id., 640 S.E.2d at 814. Respondent's arguments are in substance directed at the trial court's weighing of the evidence and determination of the credibility of the witnesses. It is true that some of the evidence could be viewed as respondent suggests, but this court cannot reweigh the evidence or credibility as determined by the trial court. See In re S.C.R., 198 N.C.App. 525, 531-32, 679 S.E.2d 905, 909 (" It is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." (brackets omitted)), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
With respect to DSS's attorney's cross-examination of respondent, we first note that respondent did not object to this questioning. But respondent couches this argument as based upon her right to " fundamentally fair" procedures and not any particular evidentiary rule, relying on Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314, 1321 (1935). But Berger is inapposite. There, the prosecutor was
guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner.
Id. at 84, 79 L.Ed. at 1319. In contrast, here, DSS's attorney cross-examined respondent about a previous juvenile case in which the trial court had adjudicated one of respondent's other children neglected. Respondent emphasizes that this Court reversed that order and the trial court on remand dismissed the juvenile petition. See In re C.Q., 183 N.C.App. 489, 645 S.E.2d 229 (2007) (unpublished). Respondent is correct that the adjudication order upon which she was cross-examined was reversed by this Court and therefore no longer had any legal effect. See id., 645 S.E.2d 229. But after examining the entirety of the transcript and particularly respondent's testimony in context, we do not find that the questions on cross-examination were improper in any way. The questions related not to the legal conclusions of the prior adjudication but to facts as to prior events in the long history of DSS's involvement with respondent's children. We hold that the trial court did not violate respondent's right to fundamentally fair procedures. See K.N., 181 N.C.App. at 737, 640 S.E.2d at 814.
III. Guardian Verification
A. Standard of Review
" Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law." In re R.A.H., 182 N.C.App. 52, 57-58, 641 S.E.2d 404, 408 (2007). " Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court." State v. Jones,
__ N.C.App. __, __, 767 S.E.2d 341, 344 (2014).
Respondent contends that the trial court failed to verify that Ms. Smith had adequate resources to care appropriately for Parker, in contravention of N.C. Gen. Stat. § § 7B-600(c), -906.1(j) (2013). N.C. Gen. Stat. § 7B-600(c) provides: " If the court appoints an individual guardian of the person pursuant to this section, 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). N.C. Gen. Stat. § 7B-906.1(j) similarly provides:
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). The trial court " may consider any evidence . . . that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." Id. § 7B-906.1(c). The trial court also " shall consider information from the parents, the juvenile, the guardian, any person providing care for the juvenile, the custodian or agency with custody, the guardian ad litem, and any other person or agency that will aid in the court's review." Id.
In its order, the trial court specifically found that Ms. Smith " is aware of the legal significance of her appointment as legal guardian of the juvenile and will have adequate resources to care appropriately for the juvenile." The trial court's finding that Ms. Smith " is aware of the legal significance of her appointment as legal guardian" is supported by the evidence, as she was present in court and the trial court directly addressed Ms. Smith at the hearing:
THE COURT: . . . Do you understand that the Court may be asking you to become a permanent guardian today?
[Ms. Smith]: Yes, ma'am.
THE COURT: And you understand the nature and legal significance of having that label?
[Ms. Smith]: Yes, ma'am.
THE COURT: And are you prepared to support this minor child, not only as an infant, but as a rebellious teenager as they grow?
[Ms. Smith]: Yes.
THE COURT: Do you have the financial and emotional ability to support this child and ...