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In re N.H.

Court of Appeals of North Carolina

September 19, 2017

IN THE MATTER OF: N.H.

          Heard in the Court of Appeals 24 August 2017.

          Appeal by respondent-mother from order entered 21 November 2016 by Judge Susan M. Dotson-Smith in Buncombe County District Court No. 16 JA 94.

          No brief filed for petitioner-appellee Buncombe County Department of Social Services.

          David A. Perez, for respondent-appellant mother.

          Amanda Armstrong, for guardian ad litem.

          CALABRIA, Judge.

         Respondent appeals from an order granting guardianship of her minor child, N.H. ("Nancy"), to her sister, K.P. ("Ms. Parker").[1] We hold that there was evidence before the trial court that Ms. Parker has adequate resources to care appropriately for Nancy, and therefore that the trial court did not err in awarding guardianship of Nancy to Ms. Parker.

         I. Factual and Procedural Background

         The Buncombe County Department of Social Services ("DSS") initiated the underlying juvenile case on 23 March 2016, when it filed a juvenile petition alleging Nancy was an abused and neglected juvenile based on allegations that she had been sexually abused by respondent's former roommates, concerns of possible drug use by respondent, and concerns of domestic violence in the home. DSS did not seek non-secure custody of Nancy, because she was in a safety resource placement. On 15 April 2016, Nancy was transferred to the care of Ms. Parker, and she has remained in Ms. Parker's care throughout the case.

         After a hearing on 6 July 2016, the trial court entered an order on 22 July 2016, adjudicating Nancy to be an abused and neglected juvenile. According to the order, Nancy remained in the legal custody of respondent and Nancy's father, but Nancy's safety resource placement continued with Ms. Parker. The court granted respondent weekly supervised visitation with Nancy and ordered that Nancy continue to be involved with outpatient mental health therapy. Additionally, the court ordered respondent to: (1) be involved in mental health treatment; (2) follow the therapist's recommendations; (3) follow up with the recommendations of her comprehensive clinical assessment; (4) participate in Nancy's therapy; (5) submit to random drug testing; and (6) complete a medication evaluation and follow all recommendations.

         On 6 September 2016, the trial court conducted the initial permanency planning and review hearing in this case. In its order from the hearing, entered 21 November 2016, the court set the primary permanent plan for Nancy as guardianship and set the secondary plan as reunification with her parents. The court awarded guardianship of Nancy to Ms. Parker, granted respondent weekly supervised visitation with Nancy, and directed DSS to continue to work toward Nancy's reunification with her parents. Respondent filed timely notice of appeal from the trial court's order awarding guardianship of Nancy to Ms. Parker.

         II. Verification of Guardian's Resources

         Respondent's sole argument on appeal is that the trial court erred in failing to properly verify that Ms. Parker's resources were adequate to provide Nancy appropriate care as her guardian. We disagree.

         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 [whether] 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) (citation and quotation marks omitted). Before a trial court may appoint a guardian of the person for a juvenile in a Chapter 7B case, the court must "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) (2015), see also N.C. Gen. Stat. § 7B-906.1(j) (2015) (requiring an identical verification when appointing a guardian of a person for a juvenile as part of the juvenile's permanent plan). "[T]he trial court need not make detailed findings of evidentiary facts or extensive findings regarding the guardian's situation and resources, . . . [but] some evidence of the guardian's 'resources' is necessary as a practical matter, since the trial court cannot make any determination of adequacy without evidence." In re P.A., 241 N.C.App. 53, 61-62, 772 S.E.2d 240, 246 (2015). "The court may consider any evidence, including hearsay evidence . . . that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-906.1(c).

         B. Analysis

         With regard to the adequacy of Ms. Parker's resources to care for Nancy as her guardian, the trial court found:

28. [Ms. Parker was] present at this hearing. Pursuant to N.C. G.S. § 7B-600(b), the Court questioned [Ms. Parker] and she understand[s] the legal significance of being appointed the minor child's guardian, and she has adequate resources to care appropriately for the minor child, and [is] able to provide proper care and supervision of the minor child in a safe home.

         However, on appeal, respondent contends that there was no evidence presented to the trial court to support such a finding. For example, respondent notes that Ms. Parker "testified as to her employment with Buncombe County Schools Transportation, but she did not testify as to her actual income, whether she was paid a salary or worked by the hour, whether she received any job benefits, nor any other specifics regarding her employment other than she had no other source of income." Respondent notes various financial assets which Ms. Parker may or may not have had, and the fact that no testimony was elicited with respect to such hypothetical resources.

         We acknowledge that our case law addresses this situation from numerous angles, none of them precisely on point. For example, in In re N.B., guardians testified about their willingness to take responsibility, there was a report stating the guardians were willing and able to provide care, and the social worker spoke "in depth" with the guardians about the requirements and responsibilities of being guardians. We held that this was adequate evidence pursuant to N.C. Gen. Stat. § 7B-906.1. In re N.B., 240 N.C.App. 353, 361-62, 771 S.E.2d 562, 568 (2015). By contrast, in In re P.A., where the only evidence was an unsworn statement by the guardian that the guardian had the ability to support the juvenile, we held that this was insufficient. P.A., 241 N.C.App. at 65, 772 S.E.2d at 248. Likewise, in In re J.H., where there was a report in evidence but the proposed guardians did not testify, we held that this was insufficient. In re J.H., __ N.C.App. __, __, 780 S.E.2d 228, 240 (2015).

         In the instant case, there are two GAL reports and one DSS report in the record, and Ms. Parker was present in court and offered testimony. The first GAL report, dated 30 June 2016, notes that Ms. Parker "is employed with the school district[, ]" but makes no other observations about Ms. Parker's resources. The second GAL report, dated 1 September 2016, notes that Ms. Parker "is employed as a school bus driver for the school district, " and that Ms. Parker "is a single mom with no income when she is not driving a school bus during the summer[, ]" but otherwise makes no other observations about Ms. Parker's resources. The DSS report, also dated 1 September 2016, notes that respondent has given Ms. Parker a total of $30 when Ms. Parker experienced "significant financial difficulties[, ]" that DSS has provided Ms. Parker with "gift cards of $30 per month to assist with purchasing food and gas[, ]" and that Ms. Parker "has experienced financial difficulties in this process[, ]" but makes no specific findings as to Ms. Parker's resources aside from these.

         At trial, Ms. Parker was questioned about her resources. Although she was not specifically questioned about her salary or benefits, her examination was still thorough:

Q. Okay. And so you're willing to be legally responsible for meeting all [Nancy]'s needs until she's 18 years old, is that correct?
A. Yes.
Q. And you understand that that means you would [be] responsible for meeting her medical needs, her dental needs, her psychological needs, her educational needs, and any other needs until she's 18, correct?
A. Yes.
Q. And you're comfortable with that?
A. Yes.
. . .
Q. Do you work outside the home?
A. Yes.
Q. Where do you ...

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