in the Court of Appeals 31 May 2018.
by respondent from order entered 25 August 2017 by Judge
Christy E. Wilhelm in Cabarrus County Nos. 16 JA 91-92
Hartsell & Williams, PA, by H. Jay White and Austin
"Dutch" Entwistle III, for petitioner-appellee
Cabarrus County Department of Human Services.
Thomas Diepenbrock for respondent-appellant.
Spruill LLP, by Caroline P. Mackie, for guardian ad litem.
("Respondent") appeals from an order that awarded
custody of her minor children J.D.M.-J.
("Jacob") and O.M.L.J. ("Opal") to their
aunt and uncle in Arizona, terminated the juvenile
proceeding, and transferred the matter for entry of a civil
custody order under Chapter 50 of the North Carolina General
Statutes. On appeal, she argues that the trial court failed
to (1) comply with the statutory procedure for terminating
the proceeding in juvenile court; (2) ensure compliance with
the Interstate Compact on the Placement of Children (the
"ICPC"); (3) verify that the custodians possessed
adequate resources and understood the legal significance of
the placement of the children in their custody; and (4)
comply with statutory requirements in establishing
Respondent's visitation rights. After a thorough review
of the record and applicable law, we vacate the trial
court's order and remand for further proceedings.
and Procedural Background
is the mother of Opal and Jacob. Opal was born in December
2006 and Jacob in September 2008. In December 2014, the
Cabarrus County Department of Human Services
("DHS") received a report that Respondent had not
been properly monitoring Jacob's blood sugar levels in
connection with his juvenile diabetes and that the house was
not clean or safe for the children.
December 2015 and January 2016, DHS received numerous reports
alleging that (1) there was fighting in the home between
Respondent and her oldest child
("April"); (2) Respondent was not properly caring
for Jacob's diabetes; (3) Opal was not receiving her ADHD
medication as prescribed; (4) Jacob was missing school; and
(5) Opal and Jacob were attending school with inadequate
clothes and inattention to personal hygiene.
began providing in-home services to the family in response to
these reports. In April and May 2016, DHS received new
reports stating that Respondent was providing inadequate care
for both children's medical needs, Opal had been
disruptive at school, and Opal was being physically abused by
April at home.
June 2016, Respondent was hospitalized, and Opal and Jacob
were staying with a family friend. The friend reported that
she was not comfortable caring for the children while
Respondent was in the hospital. On 22 June 2016, DHS filed
juvenile petitions alleging that Opal and Jacob were
neglected juveniles. The children were placed in nonsecure
custody with DHS the same day. On 11 August 2016, Respondent
consented to an order that adjudicated the children to be
neglected, established a primary permanent plan of
reunification with a secondary permanent plan of
guardianship, and required her to comply with a case plan.
permanency planning hearing was held on 10 August 2017 before
the Honorable Christy E. Wilhelm in Cabarrus County District
Court. Respondent testified at the hearing along with Lisa
Fullerton and Rachel Willert, two social workers employed by
August 2017, the trial court entered a permanency planning
order awarding custody of Opal and Jacob to Beverly and
Johnnie Worley (the children's maternal aunt and uncle),
who lived in Phoenix, Arizona. The court terminated
jurisdiction in the juvenile action and ordered that the
matter be transferred to a Chapter 50 civil custody action.
Respondent filed a timely notice of appeal.
appeal, Respondent argues that the trial court erred by
failing to (1) make necessary findings required under N.C.
Gen. Stat. § 7B-911 before terminating jurisdiction in
the juvenile action; (2) ensure compliance with the ICPC; (3)
verify that the Worleys had adequate resources to serve as
custodians and that they understood the legal significance of
the placement of the children in their custody; and (4) make
statutorily required findings regarding Respondent's
visitation rights. We address each argument in turn.
Findings Required by N.C. Gen. Stat. § 7B-911
initially contends - and both DHS and the guardian ad
litem ("GAL") concede - that the trial court
failed to make required findings in connection with the
portion of its order terminating the juvenile proceeding and
initiating a civil action under Chapter 50. N.C. Gen. Stat.
§ 7B-911(c) provides, in relevant part, as follows:
(a) Upon placing custody with a parent or other appropriate
person, the court shall determine whether or not jurisdiction
in the juvenile proceeding should be terminated and custody
of the juvenile awarded to a parent or other appropriate
person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and
(b) When the court enters a custody order under this section,
the court shall either cause the order to be filed in an
existing civil action relating to the custody of the juvenile
or, if there is no other civil action, instruct the clerk to
treat the order as the initiation of a civil action for
. . . .
If the court's order initiates a civil action, the court
shall designate the parties to the action and determine the
most appropriate caption for the case. . . . The order shall
constitute a custody determination, and any motion to enforce
or modify the custody order shall be filed in the newly
created civil action in accordance with the provisions of
Chapter 50 of the General Statutes. . . .
(c) When entering an order under this section, the court
shall . . . .
. . . .
(2) Make the following findings:
a. There is not a need for continued State intervention on
behalf of the juvenile through a juvenile court proceeding.
b. At least six months have passed since the court made a
determination that the juvenile's placement with the
person to whom the court is awarding custody is the permanent
plan for the juvenile, though this finding is not required if
the court is awarding custody to a parent or to a person with
whom the child was living when the juvenile petition was
N.C. Gen. Stat. § 7B-911 (2017) (emphasis added).
it is undisputed that the trial court made no findings
satisfying either subsection (2)(a) or (2)(b). Nor do the
findings it did make allow this Court to infer that these
statutory provisions were met. See In re A.S., 182
N.C.App. 139, 144, 641 S.E.2d 400, 403-04 (2007) (upholding
order that failed to contain explicit findings under N.C.
Gen. Stat. § 7B-911(c)(2) but made findings
demonstrating that trial court no longer considered DSS
the trial court's order is internally inconsistent. On
the one hand, it requires continued involvement with the
juveniles by DHS by stating the following:
6. CCDHS should continue to make reasonable efforts to
prevent or eliminate the need for placement of the juveniles.
. . . .
9. The juveniles's [sic] placement and care are the
responsibility of CCDHS and the agency shall arrange for the
foster care or other placement of the juvenile. CCDHS is
granted the authority or [sic] to obtain medical treatment,
educational, psychological, or ...