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In re D.S.

Court of Appeals of North Carolina

July 3, 2018

IN THE MATTER OF: D.S.

          Heard in the Court of Appeals 21 June 2018.

          Appeal by respondent-father from order entered 2 November 2017 by Judge Louis A. Trosch in Mecklenburg County No. 15 JA 612 District Court.

          Associate County Attorney Marc S. Gentile for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services Division.

          David A. Perez for respondent-appellant father.

          Stephen M. Schoeberle for guardian ad litem.

          TYSON, JUDGE.

         Respondent-father appeals from an order appointing M.G. ("Ms. Green"), an unrelated individual, as guardian for his minor child, D.S. ("Diana"). The trial court granted guardianship of Diana to a non-relative without explaining why it declined to give placement preference to Diana's paternal grandmother. The court's order is vacated and remanded for a new permanency planning hearing.

         I. Background

         This case is before the Court for the second time. In re D.S., ___ N.C.App. ___, 803 S.E.2d 873, 2017 WL 41269647 (2017) (unpublished). The Mecklenburg County Department of Social Services, Youth and Family Services Division ("YFS"), instituted the underlying juvenile case on 9 November 2015, when it obtained non-secure custody of Diana and filed a petition alleging she was a neglected and dependent juvenile. The trial court subsequently adjudicated Diana to be a neglected and dependent juvenile, continued custody of Diana with YFS, and set the primary permanent plan for Diana as reunification with a parent and the secondary permanent plan as guardianship.

         In its 20 December 2016 permanency planning and guardianship order, the trial court set the sole permanent plan for Diana as guardianship and appointed Ms. Green as her guardian. Respondent appealed, and this Court concluded the trial court's finding that Ms. Green has adequate resources to care appropriately for Diana was not supported by evidence at the permanency planning hearing. Id. This Court vacated the trial court's order and remanded the case for further proceedings. Id.

         The trial court conducted a hearing after remand on 16 October 2017. The court limited the hearing to the issue of whether Ms. Green had the financial resources to appropriately care for Diana. On 2 November 2017, the court entered its order from the hearing on remand, which it titled "Supplementary Order." The trial court incorporated, in its entirety, the 20 December 2016 permanency planning and guardianship order into the Supplementary Order. The court also made numerous findings of fact regarding Ms. Green's financial ability to care for Diana, and made ultimate findings of fact that Ms. Green was financially able to appropriately care for Diana and understood the legal significance of being appointed as her guardian. The court ordered that the permanent plan for Diana would be guardianship, appointed Ms. Green to be Diana's guardian, re-adopted a detailed visitation schedule for Diana's parents and her paternal grandmother, and relieved the parents' attorneys of further responsibility in this matter. Respondent filed timely notice of appeal from the trial court's order.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a) (2017).

         III. ...


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