In Re EC

621 S.E.2d 647, 174 N.C. App. 517, 2005 N.C. App. LEXIS 2494
CourtCourt of Appeals of North Carolina
DecidedNovember 15, 2005
DocketCOA05-218
StatusPublished

This text of 621 S.E.2d 647 (In Re EC) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re EC, 621 S.E.2d 647, 174 N.C. App. 517, 2005 N.C. App. LEXIS 2494 (N.C. Ct. App. 2005).

Opinion

621 S.E.2d 647 (2005)

In the Matter of E.C.

No. COA05-218.

Court of Appeals of North Carolina.

November 15, 2005.

Jamie L. Hamlett, Burlington, for petitioner-appellee Alamance County Department of Social Services.

Richard Croutharmel, Raleigh, for respondent-appellant.

*649 TYSON, Judge.

M.C. ("respondent") appeals from the trial court's order adjudicating her minor child, E.C. ("the child"), neglected and dependent and awarding legal guardianship of the child to Cecilia Pointer ("Ms. Pointer") with visitation in the discretion of Ms. Pointer. We affirm in part, vacate in part, and remand.

I. Background

Respondent gave birth to the child on 21 March 2003. The child was born with cocaine present within her system. The Orange County Department of Social Services ("DSS") determined respondent needed case management services and assigned a social worker to the case. Respondent entered "Sunrise," a substance abuse treatment program, on 11 August 2003. Respondent admitted she was unable to complete the Sunrise program because she "didn't want to follow directions" and engaged in confrontations with others in the program. Respondent had enrolled in two other substance abuse treatment programs prior to attending Sunrise. She completed a twenty-eight day program designed to prepare an individual to enter into a long-term program, but failed to complete the subsequent long-term program because she "chose not to."

In October 2003, respondent and the child moved in with Ms. Pointer, respondent's cousin, in Alamance County. Respondent signed an agreement granting Ms. Pointer temporary custody of the child. Respondent agreed not to go anywhere alone with the child. Ms. Pointer was granted temporary custody of the child until 18 December 2003.

*650 Difficulties arose between Ms. Pointer and respondent about a month after respondent and the child moved in with her. Respondent left the home for several days at a time leaving the child with Ms. Pointer. When respondent returned to the home, she would sleep for long periods of time with the child in the bed with her. Respondent would not awaken when the child cried. Respondent kept the room where she and the child stayed in a filthy condition.

On 7 December 2003, respondent came home appearing to be high or drunk. Ms. Pointer and respondent argued after Ms. Pointer asked respondent to clean up her room. Ms. Pointer was concerned about the child living in the filthy room. Respondent threatened to remove the child from Ms. Pointer's home. Respondent told Ms. Pointer she was going to a "crack house" with the child. Ms. Pointer testified she did not believe respondent would take the child to a "crack house." Ms. Pointer called the police to prevent respondent from removing the child from the home. This incident led DSS to file a petition alleging neglect and dependency of the child.

On 10 December 2003, the trial court conducted a non-secure custody hearing and continued the child in non-secure custody. Additional non-secure custody hearings were held on 17 December 2003, 21 January 2004, 4 February 2004, 25 February 2004, and 31 March 2004. At each hearing, the trial court ordered the child to remain in non-secure custody. The child was adjudicated neglected and dependent on 11 May 2004. The trial court entered a dispositional order on 26 May 2004 and awarded legal guardianship of the child to Ms. Pointer. Respondent appeals.

II. Issues

The issues on appeal are whether the trial court erred by: (1) awarding guardianship of the child to Ms. Pointer; (2) ordering visitation between respondent and the child at the discretion of Ms. Pointer; (3) concluding respondent had neglected the child; and (4) concluding the child was dependent as to respondent.

III. Preservation of Error

DSS argues that respondent failed to preserve the assignments of error regarding legal guardianship and visitation for our review because she failed to object to the trial court's award of guardianship and its ruling on visitation at the conclusion of the trial. We disagree.

Rule 10(a) of the North Carolina Rules of Appellate Procedure provides "that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly making them the basis of assignments of error, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law...." N.C.R.App. P. 10(a) (2004). Respondent assigns error to the trial court's order granting Ms. Pointer legal guardianship of the child, as well as the visitation the trial court awarded respondent. Respondent's failure to object at the dispositional hearing is not a failure to preserve these issues for appeal. Id. Nor is a party required to object at the hearing or raise a motion in order to preserve this type of question for appellate review. Id. DSS's argument is overruled.

IV. Legal Guardianship

A. Appointment

Respondent contends: (1) chapter 7B of the North Carolina General Statutes does not authorize awarding guardianship at the dispositional hearing following an adjudication; and (2) awarding guardianship is tantamount to ceasing reunification efforts and thus requires findings pursuant to N.C. Gen. Stat. § 7B-507(b), which was not done in this case. We disagree.

N.C. Gen.Stat. § 7B-600 governs the appointment of a guardian. It provides that "[i]n any case when no parent appears in a hearing with the juvenile or when the court finds it would be in the bests interests of the juvenile, the court may appoint a guardian of the person for the juvenile." N.C. Gen.Stat. § 7B-600(a) (2003) (emphasis supplied). This statute permits the trial court to appoint a guardian at any time during the juvenile proceedings, including the dispositional hearing, *651 when it finds such appointment to be in the juvenile's best interests. The dispositional order in this case demonstrates the court found guardianship to be in the child's best interest following the presentation of all the evidence at the adjudicatory hearing and after review of DSS's and guardian ad litem's reports. Respondent did not appear at the dispositional hearing. "No parent appear[ing]" provide the court with additional grounds to appoint a guardian under the statute. Id. Respondent's contention is overruled.

B. Guardianship Equates to Ceasing Reunification

Respondent contends if the trial court has authority to award guardianship at the dispositional hearing such an award is tantamount to ceasing reunification efforts, and the trial court is required to make findings of fact pursuant to N.C. Gen.Stat. § 7B-507(b). Respondent asserts the trial court's failure to make such findings was reversible error. We disagree.

Respondent argues the court's award of guardianship here is equivalent to the cessation of reunification efforts and that challenging guardianship is more difficult than the mere grant of legal custody. Under N.C. Gen.Stat. § 7B-600(b), the court may not terminate a legal guardianship absent a showing that the relationship between the guardian and a juvenile is no longer in the juvenile's best interest, the guardian is unfit, has neglected their duties, or is unwilling or unable to continue the guardianship. Respondent incorrectly interprets this portion of the statute.

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Cite This Page — Counsel Stack

Bluebook (online)
621 S.E.2d 647, 174 N.C. App. 517, 2005 N.C. App. LEXIS 2494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ec-ncctapp-2005.