An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1403 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: Catawba County K.I., and Nos. 09 JA 22-23 A.I. MINOR CHILDREN.
Appeal by respondent from order entered 4 September 2013 by
Judge L. Suzanne Owsley in Catawba County District Court. Heard
in the Court of Appeals 14 April 2014.
Valeree R. Adams, Staff Attorney, for petitioner-appellee Catawba County Department of Social Services.
Administrative Office of the Courts, by Tawanda N. Foster, Appellate Counsel, for guardian ad litem.
J. Thomas Diepenbrock for respondent-appellant.
DAVIS, Judge.
K.W. (“Respondent”) appeals from an order ceasing further
efforts to reunify her with her minor children K.I. (“Karen”)
and A.I. (“Audrey”)1 and awarding guardianship of the children to
1 Pseudonyms are used to protect the privacy of the minor children and for ease of reading. N.C.R. App. P.3.1(b). -2- their paternal grandparents (“Mr. and Mrs. G.”). After careful
review, we affirm.
Factual Background
Karen and Audrey were born in April 2000 and January 2004,
respectively, while Respondent was married to their father (“Mr.
I.”). The children lived with Respondent after she and Mr. I.
divorced. Respondent also had custody of her son (“Calvin”),
who was born in February 1998. Calvin’s father (“Mr. S.”)
established paternity through genetic testing and was awarded
legal and physical custody in July 2009.2
The Catawba County Department of Social Services (“DSS”)
became involved with Respondent’s family in 1999 in response to
reports of domestic violence and drug and alcohol abuse by
Respondent and Mr. I. DSS received seven such reports between
October 1999 and January 2009, four of which resulted in DSS
providing services to Respondent.
In January 2009, DSS learned that in late 2007 or early
2008, seven-year-old Karen had disclosed multiple incidents of
sexual abuse by Respondent’s live-in boyfriend (“Mr. H.”).
Respondent told DSS and Karen that she did not believe the
allegations, and she continued to allow Mr. H. unsupervised
2 Calvin died in a car accident later that year. -3- contact with her children. Respondent denied the possibility of
sexual abuse to emergency room staff who examined Karen in April
2008. When DSS offered Respondent a safety plan that required
Mr. H. to leave the home, she demurred, stating that he had
nowhere to go. Respondent instead suggested that her children
move in with her mother, their maternal grandmother. Respondent
made this proposal without revealing to DSS that she had
witnessed her brother – who also resided with her mother –
attempt to perform oral sex on Karen or that her brother had
inappropriately touched Calvin and “was allegedly caught
attempting to sodomize another child.” Respondent’s children
stayed one night with their maternal grandmother but returned to
Respondent’s home after Mr. H. moved out.
On 23 January 2009, DSS filed a juvenile petition alleging
that Karen was abused and all three of Respondent’s children
were neglected and dependent. DSS obtained non-secure custody
of the children and placed Calvin with Mr. S. and the girls with
Mr. and Mrs. G. After the petition was filed, Respondent told
Mrs. G. “that [Respondent] was going to get a lawyer and prove
that [Karen] lied and get a lie detector test for [Karen] to
show that she was lying.” Karen subsequently disclosed
longstanding and ongoing sexual abuse by Respondent’s brother. -4- The trial court entered an adjudication of abuse as to
Karen and adjudications of neglect and dependency as to all
three children in March 2009. The court cited Respondent’s
failure to protect Karen after being told of repeated acts of
sexual abuse by Mr. H., Respondent’s and Mr. I.’s history of
substance abuse and domestic violence, and prior reports of a
lack of supervision by Respondent. The court specifically
approved Calvin’s placement with his father and Karen and
Audrey’s placement with Mr. and Mrs. G. It later established a
permanent plan for Karen and Audrey of reunification with
Respondent.
The trial court granted legal custody of Karen and Audrey
to Respondent on 13 July 2010 based on her progress with her
case plan. In November 2012, DSS filed a motion for review,
alleging that Respondent and her new husband (“Mr. W.”) had
become intoxicated and engaged in an act of domestic violence in
front of Karen, Audrey, and one of Karen’s friends. When Karen
attempted to pull Mr. W. off of Respondent, he “became angry and
put his arm through a glass door cutting the nerve in his right
arm.” The motion asserted that both sets of grandparents “have
expressed concerns regarding the increased drinking by
[Respondent], which has apparently increased since Mr. [W.] -5- moved into the home.” Karen and Audrey had also “reported that
their mother drinks a lot and that [Mr. W.] gets crazy and tries
to hurt [Respondent].”
By order entered 24 January 2013, the trial court placed
Karen and Audrey with Mr. I. pending conclusion of the hearing
on DSS’s motion. The court expressed “significant concerns
regarding the criminal record and behaviors of [Respondent’s]
new husband, as well as of [Respondent]” and noted that
Respondent had terminated her daughters’ therapy after they were
returned to her home. The court also found that Mr. and Mrs. G.
had been licensed as foster parents while caring for the
children in 2009 and that DSS had recently visited their home
and found no concerns.
At the conclusion of the hearing on 19 February 2013, the
trial court returned Karen and Audrey to DSS custody and
approved placement with Mr. and Mrs. G. In addition to the
domestic violence incident described above, the court found that
“Mr. [W.] has a history of domestic violence” and a “significant
criminal history, including” convictions for alcohol and drug
offenses. Noting that Respondent “admits she has been drinking
heavily[,]” the court further found that she “has demonstrated a
pattern of engaging in relationships with people who engage in -6- violence” and “has a history of using alcohol and drugs to
excess [and] . . . . of not putting the minor children first in
making decisions.”
After review hearings on 13 May and 5 August 2013, the
trial court entered an order on 4 September 2013 relieving DSS
of further efforts toward reunification and awarding
guardianship of Karen and Audrey to Mr. and Mrs. G. Respondent
filed a timely notice of appeal.
Analysis
I. Guardianship
Respondent first claims that the trial court erred by
awarding guardianship of the children to Mr. and Mrs. G. without
making the determination required by N.C. Gen. Stat. § 7B-
600(c). Subsection (c) provides that the court, when appointing
a guardian under the statute, 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.
Free access — add to your briefcase to read the full text and ask questions with AI
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1403 NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: Catawba County K.I., and Nos. 09 JA 22-23 A.I. MINOR CHILDREN.
Appeal by respondent from order entered 4 September 2013 by
Judge L. Suzanne Owsley in Catawba County District Court. Heard
in the Court of Appeals 14 April 2014.
Valeree R. Adams, Staff Attorney, for petitioner-appellee Catawba County Department of Social Services.
Administrative Office of the Courts, by Tawanda N. Foster, Appellate Counsel, for guardian ad litem.
J. Thomas Diepenbrock for respondent-appellant.
DAVIS, Judge.
K.W. (“Respondent”) appeals from an order ceasing further
efforts to reunify her with her minor children K.I. (“Karen”)
and A.I. (“Audrey”)1 and awarding guardianship of the children to
1 Pseudonyms are used to protect the privacy of the minor children and for ease of reading. N.C.R. App. P.3.1(b). -2- their paternal grandparents (“Mr. and Mrs. G.”). After careful
review, we affirm.
Factual Background
Karen and Audrey were born in April 2000 and January 2004,
respectively, while Respondent was married to their father (“Mr.
I.”). The children lived with Respondent after she and Mr. I.
divorced. Respondent also had custody of her son (“Calvin”),
who was born in February 1998. Calvin’s father (“Mr. S.”)
established paternity through genetic testing and was awarded
legal and physical custody in July 2009.2
The Catawba County Department of Social Services (“DSS”)
became involved with Respondent’s family in 1999 in response to
reports of domestic violence and drug and alcohol abuse by
Respondent and Mr. I. DSS received seven such reports between
October 1999 and January 2009, four of which resulted in DSS
providing services to Respondent.
In January 2009, DSS learned that in late 2007 or early
2008, seven-year-old Karen had disclosed multiple incidents of
sexual abuse by Respondent’s live-in boyfriend (“Mr. H.”).
Respondent told DSS and Karen that she did not believe the
allegations, and she continued to allow Mr. H. unsupervised
2 Calvin died in a car accident later that year. -3- contact with her children. Respondent denied the possibility of
sexual abuse to emergency room staff who examined Karen in April
2008. When DSS offered Respondent a safety plan that required
Mr. H. to leave the home, she demurred, stating that he had
nowhere to go. Respondent instead suggested that her children
move in with her mother, their maternal grandmother. Respondent
made this proposal without revealing to DSS that she had
witnessed her brother – who also resided with her mother –
attempt to perform oral sex on Karen or that her brother had
inappropriately touched Calvin and “was allegedly caught
attempting to sodomize another child.” Respondent’s children
stayed one night with their maternal grandmother but returned to
Respondent’s home after Mr. H. moved out.
On 23 January 2009, DSS filed a juvenile petition alleging
that Karen was abused and all three of Respondent’s children
were neglected and dependent. DSS obtained non-secure custody
of the children and placed Calvin with Mr. S. and the girls with
Mr. and Mrs. G. After the petition was filed, Respondent told
Mrs. G. “that [Respondent] was going to get a lawyer and prove
that [Karen] lied and get a lie detector test for [Karen] to
show that she was lying.” Karen subsequently disclosed
longstanding and ongoing sexual abuse by Respondent’s brother. -4- The trial court entered an adjudication of abuse as to
Karen and adjudications of neglect and dependency as to all
three children in March 2009. The court cited Respondent’s
failure to protect Karen after being told of repeated acts of
sexual abuse by Mr. H., Respondent’s and Mr. I.’s history of
substance abuse and domestic violence, and prior reports of a
lack of supervision by Respondent. The court specifically
approved Calvin’s placement with his father and Karen and
Audrey’s placement with Mr. and Mrs. G. It later established a
permanent plan for Karen and Audrey of reunification with
Respondent.
The trial court granted legal custody of Karen and Audrey
to Respondent on 13 July 2010 based on her progress with her
case plan. In November 2012, DSS filed a motion for review,
alleging that Respondent and her new husband (“Mr. W.”) had
become intoxicated and engaged in an act of domestic violence in
front of Karen, Audrey, and one of Karen’s friends. When Karen
attempted to pull Mr. W. off of Respondent, he “became angry and
put his arm through a glass door cutting the nerve in his right
arm.” The motion asserted that both sets of grandparents “have
expressed concerns regarding the increased drinking by
[Respondent], which has apparently increased since Mr. [W.] -5- moved into the home.” Karen and Audrey had also “reported that
their mother drinks a lot and that [Mr. W.] gets crazy and tries
to hurt [Respondent].”
By order entered 24 January 2013, the trial court placed
Karen and Audrey with Mr. I. pending conclusion of the hearing
on DSS’s motion. The court expressed “significant concerns
regarding the criminal record and behaviors of [Respondent’s]
new husband, as well as of [Respondent]” and noted that
Respondent had terminated her daughters’ therapy after they were
returned to her home. The court also found that Mr. and Mrs. G.
had been licensed as foster parents while caring for the
children in 2009 and that DSS had recently visited their home
and found no concerns.
At the conclusion of the hearing on 19 February 2013, the
trial court returned Karen and Audrey to DSS custody and
approved placement with Mr. and Mrs. G. In addition to the
domestic violence incident described above, the court found that
“Mr. [W.] has a history of domestic violence” and a “significant
criminal history, including” convictions for alcohol and drug
offenses. Noting that Respondent “admits she has been drinking
heavily[,]” the court further found that she “has demonstrated a
pattern of engaging in relationships with people who engage in -6- violence” and “has a history of using alcohol and drugs to
excess [and] . . . . of not putting the minor children first in
making decisions.”
After review hearings on 13 May and 5 August 2013, the
trial court entered an order on 4 September 2013 relieving DSS
of further efforts toward reunification and awarding
guardianship of Karen and Audrey to Mr. and Mrs. G. Respondent
filed a timely notice of appeal.
Analysis
I. Guardianship
Respondent first claims that the trial court erred by
awarding guardianship of the children to Mr. and Mrs. G. without
making the determination required by N.C. Gen. Stat. § 7B-
600(c). Subsection (c) provides that the court, when appointing
a guardian under the statute, 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) (2013). We have previously held § 7B-600(c) does not
“require that the court make any specific findings in order to
make the verification.” In re J.E., 182 N.C. App. 612, 617, 643
S.E.2d 70, 73 (2007). -7- Respondent concedes that the court made the following
finding in accordance with N.C. Gen. Stat. § 7B-600(c):
The Court has conducted an inquiry of [Mr. and Mrs. G.], paternal grandparents and placement providers. They are present in court and understand the responsibilities of assuming guardianship of these children. They provided placement for the children when the children were previously before this Court. Mr. and Mrs. [G.] understand the legal significance of guardianship and have adequate resources to care for the children. . . .
She contends, however, that “the findings are not supported by
competent evidence.”
“All dispositional orders of the trial court after abuse,
neglect and dependency hearings must contain findings of fact
based upon the credible evidence presented at the hearing. If
the trial court’s findings of fact are supported by competent
evidence, they are conclusive on appeal.” In re Weiler, 158
N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) (citations
omitted). We hold that the court’s verification under N.C. Gen.
Stat. § 7B-600(c) was supported by ample competent evidence.
Mr. and Mrs. G. attended the review hearing on 5 August
2013. The court addressed Mrs. G. directly regarding her
responsibilities as a guardian. Mrs. G. agreed to limit and
supervise Mr. I’s contact with Karen and Audrey and acknowledged -8- that this responsibility would be on “a permanent [and] forever
basis.” Mrs. G. further confirmed her willingness to cooperate
with Respondent regarding her visitation with her daughters.
After reporting that “the girls are doing real well[,]” Mrs. G.
expressly affirmed to the court: “I think that I can meet all
the girls’ needs in whatever they need, get them to the places
they need to be, the things that they want to do.” Though she
was hopeful of changing the girls’ schools, Mrs. G. expressed a
willingness to “do whatever the court decides.” Following this
exchange, the court announced its conclusion that Mrs. G.
“appears to have a good understanding of her statutory
responsibility and does have the resources to be able to meet
the needs of these children.”
Both DSS and the guardian ad litem (“GAL”) submitted
written reports recommending that the court award guardianship
of Karen and Audrey to Mr. and Mrs. G. DSS reported that both
girls were doing well in the placement and felt safe in the
grandparents’ home. Likewise, the GAL stated: “They are
receiving the structure, nurturing and safety that the[y] need
and deserve.” In arguing in favor of guardianship at the
hearing, DSS pointed out that Mr. and Mrs. G. “are the two
people that the children have known both the first time that -9- they were before the court and then this time.”
The record before the trial court also included a “Kinship
Home Study” completed by DSS in February 2009, recommending that
Mr. and Mrs. G. be approved as a home placement for Karen and
Audrey. Moreover, the court had overseen Mr. and Mrs. G.’s
caretaking of the girls during their placements from February
2009 to January 2010 and from November 2012 until the review
hearing on 13 August 2013. Such evidence and the court’s
findings comply with the requirements set forth in § 7B-600(c).
See J.E., 182 N.C. App. at 617, 643 S.E.2d at 73 (holding that
trial court complied with § 7B-600(c) by receiving into evidence
and considering home study reports indicating that proposed
guardians “have a clear understanding of the responsibility of
caring for [the juvenile]” and “are committed to raising [the
juvenile] and providing for his [or her] needs regardless of
what may be required”).
Respondent also argues that the trial court “failed to
properly find that it was in the minor children’s best interest
to grant guardianship [to] the paternal grandparents[.]” See
N.C. Gen. Stat. § 7B-600(a) (2013). Section 7B-600 “permits the
trial court to appoint a guardian at any time during the
juvenile proceedings . . . when it finds such appointment to be -10- in the juvenile’s best interests.” In re E.C., 174 N.C. App.
517, 520, 621 S.E.2d 647, 650-51 (2005). The trial court has
broad discretion when determining a juvenile’s best interests,
In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007),
and an authorized disposition based upon such a determination
“will not be disturbed absent clear evidence that the decision
was manifestly unsupported by reason.” In re N.B., 167 N.C.
App. 305, 311, 605 S.E.2d 488, 492 (2004). We also note that
N.C. Gen. Stat. § 7B-903(a) prioritizes placements with a family
member, a priority that extends to subsequent review hearings
under N.C. Gen. Stat. § 7B-906 (2011).3 See In re L.L., 172 N.C.
App. 689, 702, 616 S.E.2d 392, 400 (2005).
To the extent Respondent suggests the court did not make a
determination concerning Karen’s and Audrey’s best interests, we
deem it sufficient to quote the following language from the
order:
3. . . . The best interests of the children require more adequate care and supervision than the parent(s) can offer.
4. The best interests of the minor children
3 N.C. Gen. Stat. § 7B-906 has since been repealed by 2013 N.C. Sess. Laws 129, § 25 (June 19, 2013). However, the trial court made its determination pursuant to this section at a review hearing conducted in August 2013 before the 1 October 2013 date upon which the repeal of N.C. Gen. Stat. § 7B-906 became effective. -11- will be served by entry of the following order.
IT IS THEREFORE ORDERED:
1. Guardianship of the minor children is granted to [Mr. and Mrs. G.]
Regarding Respondent’s challenge to the sufficiency of the trial
court’s findings of fact or the evidence to support its
determination, we find no merit to her claim. The trial court
made detailed findings about the case history, Respondent’s
protracted issues with substance abuse and domestic violence,
and the children’s successful placement with Mr. and Mrs. G.
The court also made findings regarding the children’s need for
“permanence” and the guardians’ understanding of their
responsibilities and their capacity to meet them. Finally, we
observe that the court’s assessment of the children’s best
interests is consistent with the recommendations of DSS and the
GAL. Accordingly, we conclude that the trial court did not
abuse its discretion by awarding guardianship of the children to
Mr. and Mrs. G.
II. Failure to Schedule a Permanency Planning Hearing
Respondent next argues the court failed to comply with the
following statutory mandate:
If the court's determination to cease reunification efforts is made in a hearing -12- that was duly and timely noticed as a permanency planning hearing, then the court may immediately proceed to consider all of the criteria contained in G.S. 7B-907(b). . . . If the court's decision to cease reunification efforts arises in any other hearing, the court shall schedule a subsequent hearing within 30 days to address the permanent plan in accordance with G.S. 7B-907.
N.C. Gen. Stat. § 7B-507(c) (2011) (emphasis added).4
Specifically, Respondent contends that the trial court erred
because it ceased reunification efforts at a review hearing that
was not duly noticed as a permanency planning hearing and “did
not schedule a subsequent hearing within 30 days to address the
permanent plan . . . as required by N.C. Gen. Stat. § 7B-
507(c).” Rather, the 4 September 2013 order stated that “[t]his
matter shall come on for a review . . . on the 28th day of
October, 2013.”
Our Supreme Court has made clear that “[m]andamus is the
proper remedy when the trial court fails to hold a hearing or
enter an order as required by statute.” In re T.H.T., 362 N.C.
446, 454, 665 S.E.2d 54, 59 (2008). “A writ of mandamus ensures
that the trial courts adhere to statutory time frames without
the ensuing delay of a lengthy appeal.” Id. at 455, 665 S.E.2d
4 Because the statute was amended effective 1 October 2013 by 2013 N.C. Sess. Laws 129, § 15, we cite the version in effect at the time of the hearing and the resultant order. -13- at 60. The time-sensitive nature of child welfare cases makes
mandamus particularly appropriate in cases such as this, when
Respondent asserts entitlement to the taking of action by the
trial court within a relatively brief timeframe. See id.
(observing that “mandamus is not only appropriate, but is the
superior remedy”). Despite the expedited nature of appeals
filed pursuant to N.C.R. App. P.3.1, it is apparent that appeal
is not a viable means to enforce a statutory hearing deadline in
juvenile abuse, neglect, and dependency proceedings. Id.
Moreover, during the pendency of Respondent’s appeal, our
General Assembly enacted amendments to Article 9 of the Juvenile
Code applicable to all cases pending on or filed after 1 October
2013. See 2013 N.C. Sess. Laws 129. In pertinent part, these
amendments repealed N.C. Gen. Stat. §§ 7B-906 and -907 and
replaced them with N.C. Gen. Stat. § 7B-906.1 (2013). Id. at §§
25-26. Section 7B-906.1 eliminates the distinction between
review hearings and permanency planning hearings by providing
that all “[r]eview hearings after the initial permanency
planning hearing shall be designated as subsequent permanency
planning hearings.” N.C. Gen. Stat. § 7B-906.1(a).5 Following
5 Likewise, subsection 7B-507(c) now provides that if the court ceases reunification efforts at a hearing that was not noticed as a permanency planning hearing, it must “schedule a subsequent -14- the initial permanency planning hearing, subsequent permanency
planning hearings must now “be held at least every six months
thereafter or earlier as set by the court[.]” N.C. Gen. Stat. §
7B-906.1(a). At each hearing, the trial court must assess the
existing permanent plan and “make specific findings as to the
best plan of care to achieve a safe, permanent home for the
juvenile within a reasonable time.” N.C. Gen. Stat. § 7B-
906.1(d)(3). Therefore, in any “review” hearing conducted after
1 October 2013, the trial court was required to comply with N.C.
Gen. Stat. § 7B-906.1 and make findings about the juveniles’
permanent plan.
The 30-day deadline contemplated by N.C. Gen. Stat. § 7B-
507(c) has long since passed given that the trial court ceased
reunification efforts on 4 September 2013. Moreover, the court
ordered a review hearing for 28 October 2013, after the
effective date of N.C. Gen. Stat. § 7B-906.1. The 28 October
2013 hearing and any subsequent “review” hearing held after the
issuance of our opinion must proceed as a “subsequent permanency
planning hearing” in accordance with N.C. Gen. Stat. § 7B-
906.1(a). As such, we conclude Respondent’s appeal with respect
hearing within 30 days to address the permanent plan in accordance with G.S. 7B-906.1.” N.C. Gen. Stat. § 7B-507(c) (2013). -15- to this issue is moot. Cf. In re Hayes, 111 N.C. App. 384, 388,
432 S.E.2d 862, 864 (ruling that respondent’s challenge to
statutory procedure for commitment hearing was moot where “he
has since had the opportunity to be heard under the amended
statute”), appeal dismissed, 335 N.C. 173, 436 S.E.2d 376
(1993).
Conclusion
For the reasons stated above, we affirm the trial court’s
order ceasing reunification efforts and granting guardianship of
Karen and Audrey to Mr. and Mrs. G.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).