IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-721
Filed 15 October 2024
Buncombe County, Nos. 18 JA 334, 20 JA 94, 20 JA 333
IN THE MATTER OF: Q.J.P., M.P., K.L.
Appeal by respondent-mother from orders entered 13 February 2023 by Judge
Susan M. Dotson-Smith in District Court, Buncombe County. Heard in the Court of
Appeals 6 September 2024.
Jack Densmore, Esq., for petitioner-appellee Buncombe County Department of Health and Human Services.
Parry Law, PLLC, by Neil A. Riemann, for the guardian ad litem.
Robinson & Lawing, LLP, by Christopher M. Watford, for respondent-appellant mother.
STROUD, Judge.
In this appeal from initial permanency planning orders concerning three of her
minor children, respondent-mother contends that the district court violated statutory
mandates set forth in the Juvenile Code by failing to make the necessary written
findings in support of the concurrent plans the court established for the juveniles—
plans which did not include their reunification with respondent-mother. We agree,
and as explained below, the controlling statutes and caselaw require us to remand all
three permanency planning orders to the district court for entry of the missing
required written findings.
I. Factual Background and Procedural History IN RE: Q.J.P., M.P., K.L.
Opinion of the Court
At the time of the permanency planning hearing which resulted in the orders
from which this appeal is taken, Mother had three children, Quincy, Mary, and
Keith,1 who were born in 2017, 2019, and 2020, respectively. Each of these juveniles
has a different father, none of whom is a party to this appeal. However, Mother’s
relationship with Keith’s father played a role in the filing of the petitions which led
to this appeal, as discussed in greater detail below.
The Buncombe County Department of Health and Human Services (“DHHS”)
became involved with the family in January 2020, prior to Keith’s birth, due to reports
of domestic violence between Mother and Keith’s father, and juvenile petitions were
filed with respect to Quincy and Mary on 9 March 2020. Quincy and Mary were
placed in the non-secure custody of DHHS.
Shortly after Keith was born in August 2020, DHHS received another report
of domestic violence between Mother and Keith’s father. On 2 September 2020,
Mother and DHHS entered into a safety plan wherein Mother agreed that her mother
would supervise any contact between Keith and herself and that Mother would have
no contact with Keith’s father in the presence of any of the three children. Several
weeks later, the maternal grandmother moved into Mother’s home, and DHHS
dismissed the prior juvenile petitions for Quincy and Mary and allowed all three
1 Stipulated pseudonyms are used to protect the identity of the juveniles pursuant to Rules 3.1 and 42
of the North Carolina Rules of Appellate Procedure. See N.C. R. App. P. 3.1; see also N.C. R. App. P. 42.
-2- IN RE: Q.J.P., M.P., K.L.
children to reside in Mother’s home with the grandmother as the juveniles’ temporary
safety provider. Mother was directed to “ensure the children have no contact with
[Keith’s] father[.]”
On 17 November 2020, DHHS received a report alleging that Keith’s father (1)
was living in Mother’s home with the children in violation of the safety plan, (2) had
“got[ten] mad and busted a television” in the presence of the children, and (3) had
punched Mother, giving her a black eye. Three days later, on 20 November 2020,
DHHS received information that law enforcement had conducted a traffic stop on
Mother’s vehicle just after midnight on that date, with Mother driving and Keith’s
father, Mary, and Keith also present in the vehicle. DHHS assumed custody of the
children and filed new juvenile petitions alleging that each was a neglected juvenile.
On 20 August 2021, the district court entered orders adjudicating each child as
neglected, based in part on stipulations of Mother, and also entered dispositions in
each matter.
Following ten days of hearings between December 2021 and August 2022, the
district court entered an initial permanency planning order for each of the children
on 13 February 2023. The court ordered that Quincy and Mary remain in the custody
of DHHS and set their primary plans of care as guardianship with the secondary plan
as reunification with their fathers. However, we also note that the order for Mary
includes contradictory findings of fact regarding Mary’s permanent plan. In finding
of fact 23, the court states that the primary plan for Mary is “adoption, with a
-3- IN RE: Q.J.P., M.P., K.L.
secondary permanency plan of reunification with” her father. (Emphasis added). Yet
in finding of fact 46, the court found that DHHS should “make reasonable efforts to
finalize the primary permanency plan of guardianship[ ] and the secondary
permanency plan of reunification with” Mary’s father. (Emphasis added). In finding
of fact 47, the court found that “guardianship is not [an] appropriate plan at this time”
and that “adoption is an appropriate plan.” “[T]he primary plan of adoption” is also
mentioned in finding of fact 55.
Nonetheless, in the portion of the order containing conclusions of law, after
ordering that Mary remain in the custody of DHHS, the court set Mary’s primary
permanent plan as guardianship with a secondary plan of reunification with her
father and ordered DHHS to “make reasonable efforts to implement the primary
permanency plan of guardianship[ ] and the secondary permanency plan of
reunification with” Mary’s father. In any event, on the key point for our resolution of
this appeal—that reunification with Mother was not included as a permanent plan
for Mary—the order was consistent and clear.
In its order for Keith, the district court found that reunification with either
Mother or his father would be inconsistent with Keith’s health and safety, and thus
set his primary plan as adoption and his secondary plan as guardianship.
On 9 March 2023, Mother filed a notice to preserve right of appeal pursuant to
North Carolina General Statute Sections 7B-1001(a)(5) and (8). Mother subsequently
-4- IN RE: Q.J.P., M.P., K.L.
filed a notice of appeal from the initial permanency planning orders on 15 May 2023
and an amended notice of appeal from the orders on 16 May 2023.
II. Analysis
Mother contends that the district court’s initial permanency planning orders
for the children violated North Carolina General Statute Section 7B-906.2(b) by
eliminating reunification with Mother as a concurrent permanent plan without
making written findings as required under the statute. We agree.
A. Standards of Review
This Court reviews an order that ceases reunification efforts to determine whether the [district] court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the [district] court’s conclusions, and whether the [district] court abused its discretion with respect to disposition. The [district] court’s findings of fact are conclusive on appeal if supported by any competent evidence. This is true even where some evidence supports contrary findings. Unchallenged findings are deemed to be supported by sufficient evidence and are [also] binding on appeal.
In re P.T.W., 250 N.C. App. 589, 594, 794 S.E.2d 843, 848 (2016) (emphasis in original)
(citations and quotation marks omitted).
“We consider matters of statutory interpretation de novo.” In re M.S., 247 N.C.
App. 89, 91, 785 S.E.2d 590, 592 (2016) (citation and quotation marks omitted).
Likewise, an alleged violation of a statutory mandate presents a question of law that
is considered de novo, under which standard we consider the issue anew and without
-5- IN RE: Q.J.P., M.P., K.L.
deference to the decision below. See In re A.M., 220 N.C. App. 136, 137, 724 S.E.2d
651, 653 (2012).
B. Grounds for Appellate Review
As an initial matter, we must address the argument by the guardian ad litem
(“GAL”) and DHHS that Mother’s appeal from the permanency planning orders for
Quincy and Mary is not properly before this Court. Chapter 7B of the Juvenile
Code—which governs abuse, neglect, and dependency matters—directs the district
court to hold permanency planning hearings for juveniles who have been removed
from their parents’ custody. See N.C. Gen. Stat. § 7B-906.1(a) (2023). At each such
hearing, “the court shall adopt one or more . . . permanent plans the court finds is in
the juvenile’s best interest[.]” N.C. Gen. Stat. § 7B-906.2(a) (2023) (setting forth six
options including, inter alia, reunification, adoption, and guardianship). More
specifically, “the court shall adopt concurrent permanent plans and shall identify the
primary plan and secondary plan. Reunification shall be a primary or secondary plan
unless the court” makes specific written findings “the permanent plan is or has been
achieved[.]” N.C. Gen. Stat. § 7B-906.2(b).
Chapter 7B also specifies what abuse/neglect/dependency “orders may be
appealed directly to the Court of Appeals.” N.C. Gen. Stat. § 7B-1001 (2023).
Pertinent to this matter, a direct appeal to this Court is permitted from a permanency
planning order that
eliminat[es] reunification, as defined by G.S. 7B-101(18c),
-6- IN RE: Q.J.P., M.P., K.L.
as a permanent plan by either of the following:
a. A parent who is a party and:
1. Has preserved the right to appeal the order in writing within 30 days after entry and service of the order.
2. A termination of parental rights petition or motion has not been filed within 65 days of entry and service of the order.
3. A notice of appeal of the order eliminating reunification is filed within 30 days after the expiration of the 65 days.
b. A party who is a guardian or custodian with whom reunification is not a permanent plan.
N.C. Gen. Stat. § 7B-1001(a)(5).
It is undisputed that Mother is “[a] parent who is a party” and that she
“preserved [her] right to appeal the [permanency planning] order” in a timely fashion.
N.C. Gen. Stat. § 7B-1001(a)(5)(a). But the GAL and DHHS submit that, because the
initial permanency planning orders set reunification with Quincy’s and Mary’s
fathers—although not with Mother—as secondary plans for those children, Mother
has no right of appeal because the orders for those children did not “eliminat[e]
reunification, as defined by G.S. 7B-101(18c), as a permanent plan.” N.C. Gen. Stat.
§ 7B-1001(a)(5). We are not persuaded by this suggested reading of the relevant
statutes.
North Carolina General Statute Section 7B-101(18c) defines “[r]eturn home or
reunification” as the “[p]lacement of the juvenile in the home of either parent or
-7- IN RE: Q.J.P., M.P., K.L.
placement of the juvenile in the home of a guardian or custodian from whose home
the child was removed by court order.” N.C. Gen. Stat. § 7B-101(18c) (2023). We note
that North Carolina General Statute Section 7B-1001(a)(5) incorporates the
definition of “reunification” in Section 7B-1001(a)(5) and identifies the parties who
have a right of direct appeal to this Court from a permanency planning order
eliminating reunification as either “[a] parent” or “a guardian or custodian with
whom reunification is not a permanent plan.” N.C. Gen. Stat. § 7B-1001(a)(5)(a), (b).
Moreover, while the placement of the clause “from whose home the child was removed
by court order” suggests it explicitly applies to “a guardian or custodian,” we are
unconvinced by the implication underlying appellees’ argument, to wit, that a parent
“from whose home the child was removed by court order,” N.C. Gen. Stat. § 7B-
101(18c), lacks a similar right of direct appeal from an order eliminating reunification
with that parent from a child’s permanent plans.2 That reading would require us to
presume that the General Assembly intended to provide a greater right of appeal to
a guardian or custodian of a child from whose home the child was removed than to a
similarly situated parent.
Such a result appears unreasonable and indeed to verge on the absurd. See In
re J.N.S., 207 N.C. App. 670, 677, 704 S.E.2d 511, 516 (2010) (“In construing
2 This case does not require this Court to resolve whether a parent who did not have physical custody
of a child when that child was removed from the home of the other parent or from the home of another guardian or custodian would have a right of direct appeal under the applicable statutes, and accordingly, we do not reach that question.
-8- IN RE: Q.J.P., M.P., K.L.
statutes[,] courts normally adopt an interpretation which will avoid absurd or bizarre
consequences, the presumption being that the legislature acted in accordance with
reason and common sense and did not intend untoward results.” (citation and
quotation marks omitted)). As emphasized by our Supreme Court, “[t]he Juvenile
Code strikes a balance between the constitutional rights of a parent and the best
interests of a child[.]” In re R.R.N., 368 N.C. 167, 169, 775 S.E.2d 656, 659 (2015)
(emphasis added) (citing N.C. Gen. Stat. § 7B-100(3) (stating that one purpose of the
Code is “[t]o provide for services for the protection of juveniles by means that respect
both the right to family autonomy and the juveniles’ needs for safety, continuity, and
permanence”)). To bar Mother’s timely appeal from an order eliminating her
reunification with the children removed from her home as a permanent plan—where
a guardian’s or custodian’s appeal would be permitted in an identical circumstance—
simply because reunification with the children’s fathers in separate households
remained as concurrent permanent plans appears to us counter to such a balance.
Our holding here is further supported by North Carolina General Statute
Section 7B-1002, which provides that, among the “[p]roper parties for appeal” “from
an order permitted under G.S. 7B-1001,” is “[a] parent . . . who is a nonprevailing
party.” N.C. Gen. Stat. § 7B-1002(4) (2023). A foundational concept in our appellate
jurisprudence is that the right to appeal belongs to a nonprevailing or “aggrieved”
party. See In re Halifax Paper Co., 259 N.C. 589, 595, 131 S.E.2d 441, 446 (1963)
(defining a “person aggrieved” as a party “adversely affected in respect of legal rights,
-9- IN RE: Q.J.P., M.P., K.L.
or suffering from an infringement or denial of legal rights” (citation and quotation
marks omitted)). In the context of the Juvenile Code, this Court has indicated that a
parent is an aggrieved party if his or her rights have been “directly and injuriously
affected” by a district court’s action. In re C.A.D., 247 N.C. App. 552, 563, 786 S.E.2d
745, 752 (2016) (citation omitted). By eliminating reunification with her as a
permanent plan for Quincy and Mary, the orders here have a direct and injurious
effect on Mother.
In sum, we hold that Mother’s appeal of the permanency planning order as to
Quincy and Mary is properly before this Court.
C. Required Written Findings
Mother’s substantive contention is that the permanency planning orders for
Quincy, Mary, and Keith must be reversed because each lacks findings required
under the Juvenile Code. Specifically, she notes that the orders concerning Quincy
and Mary lack written findings mandated in subsections (b) and (d) of North Carolina
General Statute Section 7B-906.2, while the order concerning Keith lacks a written
finding under subsection (d). These arguments have merit, although as discussed
herein, remand for the necessary findings, rather than reversal of the orders is the
appropriate remedy.
As noted above, the district court was required to “adopt concurrent permanent
plans,” with “[r]eunification . . . a primary or secondary plan unless . . . the court
[made] written findings that reunification efforts clearly would be unsuccessful or
- 10 - IN RE: Q.J.P., M.P., K.L.
would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. § 7B-
906.2(b). “In determining that efforts would be unsuccessful or contrary to the
juvenile’s well-being, the court must make written findings ‘demonstrat[ing] lack of
success’ as to each” of four matters provided in subsection 7B-906.2(d). In re J.M.,
271 N.C. App. 186, 198, 843 S.E.2d 668, 676 (2020) (quoting N.C. Gen. Stat. § 7B-
906.2(b)). Those matters are:
(1) Whether the parent is making adequate progress within a reasonable period of time under the plan.
(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.
(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.
(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.
N.C. Gen. Stat. § 7B-906.2(d). As explained above, reunification with Mother was not
a concurrent plan for any of the three juveniles, and accordingly, written findings on
these four matters were required. See id.
In the permanency planning orders concerning Quincy and Mary, the district
court made no written findings that “reunification efforts clearly would be
unsuccessful or would be inconsistent with the juvenile’s health or safety,” N.C. Gen.
Stat. § 7B-906.2(b), and no written findings regarding Mother’s availability to the
court, DHHS, and the GAL or “[w]hether [she] is acting in a manner inconsistent with
- 11 - IN RE: Q.J.P., M.P., K.L.
the health or safety of” Quincy and Mary, N.C. Gen. Stat. § 7B-906.2(d)(3), (4). These
omissions are indistinguishable from those presented in the order reviewed by this
Court in In re J.M., where the district court also made no written finding pursuant
to North Carolina General Statute Section 7B-906.2(b) and made written findings on
only two of the four matters set forth in North Carolina General Statute Section 7B-
906.2(d). See In re J.M., 271 N.C. App. at 198, 843 S.E.2d at 676. Accordingly,
“[b]ecause ‘the [district] court failed to make the requisite findings required to cease
reunification efforts’ under Section 7B-906.2(d), we vacate the [district] court’s
order[s as to Quincy and Mary] and remand for it to make those findings.” Id.
(quoting In re D.A., 258 N.C. App. 247, 254, 811 S.E.2d 729, 734 (2018)).
The permanency planning order concerning Keith differs from those
concerning his half-siblings. The district court therein did make a written finding
“that reunification at this time would be inconsistent with the minor child’s health
and safety and need for a safe, permanent home within a reasonable period of time.”
See N.C. Gen. Stat. § 7B-906.2(b). However, it made no written finding of fact
regarding Mother’s availability “to the court, the department, and the guardian ad
litem for the juvenile[.]” N.C. Gen. Stat. § 7B-906.2(d)(3).
Our Supreme Court has recently considered a case presenting a similar
circumstance, explicitly distinguishing it from In re D.A. and In re J.M. See In re
L.R.L.B., 377 N.C. 311, 324-45, 857 S.E.2d 105, 117 (2021). In that appeal from a
termination of parental rights order, our Supreme Court noted that a previous
- 12 - IN RE: Q.J.P., M.P., K.L.
“permanency planning order [did] not include sufficient written findings as to [the
mother’s availability under North Carolina General Statute Section 7B-906.2(d)(3)]—
but [did] include findings on the ultimate issue—which must be addressed as a
preface to the elimination of reunification from the permanent plan[.]” Id. at 325,
857 S.E.2d at 117. Specifically, our Supreme Court opined:
Unlike the specific finding that “reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety” which is required by N.C.G.S. § 7B-906.2(b) before eliminating reunification from the permanent plan, no particular finding under N.C.G.S. § 7B-906.2(d)(3) is required to support the [district] court’s decision. N.C.G.S. § 7B-906.2(d) merely requires the [district] court to make “written findings as to each of the” issues enumerated in N.C.G.S. § 7B- 906.2(d)(1)-(4), and to consider whether the issues “demonstrate the [parent’s] degree of success or failure toward reunification[.]” N.C.G.S. § 7B-906.2(d). A finding that the parent has remained available to the [district] court and other parties under N.C.G.S. § 7B-906.2(d)(3) does not preclude the [district] court from eliminating reunification from the permanent plan based on the other factors in N.C.G.S. § 7B-906.2(d).
Id. at 325-26, 857 S.E.2d at 117-18.
Although this appeal arises from a permanency planning order and Keith’s
case has not progressed to a termination of parental rights, we see no reason to depart
from the reasoning in In re L.R.L.B. or its guidance that “the appropriate remedy for
the [district] court’s error . . . is to remand this matter to the [district] court for the
entry of additional findings in contemplation of N.C.G.S. § 7B-906.2(d)(3).” Id. at 326,
857 S.E.2d at 118 (citations omitted). Further, upon remand,
- 13 - IN RE: Q.J.P., M.P., K.L.
[i]f the [district] court’s additional findings under . . . § 7B- 906.2(d)(3) do not alter its finding under . . . § 7B-906.2(b) that further reunification efforts ‘are clearly futile or inconsistent with the juvenile’s need for a safe, permanent home within a reasonable period of time[,]’ then the [district] court may simply amend its permanency planning order to include the additional findings[.]
Id. at 327, 857 S.E.2d at 118.
III. Conclusion
The initial permanency planning orders regarding Quincy and Mary are
vacated and remanded for the entry of findings pursuant to North Carolina General
Statute Sections 7B-906.2(b) and 7B-906.2(d)(3) and (4). On remand, the district
court should also reconcile the contradictory findings in Mary’s order as noted above
so the resulting order will clearly identify the appropriate primary and secondary
plans as required by North Carolina General Statute Section 7B-906.2(b). The initial
permanency planning order regarding Keith is remanded for entry of a finding
pursuant to North Carolina General Statute Section 7B-906.2(d)(3).
18 JA 334 AND 20 JA 94: VACATED AND REMANDED.
18 JA 333: REMANDED.
Judges FLOOD and STADING concur.
- 14 -