IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-47
Filed 3 December 2024
Pitt County, Nos. 19 JA 107-08
IN THE MATTER OF: T.S., III & M.S.
Appeal by Respondent-mother from order entered 5 October 2023 by Judge
Wendy S. Hazelton in Pitt County District Court. Heard in the Court of Appeals 21
November 2024.
Miller & Audino, LLP, by Jay Anthony Audino, for petitioner-appellee Pitt County Department of Social Services.
GAL Appellate Counsel Matthew D. Wunsche for guardian ad litem.
Anné C. Wright for respondent-appellant mother.
TYSON, Judge.
Respondent-mother appeals from a permanency planning order, which granted
guardianship of her minor children T.S., III (“Thomas”) and M.S. (“Marcus”) to their
paternal grandmother (“Grandmother”). See N.C. R. App. P. 42b (pseudonyms used
to protect the identity of minors). We vacate and remand.
I. Background
The Pitt County Department of Social Services (DSS) filed petitions on 26 July
2019 alleging three-year-old Thomas and four-year-old Marcus were neglected
juveniles. After noting Respondent-mother’s history with DSS dating back to
September 2013, DSS alleged it had received two recent reports: a report on 16 April IN RE: T.S., III & M.S.
Opinion of the Court
2019 claiming the children were left alone in the care of their seven-year-old sibling,
A.S., while Respondent-mother picked up her boyfriend from jail, and a report on 4
June 2019 alleging improper care and supervision. Although the underlying juvenile
neglect proceeding also involved Thomas and Marcus’ siblings A.S. and I.S., the order
on appeal only addresses the guardianship disposition of Thomas and Marcus.
After investigation of the April report, Respondent-mother was arrested for
four counts of misdemeanor child abuse or neglect. Thomas and Marcus were placed
with their maternal aunt in a temporary safety placement. DSS also alleged the
children had consistently missed routine health appointments and were not being
treated for possible developmental delays.
On 30 December 2019, the trial court entered an order adjudicating Thomas
and Marcus as neglected juveniles and placed them with their paternal aunt and
uncle. The trial court found Respondent-mother had made progress on her case plan
by completing a mental health and substance abuse assessment by “taking online
classes[,]” but she had not attended her psychological evaluation appointment, had
been arrested for failing to appear for the misdemeanor child abuse charges, was
unemployed, had only attended one therapy appointment, and she had not
maintained visitation with the boys.
The court ordered Respondent-mother to participate in mental health
treatment, complete a parenting program, submit to a substance abuse assessment,
receive substance abuse treatment, follow the terms of her parole, and obtain and
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maintain stable employment. The trial court awarded joint legal custody of Thomas
and Marcus to their aunt and uncle and Respondent-mother and further awarded
Respondent-mother supervised visitation with her boys for one hour per week.
The trial court entered a three-month review order on 25 March 2020, in which
it found Respondent-mother had failed to complete substance abuse treatment,
maintain her sobriety, complete a psychological evaluation, and consistently visit
with the children. As a result, the court continued Thomas and Marcus’ temporary
placement with their aunt and uncle.
The trial court entered a permanency planning order on 6 August 2020,
maintaining the boys’ placement with their aunt and uncle due to Respondent-
mother’s visitation issues and failure to comply with her case plan. The court set a
primary plan of custody with a relative and secondary plan of reunification and again
the court ordered respondent-mother to complete her case plan requirements.
The trial court entered another permanency planning order on 30 March 2021,
in which it found Respondent-mother had continued to make progress on elements of
her case plan, but she had not completed a mental health assessment or taken a
recent drug test, and she was not regularly visiting with the children. The court
changed the primary permanent plan to guardianship with a relative with a
secondary plan of custody with a relative and awarded guardianship of Thomas and
Marcus to their aunt and uncle. The court directed no further review hearings would
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occur unless sought by the motion of a party and relieved DSS, the guardian ad litem
(GAL), and Respondent-mother’s appointed counsel of further duties
On 22 August 2022, the trial court entered nonsecure custody orders removing
the boys from their aunt and uncle’s home because “[t]he Juvenile[s were] slapped by
the Guardian/Uncle eight times for acting up at the Grandmother’s house[,] [and]
[t]he Guardian/Aunt does not allow the Juveniles to meet with their (sic) therapist
without her present.” The court placed the boys with paternal Grandmother. In
orders signed on 8 September 2022, but not filed until over four months later on 9
January 2023, the trial court dissolved paternal aunt’s and uncle’s guardianship.
The trial court conducted a permanency planning hearing on 8 December 2022.
In the order from that hearing, the court found Respondent-mother had continued to
make progress with her case plan. She had obtained adequate housing and completed
a mental health assessment, but she had not secured verified employment, was not
consistently attending visitation or family therapy, and had tested positive for
cocaine and marijuana. The court set a primary permanent plan of reunification with
a secondary plan of guardianship.
The trial court held the next permanency planning hearing on 15 June 2023.
In its order from the hearing, the court found Respondent-mother had continued to
make progress on her case plan, including obtaining consistent employment,
attending college to study business, and completing a comprehensive clinical
addendum. However, the court noted Respondent-mother had failed to follow the
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recommendations of prior assessments and had failed to use additional visitation
provided to her. The court changed the primary permanent plan to guardianship
with a relative with a secondary plan of reunification.
Another permanency planning hearing was held on 14 September 2023. Prior
to the hearing, DSS and the GAL submitted reports requesting that the trial court
grant guardianship to Grandmother. During the hearing, Respondent-mother’s
counsel specifically argued it was premature to consider guardianship in light of her
recent progress.
The trial court entered a permanency planning order on 5 October 2023, in
which it found “[b]y clear, cogent, and convincing evidence” Respondent-mother was
unfit and was acting inconsistently with her constitutionally-protected status as a
parent. The court granted guardianship of Thomas and Marcus to Grandmother
based on its conclusion that such placement would be in their best interests.
Respondent-mother appeals.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27 and 7B-
1001(4) (2023).
III. Standard of Review
Appellate “review of a permanency planning review order ‘is limited to whether
there is competent evidence in the record to support the findings [of fact] and whether
the findings support the conclusions of law.’” In re H.A.J., 377 N.C. 43, 49, 855 S.E.2d
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464, 469 (2021) (citation omitted). At a permanency planning hearing, any evidence
may be considered, “including hearsay evidence as defined in [N.C. Gen. Stat. §] 8C-
1, Rule 801, or testimony or evidence from any person that is not a party, that the
court finds to be relevant, reliable, and necessary to determine the needs of the
juvenile and the most appropriate disposition.” N.C. Gen. Stat. § 7B-906.1(c) (2023).
“The trial court’s findings of fact are conclusive on appeal if supported by any
competent evidence.” In re H.A.J., 377 N.C. at 49, 855 S.E.2d at 469. Unchallenged
findings of fact are “deemed to be supported by the evidence and are binding on
appeal.” In re J.C.M.J.C., 268 N.C. App. 47, 51, 834 S.E.2d 670, 673-74
(2019) (citation omitted). This Court reviews conclusions of law de novo, and freely
disregards or replaces erroneous conclusions. Id.
IV. Guardianship
Respondent-mother challenges the trial court’s award of guardianship to
paternal Grandmother. She contends many of the trial court’s findings of fact are
unsupported by the evidence and the remaining findings do not support the court’s
conclusion she was unfit and had forfeited her constitutionally-protected status as a
parent.
A. Standard of Review
“The trial court’s legal conclusion that a parent acted inconsistently with his
constitutionally protected status as a parent is reviewed de novo to determine
whether the findings of fact cumulatively support the conclusion and whether the
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conclusion is supported by clear and convincing evidence.” In re I.K., 377 N.C. 417,
421, 858 S.E.2d 607, 611 (2021).
B. Preservation
We address whether Respondent-mother preserved this issue for appellate
review. Generally, “Constitutional issues not raised and passed upon at trial will not
be considered for the first time on appeal.” In re T.P., 217 N.C. App. 181, 186, 718
S.E.2d 716, 719 (2011) (citation omitted); see also N.C.R. App. P. 10(a)(1) (“In order
to preserve an issue for appellate review, a party must have presented to the trial
court a timely request, objection, or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were not apparent from
the context.”).
“A parent’s argument concerning his or her paramount interest to the custody
of his or her child, although afforded constitutional protection, may be waived on
review if the issue is not first raised in the trial court.” In re J.N., 381 N.C. 131, 133,
871 S.E.2d 495, 497-98 (2022); see also In re J.M., 384 N.C. 584, 603-04, 887 S.E.2d
823, 835-36 (2023).
However, an objection is not possible when the trial court enters written
findings of facts and conclusions of law after a hearing is concluded.
[A] trial court’s findings of fact are not evidence, and a parent may not “object” to a trial court’s rendition of an order or findings of fact, even if these are announced in open court at the conclusion of a hearing. If a party has presented evidence and arguments in support of her
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position at trial, has requested that the trial court make a ruling in her favor, and has obtained a ruling from the trial court, she has complied with the requirements of Rule 10 and she may challenge that issue on appeal. An appeal is the procedure for “objecting” to the trial court’s findings of fact and conclusions of law.
In re B.R.W., 278 N.C. App. 382, 399, 863 S.E.2d 202, 215 (2021) (overruling
contentions a mother had waived challenges to determinations she was unfit and had
acted inconsistently with her constitutionally protected status as a parent made in a
permanency planning order entered months after the hearing concluded), aff’d, 381
N.C. 61, 871 S.E.2d 764 (2022).
The court had concluded:
By clear, cogent, and convincing evidence, the Court finds that the Respondent Parents have waived their paramount Constitutional rights to care, custody, and control of the children, because the Respondent Parents are unfit, have neglected the children’s welfare, and have acted inconsistently with their Constitutionally protected status.
See Id. 381 N.C. at 82, 871 S.E.2d at 775-76.
The trial court had erroneously labeled this determination a finding of fact
when “it is, in reality, a conclusion of law[.]”). Id.
C. No Waiver
Here, the trial court’s determination Respondent-mother had forfeited her
constitutionally-protected status as a parent was made in a permanency planning
order entered many months after the court had conducted a permanency planning
hearing. At that hearing, Respondent-mother had specifically argued against the
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guardianship plan, requesting that the trial court delay granting guardianship so she
could continue to make previously-documented progress on her case plan.
Respondent-mother’s counsel argued she was making progress, and while
“progress was slow, . . . it’s speeding up, and she’s been making a lot of progress, great
strides in recent months.” Counsel further argued it was “premature to consider
guardianship” as Respondent-mother was “on the right track to get her kids back.
And if the C[ourt] . . . grants guardianship, that’s sort of -- that avenue is blocked.”
Respondent-mother could not object at the hearing to the trial court’s
determinations not yet entered in a written order. See Id. Respondent-mother’s
counsel specifically argued it was premature to consider guardianship in light of her
recent progress. Respondent-mother sufficiently preserved her challenge to the trial
court’s findings and conclusions she was unfit and had acted inconsistently with her
constitutionally-protected status by asserting her opposition to guardianship at the
permanency planning hearing. See Id.
DSS also argues Respondent-mother’s argument is waived by the doctrine of
collateral estoppel based on the court previously making the same determination
when it awarded guardianship of Thomas and Marcus to their paternal aunt and
uncle in March 2021.
We categorically reject this argument for several reasons. First, the 30 March
2021 permanency planning order does not include a finding or conclusion
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Respondent-mother was unfit or had acted inconsistently with her constitutionally-
protected status as a parent.
Second, even if the trial court had made such a determination, Respondent-
mother’s conduct prior to the March 2021 permanency planning hearing was not
dispositive or conclusive of whether she was acting inconsistently with her protected
status when the trial court granted guardianship to Grandmother in October 2023.
See In re R.P., 252 N.C. App. 301, 304, 798 S.E.2d 428, 430 (2017) (Whenever custody
is granted to a nonparent, “a finding that a parent is unfit or acted inconsistent with
his or her constitutionally protected status [at that time] is nevertheless required,
even when a juvenile has previously been adjudicated neglected and dependent.”).
We address the merits of Respondent-mother’s challenge to the trial court’s
determination she had acted inconsistently with her constitutionally-protected status
as a parent. Id.
D. Findings of Fact
Respondent-mother challenges several findings of fact made by the trial court
to support its conclusion are unsupported by the evidence. “Competent evidence is
evidence that a reasonable mind might accept as adequate to support the
finding[,]”and “may consist of any evidence, including hearsay evidence[,] or
testimony or evidence from any person that is not a party, that the court finds to be
relevant, reliable, and necessary to determine the needs of the juvenile and the most
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appropriate disposition.” In re J.M., 384 N.C. at 591, 887 S.E.2d at 828. (quoting N.C.
Gen. Stat. § 7B-906.1(c) (ellipsis omitted)).
1. Finding of Fact 11
Respondent-mother first challenges the portion of finding of fact 11 which
states “[a]t the previous court date of June 15 [2023], [Respondent-mother] had a
positive result for cocaine from a hair follicle screen. Respondent-mother maintains
she has not used cocaine for over a year and does not have an explanation for the
positive hair follicle result for cocaine.”
Respondent-mother argues this finding was unsupported because during her
testimony at the permanency planning hearing, she hypothesized the positive drug
test was “the result of her dreadlocks hairstyle.” The drug test at issue shows
Respondent-mother had tested positive for cocaine and cocaine metabolites in a 12
June 2023 “Hair 5 Drug Panel Test[.]” At the 14 September 2023 hearing,
Respondent-mother testified she had not used cocaine in over a year.
When she was asked to explain the positive test, Respondent-mother stated: “I
don’t know. Maybe it’s because of the hair, . . . I have dreadlocks, so I don’t really
know how that works.” When Respondent-mother was asked “[s]o you’re not really
sure how you came to test positive for cocaine on that date, but you think it may be
an issue with your hair?” she responded, “I guess so, yes.” Respondent-mother’s
testimony to explain why she had tested positive for cocaine was uncertain and
conjectural, rather than a definitive explanation.
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The challenged portion of finding 11 is supported by competent evidence. To
the extent Respondent-mother testified to an explanation for her positive drug test,
the trial court found her explanation not credible. As credibility determinations rest
within the trial court’s purview, we do not disturb its finding Respondent-mother had
failed to explain her positive drug test. See In re J.I.G., 380 N.C. 747, 754, 869 S.E.2d
710, 715 (2022) (“The assignment of weight and evaluation of the credibility of the
evidence resides solely within the purview of the trial court[.]”).
2. Finding of Fact 14
Respondent-mother next challenges finding of fact 14: “Family therapy for the
Juveniles and the Respondent Mother is scheduled to begin in September.” This
statement is anticipatory and is not based on facts admitted into evidence.
Respondent-mother argues “[t]o the extent this finding of fact intimates that Mother
had not already been participating in family therapy with the juveniles, it should be
disregarded.”
The DSS social worker testified as follows:
Q: Okay. When is family therapy for the juveniles and Respondent-Mother scheduled to begin?
A: Okay, family therapy just resumed back because [the therapist], in June, she transitioned to a new agency. So it just resumed back September the 2nd was their — the children’s first appointment. She made one for [Respondent-mother] on September the 16th. They go on Saturday. But in between trying to get the therapist set up, [the grandmother] and the children had preplanned vacations, so that’s why everything is starting late, because
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of the transition with the therapist and they had preplanned trips.
Finding 14 concerning family therapy was scheduled to begin in September is not
supported as written. The testimony, as opposed to the question asked, clearly
supports Respondent-mother’s assertion “family therapy just resumed” and delays
were due to “trying to get the therapist set up” and “because of the transition with
the therapist and they had preplanned trips.” We reject and disregard this “finding”
as unsupported.
3. Findings of Fact 22, 24, and 25
Respondent-mother also challenges findings of fact 22, 24, and 25, which
address her overall progress and her ability to care for the children in the near future
are unsupported. Finding 22 states Respondent-mother “has not made adequate
progress within a reasonable period of time under the plan. It is not possible to place
the Juveniles with her at this time or within the next six months.” Finding 24 states
“Mother has acted in a manner inconsistent with the emotional health and safety of
the Juveniles.” Finally, finding 25 states “[c]ontinued efforts to reunite the Juveniles
with the Respondent Mother would clearly be unsuccessful or inconsistent with the
children’s health, safety, and need for a safe, permanent home within a reasonable
period of time.”
Respondent-mother asserts these findings are not supported by other findings
of fact or evidence at the permanency planning hearing. She argues they disregard
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the uncontested evidence she had made substantial progress with her case plan, had
negative urine drug screens, had attended visitations, was employed, had stable
housing, had attended therapy, and had successfully completed a required parenting
class and seven of eight other parenting classes.
Respondent-mother’s arguments fail to fully address deficiencies in meeting
her case plan goals, even though she had been working on the case plan for multiple
years. While Respondent-mother did test negative in urine drug screens, she recently
had an unexplained positive hair follicle drug screen in June 2023, just a few months
before the last permanency planning hearing.
As to visitation, the GAL report, accepted into evidence at the hearing,
indicated Respondent-mother had inconsistently attended visitation and had
regularly missed birthdays and holidays with her children. The trial court also found
when Respondent-mother did attend visitation with her children, she asked Marcus
if he wanted to live with her, which “made him uncomfortable[,]” and then she later
“denied that this conversation took place.” This incident purportedly had upset
Marcus and made him “worried that he had been wrong to tell his grandmother”
about it. Respondent-mother “admitted that she told [Marcus] that he would be
coming home soon.” These conversations between a parent and a child to express
hope and anticipation to be reunited in the future does not support a finding of
unfitness or conduct inconsistent with her parental rights.
As to her employment, the GAL report indicated Respondent-mother “has a
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pattern of switching employment on a regular basis[,]” and the trial court found
Respondent-mother was only working part-time at the time of the permanency
planning hearing. This testimony does not support a finding of unfitness or conduct
inconsistent with her parental rights.
Concerning housing, the trial court found “Mother reside[d] in a four-bedroom
home managed by the Greenville Housing Authority.” Other evidence in the record
indicates this subsidized housing may be in jeopardy because Respondent-mother did
not have custody of her children. DSS does not show Respondent-mother’s home is
not a safe, permanent home, or is either unsuitable or poses a risk to her children.
Concerning therapy, the trial court found respondent-mother had “completed
three individual therapy appointments, and a medication management
appointment.” Other evidence reported Respondent-mother had been inconsistent
with her therapy in the past. The DSS social worker testified, “But in between trying
to get the therapist set up, [the grandmother] and the children had preplanned
vacations, so that’s why everything is starting late, because of the transition with the
therapist and they had preplanned trips.”
Concerning parenting classes, uncontested evidence shows Respondent-
mother had completed her first set of parenting classes in March 2020. She agreed
in late 2022 to take another parenting class, and she had completed seven of eight
sessions of that class by the September 2023 permanency planning hearing.
The foregoing and prior permanency planning findings and evidence reflect
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Respondent-mother had made substantial progress on the requirements of her case
plan to address the reasons for her sons’ removal. Under these circumstances and
properly admitted evidence, the trial court did not credit uncontested evidence or
adjudicate the competent conflicting evidence to support a conclusion Respondent-
mother had not made adequate progress.
The trial court had concluded Marcus and Thomas could not be returned to her
care in the next six months, Respondent-mother had acted in a manner inconsistent
with the health and safety of Marcus and Thomas, or future reunification with
Respondent-mother would be unsuccessful or inconsistent with Marcus’ and Thomas’
health, safety, and need for a safe, permanent home within a reasonable period of
time. In light of the unsupported findings, we vacate and remand for further findings
or proceedings. See In re A.J., 386 N.C. 409, 417, 904 S.E.2d 707, 715 (2024).
E. Constitutionally-Protected Status
Respondent-mother argues the trial court’s findings of fact did not support its
conclusion that she had waived her constitutionally protected parental status; and,
as a result, the trial court erred in applying the best interest standard when awarding
guardianship to Grandmother.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a natural parent’s paramount constitutional right to custody and control of his or her children and ensures that the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody or where the parent’s conduct is inconsistent with his or her
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constitutionally protected status.
In re B.R.W., 381 N.C. at 77, 871 S.E.2d at 775-76 (citation and quotation marks
omitted). If the trial court finds by clear and convincing evidence and lawfully
concludes the parent has acted inconsistently with her constitutionally-protected
status as a parent, the court may proceed to apply the “best interest of the child test”
in awarding custody to a nonparent. In re D.A., 258 N.C. App. 247, 250, 811 S.E.2d
729, 732 (2018).
“[T]here is no bright line rule beyond which a parent’s conduct meets this
standard; instead, we examine each case individually in light of all the relevant facts
and circumstances and the applicable legal precedent.” In re B.R.W., 381 N.C. at 82,
871 S.E.2d at 779. “In conducting the required analysis, evidence of a parent’s
conduct should be viewed cumulatively.” Id. at 83, 871 S.E.2d at 779.
In this case, Thomas and Marcus were removed from Respondent-mother’s
home in July 2019 and were adjudicated as neglected juveniles in December 2019. In
the ensuing years, Respondent-mother made uncontested progress on her case plan.
By the time of the permanency planning hearing in June 2023, Respondent-mother
had obtained housing, obtained part-time employment, and engaged in some services.
Respondent-mother had completed the first parenting class and seven of eight
sessions of the second and her agreed-upon most recent parenting classes.
Respondent-mother returned a positive drug screen in June of 2023, which she denied
but could not offer a credible explanation,
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Viewing Respondent-mother’s uncontested evidence and behaviors
cumulatively, the trial court remaining supported findings do not support a lawful
conclusion she is unfit or forfeited her constitutionally-protected parental status to
award guardianship and cease further hearings. We do not disturb the trial court’s
weighing of conflicting evidence, holding DSS to its burden of proof by clear, cogent,
and convincing evidence.
[W]hen an appellate court determines that the trial court’s findings of fact are insufficient, the court must examine whether there is sufficient evidence in the record that could support the necessary findings. If so, the appropriate disposition is to vacate the trial court’s order and remand for entry of a new order. This permits the trial court, as finder of fact, to decide whether to enter a new order with sufficient findings based on the record or to change its conclusions of law because the court cannot make the necessary findings.
In re A.J., 386 N.C. at 417, 904 S.E.2d at 715 (internal citations omitted).
V. Conclusion
“It is not the function of this Court to reweigh the evidence on appeal.” In re
J.M., 271 N.C. App. 186, 194, 843 S.E.2d 668, 674 (2020). Whenever custody is
granted to a nonparent, “a finding that a parent is unfit or acted inconsistent with
his or her constitutionally protected status [at that time] is nevertheless required,
even when a juvenile has previously been adjudicated neglected and dependent.” In
re R.P., 252 N.C. App. 301, 304, 798 S.E.2d 428, 430 (2017).
“The trial court’s legal conclusion that a parent acted inconsistently with his
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constitutionally-protected status as a parent is reviewed de novo to determine
whether the findings of fact cumulatively support the conclusion and whether the
conclusion is supported by clear and convincing evidence.” In re I.K., 377 N.C. 417,
The trial court’s order awarded guardianship and directed no further review
hearings occur. This effectively relieved DSS, the GAL, and Respondent-mother’s
appointed counsel of further duties to provide services toward reunification. The trial
court’s order awarding permanent guardianship is vacated and remanded for further
findings and proceedings. Id.; In re R.P., 252 N.C. App. at 304, 798 S.E.2d at 430. It
is so ordered.
VACATED AND REMANDED.
Judges WOOD and GORE concur.
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