In re K.I.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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).