IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-30
Filed: 16 August 2016
Rowan County, No. 14 JA 41
IN THE MATTER OF: E.M.
Appeal by Respondent from order entered 8 October 2015 by Judge Charlie
Brown in Rowan County District Court. Heard in the Court of Appeals 25 July 2016.
Jane Thompson for Petitioner Rowan County Department of Social Services.
Miller & Audino, LLP, by Jeffrey L. Miller, for Respondent-mother.
Parker Poe Adams & Bernstein LLP, by William L. Esser IV, for Guardian ad
Litem.
STEPHENS, Judge.
Respondent, the mother of E.M. (“Eddie”),1 appeals from a permanency
planning review order (1) changing the permanent plan for her son from a concurrent
plan of reunification, or custody or guardianship with a relative, to a sole plan of
custody or guardianship with a relative and (2) awarding legal custody of Eddie to a
paternal cousin and his wife. Because we agree with some of Respondent’s arguments
and conclude that the order appealed from is flawed in certain respects, we vacate
the permanency planning review order in part and remand for further proceedings.
1We use pseudonyms to refer to the minors discussed in this opinion in order to protect their privacy
and for ease of reading. See N.C.R. App. P. 3.1(b).
In re: E.M.
Opinion of the Court
Factual and Procedural History
On 7 April 2014, the Rowan County Department of Social Services (“DSS”) took
Eddie and his half-sister, A.M. (“Abby”), into nonsecure custody and filed a petition
alleging that Eddie was a dependent and neglected juvenile and that Abby was an
abused, dependent, and neglected juvenile.2 The petition alleged that Eddie’s father
sexually molested Abby in the home he shared with Respondent and the two children
and that Respondent knew of the sexual abuse, but failed to report it to law
enforcement or DSS.
At the adjudication hearing on 31 July 2014, the parties entered several
stipulations, including that the district court could consider evidence of statements
made by Abby regarding the sexual abuse and that the court could adjudicate Abby
as an abused juvenile and Eddie as a neglected juvenile. Respondent’s stipulations
included the following: In mid-February 2014 when Respondent returned from the
hospital after giving birth to Eddie, Abby told Respondent that Eddie’s father had
come into her bedroom at night, made her take off her clothes, have her put on a robe
but leave it untied, and “ma[d]e her hump a doll.” Abby reported that on another
occasion Eddie’s father pulled her pants down and “tried sticking [his penis] in [her].”
Respondent did not believe Abby’s statements and did not report her daughter’s
2 Eddie and Abby are Respondent’s children by different fathers. Eddie’s father has not appealed, and
Abby is not a subject of this appeal. In addition, Respondent has three other children, also not subjects
of this appeal. Their father, Respondent’s estranged husband, was awarded custody of his children on
31 March 2014.
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Opinion of the Court
abuse at that time. Abby’s abuse at the hands of Eddie’s father was subsequently
revealed in statements Abby gave to a social worker on 3 March 2014. Respondent
also stipulated that although she had previously entered into a safety assessment
with DSS that Eddie’s father not be around her children, Eddie’s father was in the
home with Abby throughout the early months of 2014 and up until at least 1 April
2014.
Respondent subsequently separated from Eddie’s father and, on 29 April 2014,
moved into a two-bedroom home which she shared with Eddie’s paternal uncle
(“Mike”). Respondent denied having a romantic relationship with Mike despite
reports from several people that they were involved in such a relationship. On 26
July 2014, police were dispatched to the home to investigate a purported domestic
dispute between Mike and Respondent, but no report was filed. However,
Respondent’s estranged husband reported to a DSS social worker that, during a visit
his three children made to Respondent’s home, Mike became upset with Respondent
and punched his hand through a glass window, requiring stitches. Respondent told
the social worker that she and Mike do not drink alcoholic beverages in the home, but
when the social worker and a co-worker visited the home on 9 July 2014, Mike was
intoxicated. Although Respondent attempted to intervene, Mike stated he was
getting another drink and “as long as he is drunk at home his drinking isn’t a
problem.” Mike did acknowledge that he was on probation for driving while impaired.
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Opinion of the Court
On 27 August 2014, the court entered a written order adjudicating Abby as an
abused and neglected juvenile and adjudicating Eddie as a neglected juvenile. The
court awarded custody of Abby to her father and custody of Eddie to DSS, who placed
him in the home of his paternal cousins. The order included the stipulations
discussed supra, as well as findings of fact that Respondent, inter alia, (1) began
working through Select Staffing on 29 April 2014 at a boutique earning $7.75 per
hour, working nine to forty hours per week; and (2) completed the Women’s
Empowerment Program for victims of domestic violence at Genesis on 21 July 2014
and attended two individual mental health counseling sessions on 30 July 2014; but
(3) “typically [appeared] disheveled” during visits with the social worker and Eddie.
The order directed Respondent to maintain safe, sanitary, and stable housing;
maintain employment to support herself and Eddie and to provide proof of income;
complete parenting classes and show skills learned; submit to random drug screens;
and re-engage in mental health treatment if her depression and/or anxiety worsened.
The court postponed establishment of a permanent plan to the first permanency
planning review (“PPR”) hearing.
On 13 November 2014, the court held a PPR hearing and, on 19 December
2014, filed an order establishing a permanent plan of reunification of Eddie with
Respondent. The court’s findings of fact indicated that, at the time of the hearing,
Eddie was living with his paternal cousins, in whose care he was doing extremely
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well. At the time of the PPR hearing, Respondent had completed all of her treatment
recommendations through Genesis, shown initiative by continuing to participate in
mental health treatment, and attempted to enroll in various parenting classes. She
continued to work through Select Staffing and started a new job on 26 August 2014
earning $9.00 per hour. However, Respondent could not afford to pay her bills based
solely on her income. Her highest bi-weekly paycheck was $259.60, representing 40
hours of work plus a half hour of overtime. Pay records from Select Staffing indicated
that Respondent earned approximately $600 per month in income, which the court
noted was less than the total required for her to meet all of her household expenses.
In addition, Respondent reported continuing to drive her car without insurance since
15 August 2014 because she was unable to pay the premium.
Social workers visited Respondent’s home on 14 August, 27 August, and 4
September 2014. Although the social workers advised Respondent and Mike that
they could not recommend placement of Eddie with Respondent as long as Mike
resided in the home, Mike continued to live there. Upon being informed of this
recommendation, Mike became very aggressive and cursed the social workers. He
also spoke very aggressively toward Respondent, “telling her to shut up and let him
talk.” Although Respondent “verbalized her realization that her living arrangements
will continue to present a hostile environment” for herself and Eddie, she refused to
live separately from Mike. The court found as fact that Respondent’s continued
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Opinion of the Court
willingness to accept disrespectful behavior from Mike also indicated her inability to
effectively implement the relationship skills she had learned at Genesis. Respondent
had not attempted to obtain more affordable housing for herself and Eddie, but had
disposed of unrelated pending criminal charges, completed negative drug screens,
and visited with Eddie weekly for a minimum of two hours each visit.
On 12 February 2015, the district court held another PPR hearing and filed an
order on 17 March 2015 changing the permanent plan for Eddie to a concurrent plan
of reunification and custody or guardianship with a relative or court-approved
caretaker. The court’s findings of fact indicated that Eddie was continuing to do well
in his foster home. Respondent still lived in the same residence and worked through
Select Staffing, earning between $131.89 and $487.77 per paycheck. Although Mike
reportedly moved out of the residence on 10 December 2014 to an undisclosed
address, Respondent continued to care for his three dogs and their two cats. Mike
also continued to have weekly visitations with his own child in Respondent’s home.
Respondent spent a lot of time with Mike and his family during the holidays, even
though she had begun dating another man in September 2014. She brought Mike,
who was intoxicated, to a visit with Eddie at his foster home on 12 January 2015.
Respondent continued to submit negative drug screens, and she completed all of her
treatment recommendations.
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In re: E.M.
Opinion of the Court
On 27 August 2015, the court conducted another custody and PPR hearing,
and, on 8 October 2015, filed the order under review (“the PPR order”). The findings
in this order indicated that Eddie continued to do well in the home of his paternal
cousins. Respondent obtained employment with Pactiv on 14 July 2015 and produced
a pay stub stating she earned $998.53 for the period from 2 August to 15 August 2015.
Respondent was dating a fellow employee at Pactiv. Although Respondent’s new
boyfriend told social workers that he did not smoke or drink, a check of criminal
records disclosed that he was convicted in 2009 of driving while impaired and driving
after consuming alcohol. Respondent also continued to maintain a relationship with
Mike. Further findings of fact will be discussed later in this opinion as pertinent to
the issues raised by Respondent in her appeal. The court granted legal custody of
Eddie to his paternal cousins, granted weekly supervised visitation to Respondent at
her expense, and ordered that no further review hearings were necessary. From the
PPR order, Respondent filed a written notice of appeal on 30 October 2015.
Discussion
On appeal, Respondent argues that the district court erred in: (1) making
numerous findings of fact in the PPR order not supported by clear, cogent, and
competent evidence; (2) failing to make the findings of fact required by the provisions
of various statutes; (3) requiring her to pay the costs of services for her supervised
visits without making the necessary findings of fact; and (4) failing to apply the
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required standard of proof when finding that Respondent acted inconsistently with
her constitutional rights as a parent. We affirm in part, and vacate and remand in
part.
Standard 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 . . . court’s
conclusions, and whether the . . . court abused its discretion with respect to
disposition.” In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations
omitted). “An abuse of discretion occurs when the [district] court’s ruling is so
arbitrary that it could not have been the result of a reasoned decision.” In re N.G.,
186 N.C. App. 1, 10-11, 650 S.E.2d 45, 51 (2007) (citation and internal quotation
marks omitted), affirmed per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
I. Evidentiary support for findings of fact
Respondent first argues that many of the district court’s findings of fact are
not supported by clear, cogent, and competent evidence presented at the custody and
PPR hearing. We dismiss Respondent’s argument regarding a majority of the
challenged factual findings as not preserved for our review, and we conclude that any
error in the remaining findings of fact challenged by Respondent was not prejudicial
to her.
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Opinion of the Court
Respondent contends that a majority of the findings of fact are based upon
court reports and documents that were never offered or received into evidence.
However, the record indicates that Respondent failed to preserve this issue for
appellate review by presenting to the district court “a timely request, objection, or
motion, stating the specific grounds for the ruling the party desired the court to make
. . . .” See N.C.R. App. P. 10(a). The hearing transcript shows that the challenged
reports and documents were referred to several times, but that Respondent made no
objection or motion to strike or exclude the evidence. Further, even if Respondent
had preserved this issue for appellate review, she could not show error because a
court holding a PPR hearing is free to consider written reports or other documentary
evidence without a formal proffer or admission of the documents into evidence as
exhibits.3 In re J.H., __ N.C. App. __, __, 780 S.E.2d 228, 239 (2015).
Here, as Respondent acknowledges, the majority of the findings of fact she
challenges are based upon court reports and other documentary exhibits. We hold
the district court properly considered the reports and attachments and that they,
3 In the preamble to its findings of fact, the district court stated that it considered the sworn testimony
of a named social worker, the foster mother, Respondent, and the social worker’s written court report
dated 15 July 2015 and supplemented on 27 August 2015, “copies of which are attached hereto, the
factual statements in the reports are hereby adopted and incorporated, except as modified by reference
herein . . . .” The reports were omitted from the record on appeal, but have been attached as appendices
to the joint brief filed by DSS and the Guardian ad Litem. On our own motion pursuant to N.C.R. App.
P. 9(b)(5)(b), we add these reports to the record on appeal.
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Opinion of the Court
supplemented by testimony of witnesses, support challenged findings of fact 2, 8-11,
12-17, 19-21, 24, 26-28, 34, 43-44, and 48.
Respondent also challenges portions of finding of fact 49, in which the district
court found that Respondent appeared to be active on several internet “adult dating
sites.” Respondent argues this matter was not relevant to her ability to parent her
child. We agree, but note that the inclusion of an erroneous finding of fact is not
reversible error where the court’s other factual findings support its determination.
In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding that “[w]hen
. . . ample other findings of fact support an adjudication of neglect, erroneous findings
unnecessary to the determination do not constitute reversible error”) (citation
omitted). For the same reason, Respondent cannot show reversible error in finding
of fact 52—that DSS had contended reunification was not in Eddie’s best interest—
which she characterizes as a “mere recitation of a contention or statement of DSS.”
Respondent does not explain how this recitation, which she does not contend is
inaccurate, was in any way necessary to the court’s determination given the other
factual findings in support of the court’s permanent plan, as discussed infra.
II. Compliance with statutory provisions
Respondent argues that the PPR order failed to comply with the requirements
imposed by several of our State’s General Statutes. We address each argument
individually below.
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A. Compliance with section 7B-906.1(d)(3)
Respondent contends that the district court erred in ceasing reunification
efforts because its findings of fact failed to comply with the provisions of section 7B-
906.2(b), which became effective 1 October 2015 and “applies to actions filed or
pending on or after that date.” See 2015 N.C. Sess. Laws c. 135, §§ 14, 18. This
subsection provides that reunification shall be the primary or secondary permanent
plan unless the court makes findings under N.C. Gen. Stat. § 7B-901(c)—which the
district court here did not do—or “makes 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) (2015). Prior to 1 October 2015, the provisions
of section 7B-906.1(d)(3) applied to PPR orders and required a factual finding that
“efforts to reunite the juvenile . . . clearly would be futile or inconsistent with the
juvenile’s safety and need for a safe, permanent home within a reasonable period of
time.” N.C. Gen. Stat. § 7B-906.1(d)(3) (2013).
The PPR order here uses the language from section 7B-906.1(d)(3), but
Respondent asserts that the amended statute applies because the PPR order was not
filed until 8 October 2015. Alternatively, Respondent argues that even if section7B-
906.1(d)(3) applies to the PPR order, the district court’s findings of fact do not
establish clear futility or an unsafe environment. We conclude that section 7B-
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906.1(d)(3) applies in this matter and further that the PPR order complies with the
requirements of that statute.
We first note that, although the written PPR order was signed and filed on 8
October 2015, after the effective date of section 7B-906.2, the PPR hearing was
conducted and concluded on 27 August 2015, and that the court’s ruling—that
reunification efforts would be ceased and Eddie’s permanent plan would be changed
to custody with his paternal cousins—was announced in open court on that date. The
question, then, is whether the “action” was still “pending” after the hearing
concluded. “Pending” is defined as “[r]emaining undecided [or] awaiting decision[,]”
see Pending, Black’s Law Dictionary (9th ed. 2009), and the district court certainly
could, upon reflection, have elected to alter some aspect of the ruling it announced in
open court when reducing its ruling to writing in the PPR order. However, the PPR
order did not vary in any way from the ruling announced in open court.
Critically, both subsection 7B-906.1(d) and subsection 7B-906.2(b) provide
guidance for the district court’s action at a PPR “hearing[.]” See N.C. Gen. Stat. § 7B-
906.1(d) (“At each hearing . . . .”); see also N.C. Gen. Stat. § 7B-906.2(b) (“At any
permanency planning hearing . . . .”). Here, at the time of the PPR hearing, the criteria
the court was directed to consider were those enumerated in subsection 7B-906.1(d).
Respondent’s interpretation of the effective date of section 7B-906.2(b) would require
us to hold that, in deciding a child’s permanent plan, the district court should have
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considered criteria listed in a statute which was not in effect at the time of the
proceeding at which the court heard evidence regarding the permanent plan. Such a
holding would be nonsensical. In matters of statutory construction, we are guided by
the directive to “effectuate legislative intent . . . while avoiding absurd or illogical
interpretations . . . .” Fort v. Cty. of Cumberland, 218 N.C. App. 401, 407, 721 S.E.2d
350, 355 (2012) (citations and internal quotation marks omitted), disc. review denied,
366 N.C. 401, 735 S.E.2d 180 (2012).
In turn, the “finding” of futility “is in the nature of a conclusion of law that
must be supported by adequate findings of fact.” In re J.H., __ N.C. App. at __, 780
S.E.2d at 243 (citation and internal quotation marks omitted). The district court’s
conclusion of law 4 states that continuation of a plan of reunification with Respondent
“would be futile and is inconsistent with the juvenile’s need for a safe, stable home
within a reasonable period of time.” This conclusion of law is supported by the court’s
findings of fact that: (1) Respondent stipulated that she was aware of the sexual
abuse of another of her children by Eddie’s father but failed to report it to law
enforcement; (2) although Respondent had been participating in a parenting program
since March 2015, the parent-educator who worked with her wrote a letter on 10
August 2015 expressing concern about Respondent’s ability to protect her child
against abuse; (3) the same parent-educator noted that when she and Respondent
discussed the topic of child abuse prevention on 6 August 2015, just days before the
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PPR hearing, Respondent “slumped down in her chair and appeared agitated”; (4)
Respondent told the parent-educator that if she suspected abuse of a child she would
“just leave” and stated emphatically that she would not call law enforcement or DSS
“because nothing would be done about it”; (5) Respondent knew that placement of
Eddie in her home would not be recommended if there were still concerns about her
living, parenting, and financial situation and, at the February 2015 review hearing,
Respondent was ordered to explore affordable housing options separate from the man
with whom she was living at the time, attend visitation with Eddie, maintain
employment, submit to random drug screens, and demonstrate skills learned from
parenting class, but at the time of the hearing in August 2015, Respondent had moved
in with another man upon whom she is dependent for housing and from whom she
receives financial support; and (6) Respondent was often observed using her cell
phone to text or make calls and watching television instead of interacting with Eddie
during visits. In addition, the court found as fact that (7) Eddie often looked to
Respondent for comfort during visits but Respondent seldom gave her son comfort;
(8) Eddie attempted to talk to Respondent but she did not listen to her son; and (9)
Respondent did not follow the parent-educator’s recommendations to bring toys and
prepare activities for visits with Eddie, to greet Eddie at the beginning of visits, and
to end visits with a hug or kiss. These findings of fact support the conclusion of law
that continuation of a plan of reunification with Respondent “would be futile and is
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inconsistent with the juvenile’s need for a safe, stable home within a reasonable
period of time.”
B. Compliance with section 7B-906.1(j)
Respondent next contends that the district court erred by granting custody to
a non-parent without verifying that the person receiving custody understood the legal
significance of the placement and will have adequate resources to care appropriately
for the juvenile as required by N.C. Gen. Stat. § 7B-906.1(j). Specifically, while
Respondent acknowledges that the court did find that the paternal cousins who
received custody of Eddie “understand the legal significance of custody and have
sufficient resources to care appropriately for the juvenile,” this finding is not
supported by evidence presented at the hearing. We agree in part and disagree in
part.
Although a district court is not required to make specific findings of fact, “the
statute does require the . . . court to make a determination that the guardian has
adequate resources and some evidence of the guardian’s resources is necessary as a
practical matter, since the . . . court cannot make any determination of adequacy
without evidence . . . .” In re J.H., __ N.C. App. at __, 780 S.E.2d at 240 (citation and
internal quotation marks omitted). For example, In re, we found the utter lack of
actual evidence regarding the guardian’s resources insufficient to support the district
court’s determination:
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[The guardian’s] unsworn affirmative answer to the . . .
court’s inquiry as to whether she had the financial and
emotional ability to support this child and provide for its
need alone is not sufficient evidence, as this is [the
guardian’s] own opinion of her abilities. No doubt, had the
. . . court asked [the] respondent the same question, she
also would have said yes, but her answer alone would not
have been sufficient evidence of her actual resources or
abilities to care for [the child] either. The . . . court has the
responsibility to make an independent determination,
based upon facts in the particular case, that the resources
available to the potential guardian are in fact adequate[].
In this case, there is no evidence at all of what [the
guardian] considered to be adequate resources or what her
resources were, other than the fact that she had been
providing a residence for [the child]. And the evidence
indicated that, even in providing a residence, [the
guardian] had moved several times and had lived with
friends or roommates. The . . . court even seemed to
recognize that [the guardian] may at some point lack
resources to care for [the child] on her own, as indicated by
the question: And do you have the willingness to reach out
when your resources are running [out], so that you could
make sure that they have whatever is in their best
interest?
In re P.A., __ N.C. App. __, __, 772 S.E.2d 240, 248 (2015) (citation and internal
quotation marks omitted).
Likewise, in In re J.H., we found insufficient the district court’s finding of fact
that the grandparents [with whom the child had been in
placement for 10 months] had met “[a]ll of his well-being
needs[,]” and [a] DSS report stated that they had been
“meeting [the child’s] medical needs as well, making sure
that he has his yearly well-checkups.” The GAL’s . . . report
stated that [the child] had “no current financial or material
needs[.]”
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__ N.C. App. at __, 780 S.E.2d at 240. In both cases, evidence of the guardian’s
resources was conclusory, indirect, and inferential.
In contrast, here, direct, specific evidence supports the court’s finding that the
paternal cousins have adequate resources to care appropriately for Eddie. Competent
evidence supports the findings of fact that (1) the paternal cousins have their own
home, a double-wide mobile home with a yard, where Eddie has been residing for the
past sixteen months; (2) Eddie has his own bedroom and play area in the home and a
playset and outside toys in the yard; and (3) all of Eddie’s medical, dental, vision, and
developmental needs are being met such that “Eddie lacks for nothing, as it seems as
if he has every riding, educational and interactive toy imaginable.” There was
detailed evidence regarding Eddie’s life with the paternal cousins, including the
husband’s employment with three employers, namely as a detention officer for the
Rowan County Sheriff’s Office, as a military policeman on inactive reserve in the
National Guard, and as a forklift operator for another entity. His wife cares for Eddie
during the week, and, when she works at a retail store on weekends, her mother or
mother-in-law cares for Eddie. The paternal cousins have taken Eddie to Disney
World in Florida and camping at Stone Mountain in Georgia, and had a future family
trip planned to Myrtle Beach. The paternal cousins also gave Eddie a party on his
first birthday. This evidence is sufficient to support the district court’s determination
that the paternal cousins have adequate resources to care for Eddie.
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However, no evidence in the record supports the court’s finding that either of
the custodians understand the legal significance of the placement. As we noted in
J.H., a “court cannot make a determination that a potential guardian understands
the legal significance of the guardianship unless the . . . court receives evidence to
that effect.” Id. at __, 780 S.E.2d at 240 (citation omitted). Evidence sufficient to
support a factual finding that a potential guardian understands the legal significance
of guardianship can include, inter alia, testimony from the potential guardian of a
desire to take guardianship of the child, the signing of a guardianship agreement
acknowledging an understanding of the legal relationship, and testimony from a
social worker that the potential guardian was willing to assume legal guardianship.
See In re L.M., __ N.C. App. __, __, 767 S.E.2d 430, 433 (2014) (affirming a
guardianship order as to one guardian in light of his testimony and that of a social
worker). Further, this requirement of sufficient evidence applies to all potential
guardians. Id. For example, in In re L.M., we concluded that the evidence did not
support a finding that the other potential guardian in that matter understood the
legal significance of guardianship where she did not testify, sign a guardianship
agreement, or otherwise demonstrate that she had accepted responsibility for the
child. Id.
Here, the husband in the custodial couple did not testify, and there is no
evidence to indicate that he understood the legal significance of taking custody of
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Eddie. Further, although his wife testified at the hearing, she never testified
regarding her understanding of the legal relationship, and the court never examined
her to determine whether she understands the legal significance of the relationship.
The report submitted by DSS contains no statement that either of the custodians
understood the legal significance of guardianship. Accordingly, we must vacate the
award of legal custody and remand for further proceedings consistent with this
opinion.
C. Compliance with section 7B-906.1(n)
Respondent next contends that the district court erred by releasing the parties
and waiving further review hearings without making the findings of fact mandated
by N.C. Gen. Stat. § 7B-906.1(n). This statute provides that
the court may waive the holding of hearings required by
this section, may require written reports to the court by the
agency or person holding custody in lieu of review hearings,
or order that review hearings be held less often than every
six months if the court finds by clear, cogent, and
convincing evidence each of the following:
(1) The juvenile has resided in the placement for a period
of at least one year.
(2) The placement is stable and continuation of the
placement is in the juvenile’s best interests.
(3) Neither the juvenile’s best interests nor the rights of
any party require that review hearings be held every six
months.
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(4) All parties are aware that the matter may be brought
before the court for review at any time by the filing of a
motion for review or on the court’s own motion.
(5) The court order has designated the relative or other
suitable person as the juvenile’s permanent custodian or
guardian of the person.
N.C. Gen. Stat. § 7B-906.1(n). Respondent argues the PPR order fails to state the
standard of proof it applied in its order or to include findings on each of the factors
required by this subsection. We agree.
Although the best practice is for a court to affirmatively state the standard of
proof that it applied in making factual determinations, the failure to do so is not
prejudicial error if the “record when viewed in its entirety clearly reveals that the
court applied the proper evidentiary standard” or where the appellant does not
challenge those factual findings as lacking evidentiary support. In re M.D., 200 N.C.
App. 35, 39, 682 S.E.2d 780, 783 (2009). Further, the failure to state the burden of
proof in the written order is not reversible error if the court states the appropriate
standard of proof in open court. Id. In addition, the failure to make “written findings
of fact satisfying each of the enumerated criteria listed in N.C. Gen. Stat. § 7B-
906.1(n) . . . constitutes reversible error.” In re P.A., __ N.C. App. at __, 772 S.E.2d
at 249.
Here, the district court failed to state the standard of proof it applied in making
the factual determinations required under this subsection in the PPR order or in open
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court, and we cannot say that the “record when viewed in its entirety clearly reveals
that the court applied the proper evidentiary standard . . . .” In re M.D., 200 N.C.
App. at 39, 682 S.E.2d at 783. Further, while the court found as fact that “[f]urther
review hearings are not necessary, as the juvenile has resided with [his paternal
cousins] for over one year, and no party is requesting review[,]” the PPR order does
not include factual findings on the remaining enumerated criteria. For these reasons,
the portion of the order waiving future review hearings must be vacated. See id.; see
also In re P.A., __ N.C. App. at __, 772 S.E.2d at 249.
D. Compliance with section 7B-906.1(e)(2)
Respondent further contends that the court failed to comply with section 7B-
906.1(e)(2) by not establishing rights and responsibilities that remain with
Respondent, other than to establish visitation rights. She argues that since the
General Assembly provided for visitation privileges in a separate statute—N.C. Gen.
Stat. § 7B-905.1—it must have intended for the district court to establish other rights
and responsibilities in its order.
We do not read the court’s order so narrowly. The order provides that the
paternal cousins shall “have the care, custody, and control of the juvenile” and “have
the authority to consent to any necessary remedial, psychological, medical or surgical
treatment for the juvenile.” The order further specifies the actions required for
Respondent to regain custody in the future. With regard to visitation, the order
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Opinion of the Court
specifies that if she wants visitation in addition to weekly visitation supervised by
the custodians, she must pay for it. We conclude the order adequately established
the rights and responsibilities of the parties.
III. Order to pay costs of supervised visits
Respondent next argues the court erred by requiring her to pay the costs of
services for her supervised visits without making any findings of fact regarding the
cost and her ability to pay it. We agree. “Without [finding whether a parent is able
to pay for supervised visitation once ordered], our appellate courts are unable to
determine if the . . . court abused its discretion by requiring as a condition of visitation
that visits with the children be at [a] respondent[’s] expense.” In re J.C., 368 N.C. 89,
89, 772 S.E.2d 465, 465 (2015) (per curiam) (citations omitted). Failure to make this
finding requires this Court to vacate the portion of the order requiring that the
visitation be at Respondent’s expense and to remand for entry of a new order
containing the required findings of fact. Id. Accordingly, the portion of the PPR order
requiring Respondent to pay the cost of visitation is vacated and remanded for further
proceedings consistent with this opinion.
IV. Finding of fact regarding actions inconsistent with constitutional rights as parent
Finally, Respondent argues the court erred in that its finding of fact that she
acted inconsistently with her constitutional rights as a parent was not based on the
required standard of proof, to wit, clear and convincing evidence. We agree.
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Opinion of the Court
“[T]he 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 her constitutionally-protected status.” Adams v.
Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001) (citations omitted; emphasis
added). Because the decision to remove a child from a natural parent’s custody “must
not be lightly undertaken[,] . . . [the] determination that a parent’s conduct is
inconsistent with . . . her constitutionally protected status must be supported by clear
and convincing evidence.” Id. at 63, 550 S.E.2d at 503 (citation omitted). “While this
analysis is often applied in civil custody cases under Chapter 50 of the North Carolina
General Statutes, it also applies to custody awards arising out of juvenile petitions
filed under Chapter 7B.” In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357
(2011) (citation omitted). “Clear and convincing” evidence is an intermediate
standard of proof, greater than the preponderance of the evidence standard applied
in most civil cases, but not as stringent as the requirement of proof beyond a
reasonable doubt required in most criminal cases. In re Montgomery, 311 N.C. 101,
109-10, 316 S.E.2d 246, 252 (1984). “Absent an indication that the [district] court
applied the clear and convincing standard,” we must vacate this portion of the PPR
order and remand for entry of a new finding of fact that makes clear the standard of
proof applied by the district court in determining whether Respondent’s actions have
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Opinion of the Court
been inconsistent with her constitutionally-protected status as Eddie’s parent. See
Bennett v. Hawks, 170 N.C. App. 426, 429, 613 S.E.2d 40, 42 (2005).
Conclusion
In sum, we hold the court erred by (1) requiring Respondent to pay for
supervised visits without making necessary findings, (2) waiving further review
hearings without making all necessary findings of fact, (3) awarding legal custody to
a non-parent without evidence to support its findings that the potential custodians
understand the legal significance of the relationship, and (4) awarding custody to a
non-parent without stating that it has applied the proper standard of proof. We
vacate those portions of the order and remand for further proceedings consistent with
this opinion. The PPR order is otherwise affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges DAVIS and DIETZ concur.
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