In re K.P. ( 2022 )


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  •                       IN THE SUPREME COURT OF NORTH CAROLINA
    2022-NCSC-128
    No. 251A21
    Filed 16 December 2022
    IN THE MATTER OF: K.P.
    Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
    the Court of Appeals, 
    278 N.C. App. 42
    , 2021-NCCOA-268, vacating an order entered
    on 21 July 2020 by Judge Christopher B. McLendon in District Court, Hyde County,
    and remanding for further findings. Heard in the Supreme Court on 14 February
    2022.
    Rodman, Holscher, Peck & Edwards, P.A., by Jacinta D. Jones, for petitioner-
    appellant Hyde County Department of Social Services.
    Keith Karlsson for respondent-appellee Guardian ad Litem.
    J. Thomas Diepenbrock for respondent-appellee mother.
    MORGAN, Justice.
    ¶1           Petitioner appeals from a decision in the Court of Appeals which vacated a trial
    court order eliminating reunification as a permanent plan and ceasing further review
    hearings in a neglect and dependency case concerning the son of respondent-mother.
    The trial court entered the order at issue after it found that an alternate permanent
    plan of custody with a court-approved caretaker had been achieved and after the trial
    court had received evidence tending to show that the court-approved caretakers
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    understood the legal significance of the juvenile’s placement in their home. Upon
    appeal from respondent-mother, the Court of Appeals vacated the trial court’s
    permanency planning order and remanded the case for further findings of fact. In re
    K.P., 
    278 N.C. App. 42
    , 2021-NCCOA-268.
    ¶2          Because the trial court correctly found that a permanent plan had been
    achieved in this case as an alternative to reunification, and because the trial court
    properly verified that the juvenile’s court-approved caretakers understood the legal
    significance of the juvenile’s placement with them and that they possessed adequate
    resources to care appropriately for the juvenile, we reverse the portions of the Court
    of Appeals opinion that found error in these portions of the trial court’s order.
    Furthermore, we leave undisturbed the portion of the Court of Appeals opinion
    remanding the matter to the trial court to make the findings which are required by
    N.C.G.S. § 7B-906.1(n).
    I.   Factual and Procedural Background
    ¶3          On 22 March 2018, the Hyde County Department of Social Services (DSS) filed
    a juvenile petition which alleged that a three-month-old child named Kenneth1 was
    a neglected and dependent juvenile. The supporting documentation alleged, as the
    trial court later found to be true, that Kenneth’s putative father, George Phillips, had
    1 Pseudonyms are used for the juvenile and his family members to protect the identity
    of the juvenile in conformance with the regular practice of this Court.
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    returned home early on 17 March 2018 to find his wife—respondent-mother—in bed
    with a man named Don Keller. A domestic violence incident ensued in which Phillips
    and Keller struggled over a knife in the presence of Kenneth and Kenneth’s siblings2
    who all resided in the home with respondent-mother and her husband. As a result of
    the fracas, Keller was hospitalized and Phillips was arrested and charged with
    assault with a deadly weapon in the presence of a minor, along with other serious
    charges. Respondent-mother was charged with simple assault. Respondent-mother
    made arrangements for Kenneth to reside with his maternal aunt prior to
    respondent-mother’s arrest. Kenneth stayed with his maternal aunt from 22 March
    2018 until 22 May 2018, when the trial court determined that Kenneth would reside
    with Phillips’s father, George Phillips, Sr., and his wife Mary Phillips, because the
    couple offered “a safe and stable living environment for the juvenile[ ].”
    ¶4         In light of the events which precipitated the removal of Kenneth and his
    siblings from the household in which respondent-mother and her husband resided,
    Phillips questioned Kenneth’s paternity, prompting the trial court at a nonsecure
    custody hearing on 8 August 2018 to order respondent-mother’s husband to submit
    to paternity testing. Kenneth remained in the custody of Phillips, Sr. and Mrs.
    Phillips. On 17 October 2018, the results of the paternity test revealed that Phillips
    was not the biological father of Kenneth. The trial court ordered Keller to submit to
    2   There are no matters regarding Kenneth’s siblings which are at issue in this case.
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    paternity testing after respondent-mother identified him as a potential father of
    Kenneth. In January 2019, Keller was determined to be Kenneth’s biological father.
    ¶5         Having discovered the lack of a biological relationship between Phillips and
    the juvenile Kenneth, the trial court held its first adjudication and disposition
    hearing concerning the underlying neglect and dependency petitions on 10 December
    2018. At this hearing, the trial court adjudicated Kenneth to be a neglected juvenile
    because Kenneth “would reside in an injurious environment if returned to either
    [parent’s] home[ ].” The trial court decreed that respondent-mother needed to address
    the issues which rendered her residence unsafe for Kenneth by participating in
    domestic violence counseling,     participating in anger management classes,
    maintaining stable housing, and obtaining a valid driver’s license with accompanying
    safe transportation. The trial court also noted its concerns about substance abuse
    that may have occurred in respondent-mother’s home. Consistent with its earlier
    determination that Phillips, Sr. and Mrs. Phillips would provide a “safe and stable
    living environment” for the child, the trial court found that the home of Kenneth’s
    grandparents by marriage3 constituted “the least restrictive, most family like
    placement available” and that the “child’s physical and mental health are good”
    because of the couple’s provision of adequate care for Kenneth. These findings were
    3 “Grandparents” by virtue of the legal status of the child Kenneth’s mother—
    respondent-mother here—and Phillips as wife and husband.
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    consistent with earlier findings made by the trial court concerning the
    appropriateness of Kenneth’s placement in the Phillips, Sr. home. These earlier
    findings had been entered in each of the trial court’s orders continuing Kenneth’s
    nonsecure custody with DSS which had been filed since the juvenile’s placement in
    the Phillips, Sr. home. The trial court opted to maintain Kenneth in the custody of
    Phillips, Sr. and Mrs. Phillips despite the discovery of the lack of the presumed father-
    son relationship between Phillips and the juvenile Kenneth. Reunification with
    respondent-mother was set as the permanent plan.
    ¶6         At the permanency planning review hearing conducted on 25 March 2019, the
    trial court continued Kenneth’s nonsecure custody in the home of Phillips, Sr. and
    Mrs. Phillips, while adding a concurrent permanent plan of custody with a relative to
    the existing plan of reunification with respondent-mother. Respondent-mother and
    Phillips, who had separated for a period of time, resumed their marital relationship
    in April 2019. In June 2019, Phillips, Sr. and Mrs. Phillips were serving as the
    placement for Kenneth and all three of his siblings. Mrs. Phillips reported that the
    household was experiencing behavioral issues with the children and financial
    hardship and stated that it would be preferable for two of the four children to be
    placed in another home. In response, the trial court ordered that Kenneth and one of
    his siblings be moved to the home of his “paternal step great grandparents” on 17
    July 2019. Given respondent-mother’s revived relationship with Phillips, Jr. and the
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    couple’s   acquisition   of   appropriate   housing,       the   trial   court   ordered   the
    commencement of a trial home placement with Kenneth by 20 September 2019.
    However, a DSS investigation in October 2019 revealed that both respondent-mother
    and Phillips, Jr. had continued to commit acts of domestic violence upon one another
    in the presence of Kenneth and the other children during the trial home placement.
    The trial court terminated the trial home placement, removed Kenneth from the
    home once again, and placed Kenneth in the care of his maternal aunt in a nearby
    county. Kenneth was returned to the home of Phillips, Sr. and Mrs. Phillips after the
    child’s temporary stay with his maternal aunt.
    ¶7         At a permanency planning review hearing on 13 January 2020, the trial court
    found that, except for having completed anger management and parenting classes as
    directed, respondent-mother had failed to successfully address any of the concerns
    which had resulted in Kenneth’s ongoing removal from the home. Respondent-mother
    continued to be both the victim and perpetrator of domestic violence and had vacated
    the home she had temporarily shared with Phillips during their brief marital
    reconciliation in favor of moving to a two-bedroom apartment with her mother in
    Virginia. Respondent-mother did not have stable employment, had yet to obtain a
    valid driver’s license, and had refused to submit to drug screens since the termination
    of the trial home placement. Despite her participation in services offered by DSS,
    respondent-mother had failed to accomplish the directives which were required to
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    reunite with Kenneth and therefore had “acted inconsistent with the juvenile’s health
    and safety.” The trial court maintained the goal of reunification but revised the
    permanent plan options to include “custody to a court-approved caretaker” in addition
    to the existing permanent plans of reunification and custody to a relative.
    ¶8         At a 3 June 2020 permanency planning review hearing, the trial court received
    testimony that respondent-mother had obtained a driver’s license without an
    accompanying mode of transportation and that she had ended her active involvement
    with Phillips. Otherwise, respondent-mother persisted in her failure to make any
    progress in obtaining appropriate housing, obtaining a verifiable or consistent source
    of income, or participating in domestic violence counseling after such discord
    reoccurred during the trial home placement. Respondent-mother expressed her view
    that further domestic violence counseling would be “irrelevant.” Respondent-mother
    had only submitted to one out of the seven drug screens scheduled for her by DSS
    since December of 2019.
    ¶9         Meanwhile, Kenneth continued to thrive in his placement with Phillips, Sr.
    and Mrs. Phillips over the succeeding months, and the couple indicated a desire to
    serve as the child’s permanent custodians. These grandparents by marriage provided
    appropriate care for Kenneth while maintaining a good working relationship with
    both respondent-mother and respondent-father Keller. In her testimony at the
    permanency planning review hearing held on 3 June 2020, respondent-mother
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    acknowledged that the paternal step-grandmother by marriage Mrs. Phillips had
    done an exemplary job in taking care of Kenneth. DSS social worker Alisha Holloway
    likewise testified that Kenneth was “doing amazing” in the Phillips, Sr. home, adding
    that Phillips, Sr. and Mrs. Phillips had expressed a desire to accept legal custody of
    the child. In related fashion, some of the testimony which Phillips, Sr. offered at the
    hearing was as follows:
    [DSS Attorney]. And do you recall having
    conversations with the Department regarding taking
    custody of [Kenneth]?
    [George Phillips, Sr.]. Yes, ma’am.
    Q. And are you and your wife willing to do that at
    this time?
    A. Yes, ma’am.
    Q. And are you and your wife willing to provide
    permanence for [Kenneth] through a custody order?
    A. Yes, ma’am.
    Q. Now, how, if at all, are you employed, Mr.
    [Phillips]?
    A. I’m employed with Cherry Farm and Seed.
    ....
    Q. And if I may ask, Mr. [Phillips], what is an
    estimate of your annual salary?
    A. It depends year to year. I think last year was fifty-
    six, I think, something like that.
    Q. And since having [Kenneth] in your home, have
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    you and your wife experienced any difficulty in financially
    caring for him?
    A. No.
    Q. Do you anticipate having any financial difficulty
    in continued care of [Kenneth]?
    A. No; no, ma’am.
    ¶ 10         On 21 July 2020, the trial court entered an order pursuant to the 3 June 2020
    permanency planning review hearing in which the trial court found that respondent-
    mother’s “lack of progress and the history of the juvenile’s case” rendered the
    permanent plan of custody to a court-approved caretaker as the most appropriate
    plan for Kenneth. The trial court reasoned that Phillips, Sr.’s and Mrs. Phillips’s
    “commitment to serving as a permanent placement for [Kenneth],” combined with the
    couple’s positive performance as temporary caretakers for the child, supported the
    conclusion that it was appropriate that legal and physical custody of the juvenile
    Kenneth be granted to them on a permanent basis. The trial court noted that the
    Phillips, Sr. household possessed the ability to financially support Kenneth without
    substantial assistance from outside sources, and that respondent-father Keller had
    consented to the joint recommendation of DSS and Kenneth’s guardian ad litem that
    the paternal grandfather and the paternal step-grandmother be granted permanent
    custody. The trial court thereupon awarded legal and physical custody to Phillips, Sr.
    and Mrs. Phillips after concluding that Kenneth’s best interests would be served by
    establishing such a custody arrangement. Because custody to a court-approved
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    caretaker was one of three enumerated primary permanent plans which were
    identified and pursued in the present case, and since custody was being granted to
    court-approved caretakers with a demonstrated ability and willingness to provide a
    safe and stable home for Kenneth, the trial court concluded that a primary permanent
    plan had been achieved through the entry of the 21 July 2020 order. Because a
    primary permanent plan was achieved through the award of legal and physical
    custody to Phillips, Sr. and Mrs. Phillips, further efforts towards the achievement of
    the other two primary permanent plans of reunification and custody to a relative
    became unnecessary. As a result, the 21 July 2020 trial court order effectively
    eliminated reunification as a permanent plan.
    ¶ 11         Respondent-mother appealed the 21 July 2020 order to the Court of Appeals,
    asserting that (1) the trial court had eliminated reunification as a permanent plan
    without making findings that respondent-mother claims were required by N.C.G.S.
    §§ 7B-906.2(b) and (d), and 7B-906.1(d)(3); (2) the trial court had failed to verify that
    the court-approved caretakers Phillips, Sr. and Mrs. Phillips understood the legal
    significance of the juvenile Kenneth’s placement with them as required by N.C.G.S.
    § 7B-906.1(j) before being awarded custody of the child; and (3) the trial court failed
    to make findings required by N.C.G.S. § 7B-906.1(n) before ceasing further
    permanency planning review hearings.
    ¶ 12         In addressing the first issue, the Court of Appeals majority agreed with
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    respondent-mother that the trial court erred by eliminating reunification as a
    primary or secondary permanent plan without first making required findings of fact.
    The majority explained that the trial court’s conclusion following the 3 June 2020
    final permanency planning review hearing that the “primary permanent plan for the
    juvenile . . . ha[d] been achieved through the entry of th[e] [o]rder” was directly
    refuted by the trial court’s findings of fact in the order because the trial court had
    previously established custody to a relative as the “primary permanent plan,” while
    custody to a court-approved caretaker had been designated by the trial court as one
    of the “concurrent permanent plans.” In re K.P., 2021-NCCOA-268, ¶ 20. According
    to the Court of Appeals majority, the primary permanent plan of custody to a relative
    could not have been achieved here by placing Kenneth with Phillips, Sr. and Mrs.
    Phillips because Phillips was not Kenneth’s biological father. Therefore Phillips, Sr.
    and Mrs. Phillips were non-relatives instead of relatives. Id. As a result, the Court of
    Appeals majority opined that, as previously “made clear” by that court, “when a
    district court eliminates reunification as either a primary or secondary permanent
    plan, it must make findings pursuant to both N.C.[G.S.] §§ 7B-906.2(b) and (d).” Id.
    ¶ 18. The lower appellate court majority therefore determined that the trial court’s
    failure to make sufficient findings pursuant to N.C.G.S. § 7B-906.2(d) regarding
    respondent-mother’s “degree of success or failure toward reunification,” and its
    failure to make findings pursuant to N.C.G.S. §§ 7B-906.2(b) and 7B-906.1(d)(3) that
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    “reunification efforts clearly would be unsuccessful or would be inconsistent with the
    juvenile’s health or safety” and whether reunification efforts would be inconsistent
    with the juvenile’s “need for a safe, permanent home within a reasonable period of
    time,” in combination with the trial court’s erroneous declaration that the primary
    permanent plan had been achieved, required that the trial court’s order ceasing
    reunification efforts be vacated and the case be remanded to the trial court for further
    proceedings. Id. ¶ 21.
    ¶ 13         The Court of Appeals majority also agreed with respondent-mother regarding
    her contention that the trial court erred in failing to verify that Phillips, Sr. and Mrs.
    Phillips understood the legal significance of taking permanent custody of Kenneth.
    According to the lower appellate court, the evidence that (1) Phillips, Sr. and Mrs.
    Phillips did an excellent job taking care of Kenneth as the juvenile’s court-appointed
    caretakers; (2) the couple were willing to serve as a permanent placement for the
    child; and (3) the household could financially support Kenneth without substantial
    outside assistance was insufficient to “show the trial court received and considered
    reliable evidence that the guardian or custodian had adequate resources and
    understood the legal significance of custody or guardianship.” Id. ¶ 23 (quoting In re
    J.D.M.-J., 
    260 N.C. App. 56
    , 65 (2018)). The majority vacated the trial court’s order
    on this ground also. Id. ¶ 24.
    ¶ 14         The Court of Appeals dissent disagreed with the majority on these issues. As
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    for the trial court’s elimination of reunification as a permanent plan, the dissenting
    judge noted that N.C.G.S. § 7B-906.2(b) allowed for the cessation of reunification
    efforts if the trial court found either that reunification would be inconsistent with the
    health and safety of the juvenile or that any permanent plan had been achieved,
    regardless of whether the fulfilled permanent plan was labeled “primary” or
    otherwise. Id. ¶ 34 (Jackson, J. concurring in part and dissenting in part). Because a
    permanent plan had been achieved through the entry of the trial court’s June 2020
    order, the dissent further reasoned that the trial court was not required to find that
    reunification would be inconsistent with the health or safety of the juvenile Kenneth.
    Id. ¶¶ 32, 38. In addressing the position of the Court of Appeals majority that the
    trial court erred in failing to make the required statutory findings under N.C.G.S. §
    §§ 7B-906.2(b), 7B-906.2(d), and 7B-906.1(d)(3) regarding the status of reunification,
    the dissent identified and evaluated a number of the trial court’s findings which the
    dissent considered to be sufficient to satisfy the findings mandated by the cited
    statutes. In the dissent’s view, the trial court addressed all of the necessary
    considerations and entered all of the necessary findings to properly eliminate
    reunification as a permanent plan. Id. ¶ 41. Secondly, in responding to the Court of
    Appeals majority decision that the trial court failed to verify that Phillips, Sr. and
    Mrs. Phillips understood the legal significance of Kenneth’s permanent placement in
    their home, the dissent opined that pertinent appellate case law holds that N.C.G.S.
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    § 7B-906.1(j) is satisfied in this regard if the trial court received and considered
    evidence including, “inter alia, testimony from the potential guardian of a desire to
    take guardianship of the child, . . . and testimony from a social worker that the
    potential guardian was willing to assume legal guardianship.” Id. ¶ 44 (quoting In re
    J.D.M.-J., 260 N.C. App. at 68). The dissenting opinion went on to cite transcript
    passages and to summarize other testimony from the 3 June 2020 permanency
    planning review hearing, along with the trial court’s resulting determinations, and
    expressed the belief that there was compliance at the trial court level with N.C.G.S.
    § 7B-906.1(j). Id. ¶¶ 47–48. As for whether the trial court verified that the couple had
    adequate resources to care for Kenneth, the dissent observed that the statute itself
    establishes that “[t]he fact that the prospective custodian or guardian has provided a
    stable placement for the juvenile for at least six consecutive months is evidence that
    the person has adequate resources.” Id. ¶ 49 (quoting N.C.G.S. § 7B-906.1(j) (2019)).
    The dissenting judge recognized that Kenneth had resided in the court-approved
    caretakers’ household of Phillips, Sr. and Mrs. Phillips for seven consecutive months,
    and that Phillips, Sr. offered uncontradicted testimony regarding the household’s
    ability to financially support Kenneth without any difficulty and that the couple had
    been financially caring for the child in this manner. Id. ¶¶ 50, 51.
    ¶ 15         With regard to the third issue, the trial court’s lack of compliance with
    N.C.G.S. § 7B-906.1(n), DSS and Kenneth’s guardian ad litem conceded before the
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    Court of Appeals that the trial court failed to make the findings which were required
    to cease further review or permanency planning hearings under that provision. Given
    the concession made by DSS and the guardian ad litem, the Court of Appeals dissent
    agreed with the majority that the trial court failed to make the required findings
    under N.C.G.S. § 7B-906.1(n) upon the trial court’s determination that further review
    hearings would end in light of the trial court’s 21 July 2020 order. Id. ¶¶ 27 (majority
    opinion), 29 (Jackson, J., concurring in part and dissenting in part). Otherwise, the
    dissent disagreed with the majority’s resolution of this case.
    ¶ 16         Petitioner DSS timely filed notice of appeal based on the divided decision of
    the Court of Appeals.
    II.    Analysis
    ¶ 17         DSS and the guardian ad litem for the juvenile Kenneth challenge the
    determination of the Court of Appeals majority that the trial court’s 21 July 2020
    order failed to contain (1) the findings necessary to eliminate reunification as a
    permanent plan, and (2) the verifications required to award custody of Kenneth to
    persons other than the child’s parents. As a fundamental premise, we stated in In re
    L.R.L.B., 
    377 N.C. 311
    , 2021-NCSC-49, that:
    Our review of a permanency planning 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. The trial court’s
    findings of fact are conclusive on appeal if supported by any
    competent evidence.’ The trial court’s dispositional
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    choices—including the decision to eliminate reunification
    from the permanent plan—are reviewed only for abuse of
    discretion, as those decisions are based upon the trial
    court’s assessment of the child’s best interests.
    2021-NCSC-49, ¶ 11 (extraneity omitted).4 “An abuse of discretion results where the
    court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not
    have been the result of a reasoned decision.” In re T.L.H., 
    368 N.C. 101
    , 107 (2015)
    (extraneity omitted).
    A. Requirements for the Elimination of Reunification as a Permanent Plan
    ¶ 18          N.C.G.S. § 7B-906.2(a) establishes that at any permanency planning hearing
    which is conducted pursuant to N.C.G.S. § 7B-906.1, the trial court shall adopt one
    or more of the permanent plans which are listed in N.C.G.S. § 7B-906.2(a) which the
    trial court finds to be in the juvenile’s best interests. “Reunification” and “custody to
    a relative or other suitable person” are included as eligible permanent plans in the
    statutory provision. N.C.G.S. § 7B-906.2(a) (2021). N.C.G.S. § 7B-906.2(b), in its
    entirety, states:
    At any permanency planning hearing, 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 made
    written findings under G.S. 7B-901(c) or G.S. 7B-
    906.1(d)(3), the permanent plan is or has been achieved in
    4 “At a review or permanency-planning hearing, ‘[t]he [trial] court may consider any
    evidence, including hearsay evidence . . . that the [trial] court finds to be relevant, reliable,
    and necessary to determine the needs of the juvenile and the most appropriate disposition.’ ”
    In re C.C.G., 
    380 N.C. 23
    , 2022-NCSC-3, ¶ 28 (quoting N.C.G.S. § 7B-906.1(c)).
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    accordance with subsection (a1) of this section, or the court
    makes written findings that reunification efforts clearly
    would be unsuccessful or would be inconsistent with the
    juvenile’s health or safety. The finding that reunification
    efforts clearly would be unsuccessful or inconsistent with
    the juvenile’s health or safety may be made at any
    permanency planning hearing, and if made, shall eliminate
    reunification as a plan. Unless permanence has been
    achieved, the court shall order the county department of
    social services to make efforts toward finalizing the
    primary and secondary permanent plans and may specify
    efforts that are reasonable to timely achieve permanence
    for the juvenile.
    N.C.G.S. § 7B-906.2(b) (2021). “It is well settled that where the language of a statute
    is clear and unambiguous, there is no room for judicial construction and the courts
    must give the statute its plain and definite meaning, and are without power to
    interpolate, or superimpose, provisions and limitations not contained therein.” Union
    Carbide Corp. v. Offerman, 
    351 N.C. 310
    , 314 (2000) (extraneity omitted). “ ‘Where a
    statute contains two clauses which prescribe its applicability, and the clauses are
    connected by a disjunctive (e.g. “or”), the application of the statute is not limited to
    cases falling within both clauses, but will apply to cases falling within either of them.”
    Spruill v. Lake Phelps Vol. Fire Dep’t., Inc., 
    351 N.C. 318
    , 323 (2000) (quoting Davis
    v. N.C. Granite Corp., 
    259 N.C. 672
    , 675 (1963)).
    ¶ 19         In a permanency planning order entered by the trial court on 20 December
    2019 pursuant to a permanency planning review hearing held on 20 August 2019, the
    trial court stated that “[t]he permanent plan shall be reunification with a concurrent
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    plan of custody with a relative.” After the permanency planning review hearing
    conducted on 13 January 2020, the trial court entered an order dated 27 March 2020
    and filed on 3 April 2020 in which it found in Finding of Fact 25 that “[t]he respondent
    parents have acted inconsistent with the juvenile’s health and safety” and decreed
    that “[t]he primary permanent plan for the juvenile shall be custody to a relative with
    concurrent permanent plans of custody to a court-approved caretaker and
    reunification.” In a subsequent permanency planning order entered by the trial court
    on 21 July 2020 after it conducted a 3 June 2020 permanency planning review
    hearing in the matter, the trial court made Findings of Fact 25, 26, and 27 as follows:
    25. The respondent parents have acted inconsistent
    with the juveniles’ health and safety.
    26. In accordance with G.S. 7B-906.2, the primary
    permanent plan is custody to a court-approved
    caretaker, and that plan is being achieved with the
    entry of this order.
    27. In accordance with G.S. 7B-906.2, there is no
    further need for a concurrent plan as the primary
    plan of custody to a court-approved caretaker is
    achieved.
    The trial court consequently determined in the same order that “[t]he primary
    permanent plan for the juvenile of custody to a court-approved caretaker has been
    achieved through the entry of this order.”
    ¶ 20         The Court of Appeals majority erroneously decided in the opinion which it
    rendered here that the trial court’s 21 July 2020 permanency planning order did not
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    make proper findings of fact based on competent evidence, pursuant to N.C.G.S. §§
    7B-906.1(d)(3) and 7B-906.2(b), to allow the trial court to remove reunification as a
    concurrent permanent plan and thereby implicitly to cease reunification efforts. In re
    K.P., ¶ 19. Based on this faulty premise, the Court of Appeals went on to conclude
    that the trial court’s 21 July 2020 order “fail[ed] to address the ultimate question of
    whether reunification would be unsuccessful or inconsistent with Kenneth’s safety”
    by “ceas[ing] reunification efforts without making sufficient findings pertinent to
    N.C. Gen. Stat. § 7B-906.2(d) and the ultimate findings required by N.C. Gen. Stat.
    §§ 7B-906.2(b) and 7B-906.1(d)(3).” Id. ¶ 21. We agree with the Court of Appeals
    dissent regarding the proper assessment of the trial court’s pertinent orders relating
    to the identification and prioritization of the permanent plans which were evaluated,
    the sufficiency of the trial court’s findings to support its conclusions concerning the
    trial court’s elections between and among the permanent plans, and the trial court’s
    satisfaction of the mandatory determinations which the cited applicable statutes
    require. The trial court’s findings, conclusions, and supporting rationale were
    properly reached and substantiated in light of the evidence adduced, and in light of
    the statutory law and appellate case law. This includes the determination made by
    the Court of Appeals majority that the trial court erred in the trial court’s view of
    Phillips, Sr. and Mrs. Phillips as Kenneth’s relatives for purposes of the fulfillment
    of the primary permanent plan of “custody to a relative” identified in the trial court’s
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    order dated 27 March 2020 and filed on 3 April 2020, even though the same result
    was realized when the couple received legal and physical custody of Kenneth
    pursuant to the trial court’s recognition of their status as “court-approved
    caretaker[s]” in the trial court’s 21 July 2020 order which designated “custody to a
    court-approved caretaker” as the primary permanent plan for the juvenile Kenneth.
    ¶ 21          In the instant case, there is competent evidence in the record to support the
    trial court’s findings of fact, and in turn there are sufficient findings of fact to support
    the conclusions of law, which undergird the trial court’s determinations in the orders
    which it issued to eliminate reunification as a permanent plan. These findings,
    conclusions, and ultimate determinations reached by the trial court on the matter of
    the elimination of reunification as a permanent plan in this case satisfy the statutory
    requirements imposed upon a trial court under N.C.G.S. § 7B-906.1(d)(3) to make
    relevant written findings of fact as to whether efforts to reunite the juvenile Kenneth
    with either parent clearly would be inconsistent with the juvenile’s health or safety
    and N.C.G.S. § 7B-906.2(b) to make written findings that reunification efforts clearly
    would be inconsistent with the juvenile’s health or safety which therefore would
    eliminate reunification as a plan. Under the circumstances presented in this case, the
    trial court was not required to make further findings, conclusions, and ultimate
    determinations regarding the elimination of reunification. We do not discern any
    abuse by the trial court of its discretion to arrive at the findings, conclusions, and
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    ultimate determinations which the trial court reached, in light of the deference given
    to the trial court concerning its assessment of the child’s best interests. Additionally,
    in light of standard rules of statutory construction, the use of the disjunctive term
    “or” in N.C.G.S. § 7B-906.2(b) demonstrates that the satisfaction of any one of the
    three delineated circumstances which are identified in the statute, even to the
    exclusion of the remaining two circumstances, relieves the trial court of any further
    obligation to maintain reunification as a permanent plan. Since the trial court
    properly determined in its 21 July 2020 order that the revised primary permanent
    plan of custody to a court-approved caretaker had been achieved, and the trial court
    had made written findings that reunification efforts clearly would be inconsistent
    with the juvenile’s health or safety, then the trial court was empowered to properly
    eliminate reunification as a primary or secondary plan because the trial court
    satisfied all of these components as found in N.C.G.S. § 7B-906.2(b).
    ¶ 22         In light of all of these aspects, we reverse the Court of Appeals’ determination
    that the trial court erred in ceasing reunification efforts and ultimately eliminating
    reunification as a primary or secondary permanent plan.
    B. Requirements for the Verification of Non-Parents to be Custodians
    ¶ 23         N.C.G.S. § 7B-906.1(a) states, in pertinent part, that “[t]he court shall conduct
    a . . . permanency planning hearing within 90 days from the date of the initial
    dispositional hearing [and] permanency planning hearings shall be held at least every
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    six months thereafter.” N.C.G.S. § 7B-906.1(a) (2021). Pursuant to the trial court’s
    execution of a permanency planning hearing, N.C.G.S. § 7B-906.1(j) provides, in
    pertinent part:
    If the court determines that the juvenile shall be
    placed in the custody of an individual other than a parent
    . . . , the court shall verify that the person receiving custody
    . . . understands the legal significance of the placement . . .
    and will have adequate resources to care appropriately for
    the juvenile. The fact that the prospective custodian . . . has
    provided a stable placement for the juvenile for at least six
    consecutive months is evidence that the person has
    adequate resources.
    N.C.G.S. § 7B-906.1(j). While this Court has never addressed the minimum
    evidentiary requirements which are sufficient to support a trial court’s verification
    that a non-parent “understands the legal significance of the placement” of the
    juvenile in the non-parent’s custody and that the non-parent “will have adequate
    resources to care appropriately for the juvenile,” the Court of Appeals provided
    instructive guidance on the matter in the opinion which it rendered in In re J.D.M.-
    J., where the lower appellate court opined:
    N.C. Gen. Stat. § 7B-906.1(j) does not require the trial court
    to make any specific findings in order to make the
    verification. However, we have made clear that the record
    must show the trial court received and considered reliable
    evidence that the guardian or custodian had adequate
    resources and understood the legal significance of custody
    or guardianship.
    260 N.C. App. at 65 (extraneity omitted).
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    Opinion of the Court
    ¶ 24         During the course of conducting permanency planning review hearings in this
    case, the trial court determined that the juvenile Kenneth should be placed in the
    custody of an individual other than a parent. The tribunal placed the child in the
    custody of Phillips, Sr. and his wife Mrs. Phillips. The Court of Appeals majority
    concluded that the trial court “failed to fulfill its statutory obligation to verify that
    Mr. Phillips, Sr. and Mrs. Phillips (non-parents and non-relatives) understood the
    legal significance of their appointment as Kenneth’s custodians,” In re K.P., ¶ 22, or
    “that the couple had the adequate resources to care appropriately for the juvenile,”
    id. ¶ 23. On this issue of verification, the Court of Appeals majority ultimately decided
    that “neither the record [as] a whole nor the district court’s findings of fact support
    the conclusion that Kenneth’s custodians understood the legal significance of the
    placement or that they would have the adequate resources to care appropriately for
    the juvenile.” Id. ¶ 24. Conversely, the dissenting opinion of the Court of Appeals took
    the position on verification that “testimony from the social worker and Mr. Phillips
    Sr. demonstrates that the couple understood the legal significance of the
    appointment, and Kenneth’s stable placement with Mr. Phillips Sr. and Mrs. Phillips
    for seven consecutive months demonstrates the couple had adequate resources to care
    for Kenneth.” Id. ¶ 42 (Jackson, J., concurring in part and dissenting in part).
    ¶ 25         While the majority view and the dissenting view of the lower appellate court
    reach opposite outcomes on the issue of verification in the present case, both of them
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    quote these cited passages from the transcript as dispositive of their respective
    opinions, with a social worker having testified for DSS as follows:
    Q. And have [Mr. Phillips, Sr., and Mrs. Phillips]
    expressed a desire to accept legal custody of [Kenneth]?
    A. Yes, they have.
    Phillips, Sr. offered the following testimony:
    Q. And do you recall having conversations with the
    Department regarding taking custody of [Kenneth]?
    A. Yes, ma’am.
    Q. And are you and your wife willing to do that at
    this time?
    A. Yes, ma’am.
    Q. And are you and your wife willing to provide
    permanence for [Kenneth] through a custody order?
    A. Yes, ma’am
    In addition, the Court of Appeals dissent noted this permanency planning review
    hearing testimony from Phillips, Sr.:
    Q. And if I may ask, Mr. [Phillips, Sr.], what is an
    estimate of your annual salary?
    A. It depends year to year. I think last year was
    fifty-six, I think, something like that.
    Q. And since having [Kenneth] in your home, have
    you and your wife experienced any difficulty in financially
    caring for him?
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    Opinion of the Court
    A. No.
    Q. Do you anticipate having any financial difficulty
    in continued care of [Kenneth]?
    A. No; no, ma’am.
    Q. And have you been caring for [Kenneth] without
    any substantial financial contributions from the parents?
    A. No.
    Q. No contributions?
    A. No.
    ¶ 26         We agree with the Court of Appeals dissent on this matter of verification,
    conclude that the Court of Appeals majority erroneously decided this issue, and
    therefore reject the majority’s conclusion regarding verification. Despite the lack of
    any specific findings which are expressly identified in N.C.G.S. § 7B-906.1(j) as being
    required to authorize a trial court to properly establish verification, we can determine
    from the record of the 3 June 2020 permanency planning review hearing that the trial
    court sufficiently verified that the court-approved caretakers Phillips, Sr. and Mrs.
    Phillips, in receiving legal and physical custody of the juvenile Kenneth, understood
    the legal significance of the placement and had adequate resources to care
    appropriately for the child. The combined testimony rendered by the DSS social
    worker and Phillips, Sr. amply support this determination. Similarly, the testimony
    given at the hearing by Phillips, Sr. with regard to the financial stability, resources,
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    Opinion of the Court
    independence, and comfort level of the court-approved caretakers, when considered
    along with the undisputed evidence which showed that the seven consecutive months
    of Kenneth’s placement with Phillips, Sr. and Mrs. Phillips exceeded the span of six
    consecutive months of such placement that N.C.G.S. § 7B-906.1(j) expressly
    recognizes as evidence that the prospective custodian has adequate resources,
    satisfactorily showed that the couple have adequate resources to care appropriately
    for the juvenile.
    ¶ 27         Given these circumstances, we reverse the decision of the Court of Appeals that
    the trial court erred by failing to fulfill the trial court’s statutory obligations
    established by N.C.G.S. § 7B-906.1(j) concerning verification.
    III.    Conclusion
    ¶ 28         Petitioner appeals to this Court from the decision of the Court of Appeals on
    the basis of a dissent. For the reasons stated noted in the dissenting opinion, we
    reverse the decision of that court as to the appealable issues of right, namely, the
    determinations by the Court of Appeals that the trial court erred (1) in ceasing
    reunification efforts and ultimately eliminating reunification as a primary or
    secondary plan, and (2) by failing to fulfill its statutory obligations under N.C.G.S. §
    7B-906.1(j) concerning verification. The remaining issue addressed by the Court of
    Appeals, namely, that the trial court failed to comply with the requirement to make
    appropriate findings of fact pursuant to N.C.G.S. § 7B-906.1(n) before ordering the
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    Opinion of the Court
    cessation of further reviews in this case, is not properly before this Court and the
    decision by the Court of Appeals on that issue remains undisturbed. This case is
    remanded to the Court of Appeals for further remand to the District Court, Hyde
    County, for further proceedings not inconsistent with this opinion.
    REVERSED IN PART AND REMANDED.
    

Document Info

Docket Number: 251A21

Filed Date: 12/16/2022

Precedential Status: Precedential

Modified Date: 12/16/2022