In re J.M. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-24
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
IN THE MATTER OF: Iredell County
Nos. 10 JA 208 & 213
J.M. & J.M.,
Minor children.
Appeal by respondent-mother and respondent-father from
orders entered 1 July 2013 and 16 September 2013 by Judge Edward
L. Hedrick, IV in District Court, Iredell County. Heard in the
Court of Appeals 11 June 2014.
Lauren Vaughan, for petitioner-appellee Iredell County
Department of Social Services.
Assistant Appellate Defender J. Lee Gilliam, for
respondent-appellant-mother.
W. Michael Spivey, for respondent-appellant-father.
Melanie Stewart Cranford, for guardian ad litem.
STROUD, Judge.
Respondents appeal from a permanency planning review order
awarding guardianship of their children Jack1 and Jim to the
1
Pseudonyms are used to protect the identity of the juveniles.
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Keatings2 and an order denying their motion to amend a prior
order and motion for a new trial. For the following reasons, we
affirm.
I. Background
On 1 November 2010, the Iredell County Department of Social
Services (“DSS”) filed a petition alleging that ten-month-old
Jack was an abused and neglected juvenile. The petition alleged
that while respondents
[w]ere traveling together with the minor
child in the vehicle back from Yadkin
County. The Respondent Father forced the
Respondent Mother out of the vehicle on the
side of the road at the county line after
they had a domestic dispute during which she
sustained a head injury. The Respondent
Mother indicated that the Respondent Father
was intoxicated and that he left with the
minor child in the vehicle. The Respondent
Mother indicated that the Respondent Father
would not give the child to her. The
Respondent Mother went to a stranger’s
residence where they called 911 and she
reported the incident to law enforcement.
She subsequently went to the maternal
grandmother’s residence.
The petition further alleged that
[e]arly in the morning of 10/29/10, the
Iredell County Sheriff’s Department . . .
found the ten-month-old minor child, Jack .
. ., lying in the backseat of a vehicle
asleep outside the residence. Deputies also
found marijuana sitting in the front seat of
2
The guardians will also be referred to by a pseudonym.
-3-
the same vehicle.
. . . .
The Department has had ongoing involvement
with this family as well as the extended
family. The Department previously received
a report on 3/16/10 regarding domestic
violence between the parents in the presence
of the minor child. The family was found in
need of services. Another report was
received on 5/25/10 alleging the minor child
had a burn mark on his forehead caused by a
blunt. During this investigation, law
enforcement confirmed that the Respondent
Father drove the Respondent Mother and the
minor child while intoxicated. Intensive
Family Preservation was placed in the
family’s home twice, and the parents fired
the preservation worker twice and told her
not to return to their home. The Respondent
Father did complete an intake assessment
with New River Behavioral Healthcare but
failed to follow through with any of the
recommendations and all drug screens he
submitted to for the Department were
positive. He admitted to smoking marijuana
daily since adolescence and indicated that
he was not going to change. The Respondent
Mother admits that there is ongoing domestic
violence with the Respondent Father, that
the Respondent Father drives the family
around while under the influence and that
the Respondent Mother drives with the minor
child in the vehicle despite her lack of a
driver’s license. Despite her recognition
of these issues, the Respondent Mother
continues to enable the Respondent Father’s
behavior and does not protect the minor
child.
Also, on 1 November 2010, DSS obtained nonsecure custody of
Jack. On 15 February 2011, the trial court entered an
adjudication order adjudicating Jack neglected based upon the
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consent of respondents. On 27 June 2011, the trial court
entered a disposition order continuing the custody of Jack with
DSS and placing him with the Keating’s family.
On 17 September 2011, respondent-mother gave birth to Jim.
On 21 December 2011, DSS filed a petition alleging that he was a
neglected and dependent juvenile. The petition was filed in
response to physical altercations between respondents, as well
as respondent-father’s continued substance abuse; this same
date, DSS took nonsecure custody of Jim. Jim was also placed
with the Keatings. On 28 February 2012, the trial court entered
an order adjudicating Jim neglected. On 16 August 2012, the
trial court entered a disposition order retaining custody with
DSS.
On 1 July 2013, the trial court entered a permanency
planning review order ordering legal guardianship of the
children be with the Keatings. On 8 August 2013, respondents
filed a “MOTION FOR ADDITIONAL FINDINGS & NEW TRIAL[.]” On 16
September 2013, the trial court entered an order denying the
respondents’ motion. Respondents appeal.
II. Guardianship Verification
Respondent-father contends that
the trial court erred when it failed to
follow the statutory mandate of N.C.G.S. §
-5-
7B-907(f) and N.C.G.S. § 7B-600(c) by
failing to verify at the time guardians were
appointed that they understood the legal
significance of guardianship and had
sufficient financial resources to provide
adequate care for respondent father’s minor
child.
(Original in all caps.) Respondent-father concedes,
The statutes do not specify the manner
or extent of the inquiry the trial court
must make to verify that the guardians
understand the legal significance of the
appointment and that they have adequate
resources to care appropriately for the
juvenile.
This court has held that the trial
court is not required to make any specific
findings in order to make the verification.
. . . In an unpublished opinion, one panel
of this Court has held that the trial court
is not required to conduct an inquiry of the
proposed guardian at the hearing during
which guardianship is awarded[,]
but ultimately argues without legal authority that
[o]ur statutes place the burden on the trial
court of verifying that the guardians fully
understand the legal significance of the
responsibility they are undertaking, and
have adequate resources to appropriately
provide for the child. The relevant time to
make this determination is at or near the
time when a guardian is appointed. Here,
the trial court relied upon a determination
made a year earlier that the proposed
guardians had adequate resources to provide
appropriate care for the children.
Obviously financial circumstances can
undergo radical changes over the course of a
year. A statement by the social worker that
she did not know of any changes is not the
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same as testimony that an inquiry was
actually made into the current financial
status of the proposed guardians.
Respondent-mother makes substantially the same argument
contending that any verification previously done by the trial
court was “stale.”
North Carolina General Statute § 7B-600(c) states that
(i)f the court appoints an individual
guardian of the person pursuant to this
section, the court shall 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) (2011). North Carolina General
Statute § 7B-907(f) states that
[i]f the court determines that the juvenile
shall be placed in the custody of an
individual other than the parents or
appoints an individual guardian of the
person pursuant to G.S. 7B-600, the court
shall verify that the person receiving
custody or being appointed as guardian of
the juvenile understands the legal
significance of the placement or appointment
and will have adequate resources to care
appropriately for the juvenile.
N.C. Gen. Stat. § 7B-907(f) (2011).3
3
North Carolina General Statute § 7B-907 was “[r]epealed by
Session Laws 2013-129, s. 25, effective October 1, 2013, and
applicable to actions filed or pending on or after that date.”
N.C. Gen. Stat. § 7B-907 (2013). Because the applicable order
here was entered on 1 July 2013, North Carolina General Statute
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This Court is not required to “make any specific findings
in order to make the verification” and may use prior evidence
such as a DSS “home study” in complying with the requirements
for verification. In re J.E., 182 N.C. App. 612, 616-17, 643
S.E.2d 70, 73, disc. review denied, 361 N.C. 427, 648 S.E.2d 504(2007).
The trial court had previously found in an August 2012 order
entered after a May 2012 hearing:
30. That Ms. [Keatings] is a teacher’s
assistant. Mr. [Keatings] runs a
construction business and just opened a
tire shop.
31. That the Court has verified that . . .
[the Keatings] understand the legal
significance of the appointment of
guardianship and have adequate
resources to care appropriately for the
minor child and have provided for the
minor child and his brother, Jack,
since coming into care, without
assistance until March of 2012, when
they became licensed foster parents.
They have received WIC and Medicaid and
the parents have provided a bag of
diapers, several sets of clothes, some
juice and milk. The [Keatings] intend
to add a room to their home with
payments they will receive. They have
been able to adequately raise their own
two children, an 18-year-old son and
11-year-old daughter.
§ 7B-907(f) still applies.
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Then, in May of 2013, at the permanency planning review
hearing, Ms. Melissa Price, a DSS social worker testified:
Q. Now, I know that we’ve had the
[Keatings] here previously and completed the
inquiry regarding guardianship on previous
occasions, that guardianship has been
recommended as a plan. Have you spoken with
the [Keatings] leading up to today’s court
date to make them aware of your
recommendation and to talk to them again
about their amenability to take on
guardianship of these two boys?
A. Yes, I have. The [Keatings] are in
constant contact with me about the children,
about how they are doing, about their desire
for guardianship, yes.
Q. Okay. And did you talk to them
about whether anything had changed with
regard to their situation and their
willingness to be guardians for these
children?
A. Nothing has changed, they are --
they are still very willing.
Q. Okay. And to your knowledge, has
anything changed with regard to their
situation that would affect their ability to
provide for these children’s needs –-
A. Not at all, no.
Q. -- in the guardian role?
A. Not at all.
In the permanency planning review order based upon the May 2013
hearing, the trial court found:
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23. That guardianship with the [Keatings]
should be established today.
24. That the Court made a guardianship
inquiry of the [Keatings] on May 23,
2012 per North Carolina General Statute
7B-600 and verified that they
understood the appointment of
guardianship, have adequate resources
to provide for the minor children and
have a consistent willingness and
ability to serve in that role.
We therefore conclude that the trial court complied with the
requirements of North Carolina General Statutes §§ 7B–600(c) and
7B–907(f). See N.C. Gen. Stat. §§ 7B-600(c), - 907(f). This
argument is overruled.
III. Guardian Ad Litem
On 3 November 2010, the trial court ordered respondent-
mother be appointed a guardian ad litem (“GAL”) “in response to
the request made by . . . Respondent Parent’s attorney[.]” On 1
February 2012, the trial court entered an order stating
respondent-mother’s GAL was relieved because respondent mother’s
attorney “believes a GAL for her is not needed.” Respondent-
mother challenges the trial court’s release of her GAL.
Respondent-mother frames her argument as one judge “overruling”
another in the release of her GAL and argues that a “substantial
change of circumstances” is required in order for her GAL to be
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released, but such arguments are not persuasive in light of the
applicable law.
Pursuant to North Carolina General Statute § 7B-602(c),
On motion of any party or on the
court’s own motion, the court may appoint a
guardian ad litem for a parent in accordance
with G.S. 1A–1, Rule 17, if the court
determines that there is a reasonable basis
to believe that the parent is incompetent or
has diminished capacity and cannot
adequately act in his or her own interest.
The parent’s counsel shall not be appointed
to serve as the guardian ad litem.
N.C. Gen. Stat. § 7B–602(c) (2011).4 “Because N.C.G.S. § 7B-
602(c) employs the term may, a trial court’s action pursuant to
this statute is discretionary, and our review is limited to a
determination of whether the trial court abused its discretion.
A trial court abuses its discretion when its decision is
manifestly unsupported by reason.” In re M.H.B., 192 N.C. App.
258, 261, 664 S.E.2d 583, 585 (2008) (citations and quotation
marks omitted). In considering another statute, in In re
P.D.R., this Court stated that “throughout the neglect and
dependency and termination proceedings” a GAL previously
appointed must remain “as long as the conditions that
4
“Session Laws 2013-129, s. 41, made the amendment to this
section by Session Laws 2013-129, s. 17, applicable to actions
filed or pending on or after October 1, 2013[,]” therefore, the
amendment is not applicable to this case.
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necessitated the appointment of a GAL still exist[.]” ___ N.C.
App. ___, ___, 737 S.E.2d 152, 159 (2012).
After reviewing the record, we are satisfied that the trial
court did not abuse its discretion in releasing respondent-
mother’s GAL. The trial court found in an unchallenged 7
September 2011 order that “Respondent Mother made an appointment
for a psychological evaluation with New River. New River
conducted an intake assessment and determined that a
psychological evaluation was not necessary, but that Respondent
Mother would benefit from individual counseling related to her
environment and educational deficiencies.” Furthermore, both
the appointment and the dismissal of a GAL were made at the
request of respondent-mother’s own attorney. This argument is
overruled.
IV. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges CALABRIA and DAVIS concur.
Report per Rule 30(e).