In re: D.S.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-104
Filed: 3 July 2018
Mecklenburg County, No. 15 JA 612
IN THE MATTER OF: D.S.
Appeal by respondent-father from order entered 2 November 2017 by Judge
Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals
21 June 2018.
Associate County Attorney Marc S. Gentile for petitioner-appellee Mecklenburg
County Department of Social Services, Youth and Family Services Division.
David A. Perez for respondent-appellant father.
Stephen M. Schoeberle for guardian ad litem.
TYSON, Judge.
Respondent-father appeals from an order appointing M.G. (“Ms. Green”), an
unrelated individual, as guardian for his minor child, D.S. (“Diana”). The trial court
granted guardianship of Diana to a non-relative without explaining why it declined
to give placement preference to Diana’s paternal grandmother. The court’s order is
vacated and remanded for a new permanency planning hearing.
I. Background
This case is before the Court for the second time. In re D.S., ___ N.C. App. ___,
803 S.E.2d 873, 2017 WL 41269647 (2017) (unpublished). The Mecklenburg County
IN RE: D.S.
Opinion of the Court
Department of Social Services, Youth and Family Services Division (“YFS”),
instituted the underlying juvenile case on 9 November 2015, when it obtained non-
secure custody of Diana and filed a petition alleging she was a neglected and
dependent juvenile. The trial court subsequently adjudicated Diana to be a neglected
and dependent juvenile, continued custody of Diana with YFS, and set the primary
permanent plan for Diana as reunification with a parent and the secondary
permanent plan as guardianship.
In its 20 December 2016 permanency planning and guardianship order, the
trial court set the sole permanent plan for Diana as guardianship and appointed Ms.
Green as her guardian. Respondent appealed, and this Court concluded the trial
court’s finding that Ms. Green has adequate resources to care appropriately for Diana
was not supported by evidence at the permanency planning hearing. Id. This Court
vacated the trial court’s order and remanded the case for further proceedings. Id.The trial court conducted a hearing after remand on 16 October 2017. The
court limited the hearing to the issue of whether Ms. Green had the financial
resources to appropriately care for Diana. On 2 November 2017, the court entered its
order from the hearing on remand, which it titled “Supplementary Order.” The trial
court incorporated, in its entirety, the 20 December 2016 permanency planning and
guardianship order into the Supplementary Order. The court also made numerous
findings of fact regarding Ms. Green’s financial ability to care for Diana, and made
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ultimate findings of fact that Ms. Green was financially able to appropriately care for
Diana and understood the legal significance of being appointed as her guardian. The
court ordered that the permanent plan for Diana would be guardianship, appointed
Ms. Green to be Diana’s guardian, re-adopted a detailed visitation schedule for
Diana’s parents and her paternal grandmother, and relieved the parents’ attorneys
of further responsibility in this matter. Respondent filed timely notice of appeal from
the trial court’s order.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a) (2017).
III. Issue
Respondent asserts the trial court erred in appointing Ms. Green, a non-
relative caretaker of Diana, as Diana’s guardian without first finding and showing
that it properly considered and rejected her paternal grandmother as a placement.
We agree.
IV. Standard of Review
Our review of a permanency planning order entered pursuant to N.C. Gen.
Stat. § 7B-906.1 “is limited to whether there is competent evidence in the record to
support the findings and whether the findings support the conclusions of law.” In re
J.H., 244 N.C. App. 255, 268, 780 S.E.2d 228, 238 (2015) (citation omitted).
V. Analysis
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Opinion of the Court
A. N.C. Gen. Stat. § 7B-903(a1)
In placing a juvenile in out-of-home care under this section,
the court shall first consider whether a relative of the
juvenile is willing and able to provide proper care and
supervision of the juvenile in a safe home. If the court finds
that the relative is willing and able to provide proper care
and supervision in a safe home, then the court shall order
placement of the juvenile with the relative unless the court
finds that the placement is contrary to the best interests of
the juvenile.
N.C. Gen. Stat. § 7B-903(a1) (2017) (emphasis supplied).
The use of the word “shall” in the statute shows the General Assembly’s intent
for this requirement to be mandatory. State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d
752, 757 (1979) (citation omitted). This Court has held that before placing a juvenile
in an out-of-home placement at a permanency planning hearing, “the trial court was
required to first consider placing [the juvenile] with [her relatives] unless it found
that such a placement was not in [the juvenile’s] best interests.” In re L.L., 172 N.C.
App. 689, 703, 616 S.E.2d 392, 400 (2005) (construing earlier version of N.C. Gen.
Stat. § 7B–903 and precursor statute to N.C. Gen. Stat. § 7B-906.1 (2017) governing
permanency planning hearings, N.C. Gen. Stat. § 7B-906). “Failure to make specific
findings of fact explaining the placement with the relative is not in the juvenile’s best
interest will result in remand.” In re A.S., 203 N.C. App. 140, 141-42, 693 S.E.2d 659,
660 (2010) (citation omitted).
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In re L.L. incorporated the requirement set forth in N.C. Gen. Stat. § 7B-903,
that a trial court must and “shall” first give consideration to placement of a juvenile
with relatives, before it may order the juvenile into placement with a non-relative by
a permanency planning order entered pursuant to N.C. Gen. Stat. § 7B-906 (2003).
Section 7B-906 has been repealed and replaced by N.C. Gen. Stat. § 7B-906.1.
See 2013 N.C. Sess. Laws 129, §§ 25-26. Subsection 7B-906(d) addressed in L.L.
contains identical mandatory language authorizing dispositions under N.C. Gen.
Stat. § 7B-903, as that in current subsection 7B-906.1(i). L.L. is still controlling on
this issue. Compare N.C. Gen. Stat. § 7B-906(d) (2003) with N.C. Gen Stat. § 7B-
906.1(i) (2017).
B. YFS’ Arguments
YFS argues: (1) Respondent lacks standing to raise this argument; (2)
Respondent waived the issue by not raising it in his prior appeal; (3) the issue is
mooted due to a subsequent guardianship review order; and, (4) there are sufficient
facts in the record to conclude that the trial court properly considered placement of
Diana with her paternal grandmother and concluded such a placement was not in
Diana’s best interest. We reject these arguments in turn.
1. Standing
YFS cites to this Court’s opinion in In re C.A.D., ___ N.C. App. ___, 786 S.E.2d
745, 752 (2016) to support its argument that Respondent lacks standing to challenge
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the trial court’s failure to properly consider Diana’s own grandmother as a placement.
In C.A.D., the respondent-mother argued the trial court erred in ceasing reunification
efforts in a permanency planning order, because her children should have been placed
with the maternal grandparents. Id. at ___, 786 S.E.2d at 751. We rejected this
argument, because the respondent-mother was not aggrieved by the trial court’s
conclusion, holding:
[T]he maternal grandparents have not appealed the trial
court’s permanency plan. They do not complain of the
court’s findings of fact or conclusions of law, and they do
not complain they were injuriously affected by the trial
court’s decision to pursue adoption. Respondent cannot
claim an injury on their behalf. Therefore, she has no
standing to raise [this] claim.
Id. at ___, 786 S.E.2d at 752.
In re C.A.D. is distinguishable from the facts before us. In C.A.D., the maternal
grandparents were former custodians of at least one of the children in the juvenile
case. See id. at ___, 786 S.E.2d at 747. The maternal grandparents in C.A.D. could
have appealed from the order at issue, but did not. As a result, the respondent-
mother lacked standing to present an argument directly affecting the rights of the
maternal grandparents. Here, the paternal grandmother was never a party in the
juvenile case and could not have independently appealed from the court’s order to
protect her own statutory rights. Respondent is not attempting to present a grievance
of the paternal grandmother, as in C.A.D., but rather asserting his own interest, as
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Diana’s father, to have the trial court consider a potentially viable relative placement
for his daughter before granting guardianship to a non-relative. Respondent has
standing to raise this issue on appeal.
2. Waiver
YFS’ argument that Respondent waived this issue by not raising it in his prior
appeal is similarly misplaced. When an order of a lower court is vacated, those
portions that are vacated become void and of no effect. Friend-Novorska v. Novorska,
143 N.C. App. 387, 393-94, 545 S.E.2d 788, 793, aff’d per curiam, 354 N.C. 564, 556
S.E.2d 294 (2001).
This Court did not limit its holding in the prior appeal to the trial court’s
guardianship award, but vacated the entire permanency planning order and
remanded the case to the trial court for further proceedings. See In re D.S., ___ N.C.
App. ___, 803 S.E.2d 873. The 20 December 2016 permanency planning and
guardianship order was void and of no effect. The posture of the case returned to YSF
having custody of Diana under prior review and permanency planning orders. The
court’s new order re-incorporated the findings and conclusions of its 20 December
2016 permanency planning and guardianship order into its new “Supplementary
Order,” wherein it also made new findings and conclusions regarding Ms. Green’s
finances. The trial court’s re-incorporation of the findings of fact and conclusions of
law from the voided order, together with the combination of the two documents,
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constitutes a single new order that was entered after remand, from which Respondent
could raise any argument on appeal. YFS’ argument is overruled.
3. Mootness
YFS and the guardian ad litem also argue a subsequent guardianship review
order, entered 30 November 2017, which ceased all visitation and contact between
Diana and the paternal grandmother makes Respondent’s arguments moot. We
disagree. This order does not moot the issue at hand.
“A case is ‘moot’ when a determination is sought on a
matter which, when rendered, cannot have any practical
effect on the existing controversy.” Roberts v. Madison
County Realtors Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d
783, 787 (1996). Further, “[w]henever, during the course
of litigation it develops that the relief sought has been
granted or that the questions originally in controversy
between the parties are no longer at issue, the case should
be dismissed, for courts will not entertain or proceed with
a cause merely to determine abstract propositions of law.”
Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693,
697, 443 S.E.2d 127, 131, disc. review denied, 337 N.C. 691,
448 S.E.2d 520 (1994) (internal quotation marks omitted).
In re Stratton, 159 N.C. App. 461, 463, 583 S.E.2d 323, 324, appeal dismissed and
disc. review denied, 357 N.C. 506, 588 S.E.2d 472 (2003). Here, the question of
whether the paternal grandmother should have been given priority placement
consideration, as compelled by the statute, over a non-relative has never been
addressed by the trial court and, if addressed, may have a practical effect on the case.
Although the facts relied upon by the trial court to cease the paternal grandmother’s
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visitation may be relevant when this issue is before the trial court, that is an
evidentiary question which does not render the matter moot. This matter is properly
before us.
4. Best Interest of the Juvenile
YFS asserts there are sufficient facts in the record for this Court to determine
that the trial court properly considered placement of Diana with the paternal
grandmother and concluded the placement was not in Diana’s best interest. In
support of this argument, YFS cites generally to prior hearings in the case, YFS’ prior
interactions with the paternal grandmother, and Diana’s bond with Ms. Green.
Both YFS and Respondent are free to put on evidence before the trial court to
resolve this issue. The trial court, however, has never made any findings of fact or
conclusions of law resolving this issue, which it is statutorily required to do before
placing Diana with a non-relative. See In re A.S., 203 N.C. App. at 141-44, 693 S.E.2d
at 660-62. YFS apparently expects this Court to resolve the factual issue in the first
instance, which is beyond the scope of our appellate review. See In re J.H., 244 N.C.
App. at 268, 780 S.E.2d at 238.
Here, the trial court specifically found that both parents opposed appointing a
non-relative guardian for Diana and wished for Diana to be placed with her paternal
grandmother if the court determined she could not return to their home. Neither the
“Supplementary Order” nor the incorporated 20 December 2016 permanency
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planning and guardianship order indicate the trial court considered the paternal
grandmother as a placement option for Diana.
The trial court relied upon a pre-typed “check-the box” and “fill-in-the-blank”
form for the 20 December 2016 permanency planning and guardianship order that
does not appear to have a section addressing the statutory requirement that the court
must give first consideration to relatives when ordering a juvenile into an out-of-home
placement. The court’s failure to make any findings or conclusions resolving these
issues requires remand. In re A.S., 203 N.C. App. at 141-44, 693 S.E.2d at 660-62.
The record before this Court suggests that more than eighteen months have
passed since the last full permanency planning hearing in this case. The trial court’s
order is vacated and this matter is remanded for a new permanency planning hearing.
See N.C. Gen. Stat. § 7B-906.1(a).
Because the order is vacated, it is unnecessary to address the merits of
Respondent’s second argument that the trial court erred by not stating in its
guardianship order what rights and responsibilities remained with respondent. See
N.C. Gen. Stat. § 7B-906.1(e)(2).
VI. Conclusion
The trial court’s order is vacated and this matter is remanded for a new
permanency planning hearing in conformity with the mandates of the statute. It is
so ordered.
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IN RE: D.S.
Opinion of the Court
VACATED AND REMANDED.
Judges DIETZ and MURPHY concur.
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