                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA15-579

                                     Filed: 1 December 2015

Chatham County, No. 14 JA 20

IN THE MATTER OF: J.H.


      Appeal by respondent-mother from order entered on 23 February 2015 by

Judge M. Patricia DeVine in District Court, Chatham County. Heard in the Court of

Appeals on 28 October 2015.


      Holcomb & Cabe, LLP, by Samantha H. Cabe, for petitioner-appellee Chatham
      County Department of Social Services and Poyner Spruill LLP, by J.M.
      Durnovich, for guardian ad litem.

      Sydney Batch, for respondent-appellant.


      STROUD, Judge.


      Respondent-mother appeals from a permanency planning order which

established a permanent plan for guardianship for her son J.H. (“James”)1 and

appointed his maternal grandparents as guardians. Respondent-mother argues that

the trial court (1) lacked jurisdiction to enter orders affecting James’s custody under

the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”); (2) erred

in relying on written reports that had not been formally tendered and admitted into

evidence; (3) failed to verify that James’s grandparents understood the legal



      1   We use this pseudonym to protect the juvenile’s identity.
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                                  Opinion of the Court



significance of guardianship and had adequate resources to care for James; (4) erred

in concluding that it was impossible to return James to respondent-mother within six

months and that further reunification efforts would be futile; (5) erred in concluding

that it was in James’s best interests for respondent-mother to have minimal visitation

and entering a visitation plan that failed to set out the duration of each visitation;

and (6) erred in waiving further review hearings. We vacate and remand for further

proceedings. We also deny the motion to dismiss by the guardian ad litem (“GAL”).

                                 I.     Background

      In April 2013, James was born in North Carolina. From April 2013 to late

November 2013, James and respondent-mother lived in North Carolina. Respondent-

father resides in North Carolina. On 22 November 2013, respondent-mother took

James with her to Texas. On 13 January 2014, after a physical altercation in Texas

with her ex-husband (“Mr. J.”), respondent-mother left James with Mr. J. without

baby supplies. On or about 29 January 2014, a Texas court ordered that respondent-

mother have temporary sole custody of James and that respondent-father have no

contact with James because he had not yet established paternity.

      On or about 20 February 2014, respondent-mother and James returned to

North Carolina. On 7 March 2014, Chatham County Department of Social Services

(“DSS”) filed a juvenile petition alleging that James was neglected and dependent.

DSS alleged that respondent-father had been recently charged with assaulting



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respondent-mother and that he “was about to hit [James but] Respondent mother

[had] intervened.” DSS also alleged that respondent-mother had a “long history” of

untreated substance abuse as well as a history with Child Protective Services (“CPS”)

in Alamance County and in Texas. DSS further alleged that respondent-mother

“ha[d] moved around in order to avoid CPS involvement” and had said that “she

plan[ned] to leave this jurisdiction and return to Texas.” On 7 March 2014, the trial

court granted DSS nonsecure custody of James, and DSS placed James with his

maternal grandparents, who are custodians of respondent-mother’s daughter, who

was born in July 2008.

      On 22 May 2014, the trial court held a hearing on the petition. On 19 June

2014, the trial court adjudicated James a neglected and dependent juvenile. The trial

court found that respondents had a history of domestic violence and noted that on 3

August 2013, Alamance County Department of Social Services had received a report

of physical abuse, domestic violence, and improper care of James, which was later

substantiated. The trial court further found that respondent-mother “has a fifteen

(15) year ongoing history of substance abuse” and “has participated in treatment

through [F]reedom House and other treatment facilities.” The trial court also found

that when a social worker had met with respondent-mother, the social worker had

observed the following: “[Respondent-mother had] bruises on her face, arm, back and

stomach. She was erratic in her behavior, repeated herself several times and was



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unable to sit still. She described a history of violence between [her] and Respondent

father.”   The trial court also found that James had been “born positive for

barbitu[r]ates” and “was noted to have developmental delays” at the time DSS took

him into nonsecure custody on 7 March 2014. Specifically, James “was not able to

roll over, crawl, scoot or pull himself up, as is typical for his age.”

       After holding a custody review hearing on 24 July 2014, the trial court entered

a custody review order on 2 September 2014 continuing James’s custody with DSS

and his kinship placement with his maternal grandparents and denying respondent-

mother any visitation with James. After holding a hearing on 8 January 2015, the

trial court entered a permanency planning order on 23 February 2015 concluding that

further reunification efforts would be futile, establishing a permanent plan of

guardianship for James, and appointing his maternal grandparents as his guardians.

The trial court awarded respondent-mother “monthly” supervised visitation with

James but waived further review hearings and relieved DSS and the GAL “of further

responsibility” in the case. The trial court also found: “Since the inception of this

case, Respondent mother has resided in Texas but has been back and forth between

Texas and North Carolina. She reports that she lives with her ex-husband in Texas.”

Respondent-mother gave timely notice of appeal from the 23 February 2015

permanency planning order.

                              II.    UCCJEA Jurisdiction



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A.     Preservation

       Respondent-mother contends that the trial court lacked subject matter

jurisdiction under the UCCJEA. See N.C. Gen. Stat. ch. 50A, art. 2 (2013). Having

failed to appeal from the 7 March 2014 order for nonsecure custody, the 19 June 2014

adjudication and disposition order, and the 2 September 2014 custody review order,

respondent-mother now argues that the issue of subject matter jurisdiction may be

raised at any time and that lack of such jurisdiction makes void all of the trial court’s

orders although she “concedes that it is arguable the trial court had the authority to

exercise emergency jurisdiction and grant nonsecure custody of James to DSS[.]” The

GAL responds that respondent-mother’s failure to appeal from the 19 June 2014

adjudication and disposition order bars her from now challenging the trial court’s

jurisdiction.

       “It is axiomatic that a trial court must have subject matter jurisdiction over a

case to act in that case.” In re S.D.A., R.G.A., V.P.M., & J.L.M., 170 N.C. App. 354,

355, 612 S.E.2d 362, 363 (2005). “Subject matter jurisdiction cannot be conferred by

consent or waiver” by the parties. In re H.L.A.D., 184 N.C. App. 381, 385, 646 S.E.2d

425, 429 (2007), aff’d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). “When a court

decides a matter without the court’s having jurisdiction, then the whole proceeding

is null and void, i.e., as if it had never happened. Thus the trial court’s subject-matter

jurisdiction may be challenged at any stage of the proceedings, even for the first time



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on appeal.” In re K.U.-S.G., D.L.L.G., & P.T.D.G., 208 N.C. App. 128, 131, 702 S.E.2d

103, 105 (2010) (emphasis added and citation and quotation marks omitted). “When

the trial court never obtains subject matter jurisdiction over the case, all of its orders

are void ab initio.” In re A.G.M., ___ N.C. App. ___, ___, 773 S.E.2d 123, 129 (2015)

(quotation marks and brackets omitted). We therefore conclude that respondent-

mother’s jurisdictional claim is properly before this Court.

B.    Standard of Review

             The North Carolina Juvenile Code grants our district
             courts “exclusive, original jurisdiction over any case
             involving a juvenile who is alleged to be abused, neglected,
             or dependent.” N.C. Gen. Stat. § 7B-200(a) (2011).
             However, the jurisdictional requirements of the Uniform
             Child Custody Jurisdiction Enforcement Act (“UCCJEA”)
             and the Parental Kidnapping Prevention Act (“PKPA”)
             must also be satisfied for a court to have authority to
             adjudicate petitions filed pursuant to our juvenile code.

In re E.J., 225 N.C. App. 333, 336, 738 S.E.2d 204, 206 (2013). Whether the trial

court has jurisdiction under the UCCJEA is a question of law subject to de novo

review. See K.U.-S.G., D.L.L.G., & P.T.D.G., 208 N.C. App. at 131, 702 S.E.2d at 105.

C.    Analysis

      We preliminarily note that the juvenile petition, as included in the record on

appeal, lacked the information required by N.C. Gen. Stat. §§ 7B-402(b), 50A-209(a)

regarding “the places where the child has lived during the last five years” and DSS’s

knowledge “of any proceeding that could affect the current proceeding[.]” See N.C.



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Gen. Stat. §§ 7B-402(b), 50A-209(a) (2013). Typically, DSS satisfies this statutory

obligation by filing an “Affidavit as to Status of Minor Child” form, listing the

addresses of the juvenile and his caretakers “during the past five (5) years” and

providing “information about a[ny] custody proceeding . . . that is pending in a court

of this or another state and could affect this proceeding.” Form AOC-CV-609 (revised

July 2011) (Portion of original in all caps). Here, DSS even alleged: “The information

required by G.S. 50A-209 is set out in the Affidavit As To Status Of Minor Child

(AOC-CV-609), which is attached hereto and incorporated herein by reference.”

(Portion of original in bold.) But no such affidavit appears in the record, even though

the petition listed respondent-mother’s address as a motel in Siler City, North

Carolina and included allegations that “Respondent mother has a CPS history in

Alamance County and in the state of Texas[,]” that “Child Protective Services in

Texas reports that Respondent mother did not comply with service recommendations

for . . . supervised visitation[,]” and that “Respondent mother has said that she plans

to leave this jurisdiction and return to Texas.”2 “It was the continuing duty of DSS

to make reasonable efforts to insure that there were no proceedings in another state

that could affect the current proceeding.” A.G.M., ___ N.C. App. at ___, 773 S.E.2d at

128 (quotation marks omitted) (citing N.C. Gen. Stat. § 50A-209(d) (2013)).


       2  We realize that it is not uncommon for documents attached as exhibits to pleadings to be
inadvertently omitted when the documents are later being copied, and it is entirely possible that an
affidavit was attached to the petition when it was filed. Unfortunately, the information which might
have been on the affidavit is crucial to the issue raised in this appeal, but it is not in our record.

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      i.    Texas Child-Custody Determination

      At the initial adjudicatory and dispositional hearing on 22 May 2014, the trial

court received into evidence and found credible reports submitted by DSS and the

GAL. The trial court attached these reports to its 19 June 2014 adjudication and

disposition order and incorporated them by reference into its findings of fact. The

GAL’s report stated:

            On January 13, 2014, [respondent-mother] was publicly
            intoxicated after a physical altercation with [Mr. J.] She
            left the home with [James] without baby supplies. [James]
            was released to [Mr. J.] A Safety Plan was put in place on
            February 3, 2014, requiring [Mr. J.] to supervise all contact
            between [James] and his mother.

DSS’s “Adjudication Court Report” included the following information about a

previous Texas order:

            While discussing possible placement options, [respondent-
            mother] produced a court order from the state of Texas
            dated 01/29/14 stating that [respondent-father] is to have
            no contact with the minor child, [James], and that
            [respondent-mother] has temporary sole custody. The
            order stated that “the court finds that [respondent-father]
            has not established paternity to the child and is not
            entitled to possession of or access to the child.” Thus
            [respondent-father] was not considered as a placement
            option at the time of removal.

Based upon this description of the action by the Texas court, it appears that the 29

January 2014 Texas order constitutes an “initial determination” under the UCCJEA.




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See N.C. Gen. Stat. § 50A-102(8) (2013) (defining “initial determination” as “the first

child-custody determination concerning a particular child”).

      DSS and the GAL argue that we must dismiss this appeal because respondent-

mother failed to include this Texas order in the record on appeal. We agree that the

order should have been included in the record on appeal, just as it should have been

noted on the Affidavit as to Status of Minor Child which DSS should have attached

to the petition as discussed above. For many issues on appeal, the failure to include

this type of information in the record would result in waiver of an argument based

upon the missing information, at the very least. But in this case, we are addressing

a jurisdictional defect, and under both state and federal law, specifically the UCCJEA

and the PKPA, the courts of this state have an affirmative duty to recognize and

enforce a valid child-custody determination made by a court of another state. N.C.

Gen. Stat. § 50A-303(a) provides:

                    A court of this State shall recognize and enforce a
             child-custody determination of a court of another state if
             the latter court exercised jurisdiction in substantial
             conformity with this Article or the determination was made
             under factual circumstances meeting the jurisdictional
             standards of this Article, and the determination has not
             been modified in accordance with this Article.

Id. § 50A-303(a) (2013). Similarly, 28 U.S.C.A. § 1738A(a) provides:

                   The appropriate authorities of every State shall
             enforce according to its terms, and shall not modify except
             as provided in subsections (f), (g), and (h) of this section,
             any custody determination or visitation determination


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             made consistently with the provisions of this section by a
             court of another State.

28 U.S.C.A. § 1738A(a) (2006). “When a prior custody order exists, a court cannot

ignore the provisions of the UCCJEA and the Parental Kidnapping Prevention Act.”

H.L.A.D., 184 N.C. App. at 385, 646 S.E.2d at 429 (brackets omitted).

      In addition, our Court has long recognized the duty of the trial court to make

an inquiry regarding jurisdiction:    “Whenever one of our district courts holds a

custody proceeding in which one contestant or the children appear to reside in

another state, the court must initially determine whether it has jurisdiction over the

action.” Davis v. Davis, 53 N.C. App. 531, 535, 281 S.E.2d 411, 413 (1981) (footnotes

omitted). And despite the lack of complete information in our record, based upon the

orders and reports of record, we know that there was an initial determination of

custody by Texas, that the respondent-mother provided this order to DSS, and that

the trial court was aware of the Texas order. Accordingly, we must examine whether

the trial court properly exercised subject matter jurisdiction under the UCCJEA.

      ii.    Modification Jurisdiction under N.C. Gen. Stat. § 50A-203

      Since the Texas court’s entry of an initial child-custody determination as to

James, “any change to that [Texas] order qualifies as a modification under the

UCCJEA.” See In re N.R.M., T.F.M., 165 N.C. App. 294, 299, 598 S.E.2d 147, 150

(2004); N.C. Gen. Stat. § 50A-102(11). The trial court did not make any findings of

fact specifically addressing its subject matter jurisdiction under the UCCJEA. The


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UCCJEA does not specifically require these findings, although it would be a better

practice to make them. See In re E.X.J. & A.J.J., 191 N.C. App. 34, 40, 662 S.E.2d

24, 27-28 (2008), aff’d per curiam, 363 N.C. 9, 672 S.E.2d 19 (2009). Accordingly, we

must examine if “certain circumstances” exist to support subject matter jurisdiction

under the UCCJEA, even if there are no specific findings to that effect. See id., 662

S.E.2d at 27-28.

      The jurisdictional requirements for a modification under the UCCJEA are as

follows:

                   Except as otherwise provided in G.S. 50A-204, a
             court of this State may not modify a child-custody
             determination made by a court of another state unless a
             court of this State has jurisdiction to make an initial
             determination under G.S. 50A-201(a)(1) or G.S. 50A-
             201(a)(2) and:

                   (1)   The court of the other state determines it no
                   longer has exclusive, continuing jurisdiction under
                   G.S. 50A-202 or that a court of this State would be a
                   more convenient forum under G.S. 50A-207; or

                   (2)    A court of this State or a court of the other
                   state determines that the child, the child’s parents,
                   and any person acting as a parent do not presently
                   reside in the other state.

N.C. Gen. Stat. § 50A-203 (2013) (emphasis added). Section 50A-203 thus allows a

North Carolina court to modify another state’s initial child-custody determination

only when

             two requirements are satisfied: (1) the North Carolina


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            court has jurisdiction to make an initial determination
            under G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2); and (2) (a)
            a court of the issuing state determines either that it no
            longer has exclusive, continuing jurisdiction under
            UCCJEA § 202 or that the North Carolina court would be
            a more convenient forum under UCCJEA § 207; or (b) a
            North Carolina court or a court of the issuing state
            determines that the child, the child’s parents, and any
            person acting as a parent do not presently reside in the
            issuing state.

K.U.-S.G., D.L.L.G., & P.T.D.G., 208 N.C. App. at 133, 702 S.E.2d at 106 (quotation

marks and brackets omitted).

            a. Initial Jurisdiction under N.C. Gen. Stat. § 50A-201(a)(1)

      A North Carolina court has jurisdiction to make an initial determination under

N.C. Gen. Stat. § 50A-201(a)(1) if North Carolina was

            the home state of the child on the date of the
            commencement of the proceeding, or was the home state of
            the child within six months before the commencement of the
            proceeding, and the child is absent from this State but a
            parent or person acting as a parent continues to live in this
            State[.]

N.C. Gen. Stat. § 50A-201(a)(1) (2013) (emphasis added). A child’s “home state” is

            the state in which a child lived with a parent or a person
            acting as a parent for at least six consecutive months
            immediately before the commencement of a child-custody
            proceeding. In the case of a child less than six months of
            age, the term means the state in which the child lived from
            birth with any of the persons mentioned. A period of
            temporary absence of any of the mentioned persons is part
            of the period.




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Id. § 50A-102(7). N.C. Gen. Stat. § 50A-102(5) defines “commencement” for UCCJEA

purposes as “the filing of the first pleading in a proceeding.” Id. § 50A-102(5).

      We review the history of James and his parents’ residences in this case. In

April 2013, James was born in North Carolina. The record suggests and no party

disputes that from April 2013 to late November 2013, James and respondent-mother

lived in North Carolina. On 22 November 2013, respondent-mother took James with

her to Texas. On or about 20 February 2014, respondent-mother and James returned

to North Carolina. On 7 March 2014, DSS filed the juvenile petition and obtained

nonsecure custody of James and placed him with his maternal grandparents, who live

in North Carolina. Respondent-father, who was confirmed to be James’s father in

April 2014, resides in North Carolina. In its 23 February 2015 permanency planning

order, the trial court found that “[s]ince the inception of this case, Respondent mother

has resided in Texas but has been back and forth between Texas and North Carolina.”

      Before 22 November 2013, North Carolina was James’s home state. See id. §

50A-102(7). This date falls “within six months before the commencement of the

proceeding” on 7 March 2014.       See id. § 50A-201(a)(1).        At all relevant times,

respondent-father has lived in North Carolina.            Accordingly, the trial court had

jurisdiction to make an initial determination under N.C. Gen. Stat. § 50A-201(a)(1).

See id.

             b. Jurisdictional Requirement of N.C. Gen. Stat. § 50A-203(2)



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      The second jurisdictional requirement for modification of an initial child-

custody determination under the UCCJEA is the following:

             (1)   The court of the other state determines it no longer
             has exclusive, continuing jurisdiction under G.S. 50A-202
             or that a court of this State would be a more convenient
             forum under G.S. 50A-207; or

             (2)    A court of this State or a court of the other state
             determines that the child, the child’s parents, and any
             person acting as a parent do not presently reside in the
             other state.

Id. § 50A-203. The determination under subsection (1) above is one that the Texas

court would have to make. “[T]he original decree State is the sole determinant of

whether jurisdiction continues. A party seeking to modify a custody determination

must obtain an order from the original decree State stating that it no longer has

jurisdiction.” N.R.M., T.F.M., 165 N.C. App. at 300, 598 S.E.2d at 151 (quoting N.C.

Gen. Stat. § 50A-202 official comment (2003)). Nothing in the record suggests that a

Texas court determined that “it no longer has exclusive, continuing jurisdiction under

G.S. 50A-202 or that a court of [North Carolina] would be a more convenient forum

under G.S. 50A-207[,]” so we must address whether subsection (2) is satisfied. See

N.C. Gen. Stat. § 50A-203.

      In its 23 February 2015 permanency planning order, the trial court found:

“Since the inception of this case, Respondent mother has resided in Texas but has been

back and forth between Texas and North Carolina. She reports that she lives with



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her ex-husband in Texas.” (Emphasis added.) Respondent-mother testified at the

permanency planning hearing on 8 January 2015 that she had been living in

Converse, Texas with her ex-husband “[f]or a little over a year.” Because the trial

court found that respondent-mother resided in Texas, we hold that subsection (2) was

not satisfied and thus the trial court lacked modification jurisdiction under N.C. Gen.

Stat. § 50A-203. But this conclusion does not end our inquiry since N.C. Gen. Stat. §

50A-203 begins with the phrase: “Except as otherwise provided in G.S. 50A-204[.]”

Id.

      iii.   Temporary Emergency Jurisdiction under N.C. Gen. Stat. § 50A-204

      A court may exercise temporary emergency jurisdiction “if the child is present

in this State and the child has been abandoned or it is necessary in an emergency to

protect the child because the child, or a sibling or parent of the child, is subjected to

or threatened with mistreatment or abuse.” Id. § 50A-204(a) (2013). In the juvenile

petition, DSS alleged that respondent-father had been recently charged with

assaulting respondent-mother and that he “was about to hit [James but] Respondent

mother [had] intervened.” In the 7 March 2014 order for nonsecure custody, the trial

court checked a box to find that: “[T]he juvenile is exposed to a substantial risk of

physical injury or sexual abuse because the parent, guardian, custodian, or caretaker

has created conditions likely to cause injury or abuse or has failed to provide, or is

unable to provide, adequate supervision or protection.” In In re E.X.J. & A.J.J. and



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In re N.T.U., this Court held that a trial court had temporary emergency jurisdiction

to grant nonsecure custody to DSS under similar factual circumstances. E.X.J. &

A.J.J., 191 N.C. App. at 40, 662 S.E.2d at 27; In re N.T.U., ___ N.C. App. ___, ___, 760

S.E.2d 49, 54, disc. review denied, ___ N.C. ___, 763 S.E.2d 517 (2014). We hold that

the trial court had temporary emergency jurisdiction to enter the 7 March 2014 order

for nonsecure custody. See E.X.J. & A.J.J., 191 N.C. App. at 40, 662 S.E.2d at 27;

N.T.U., ___ N.C. App. at ___, 760 S.E.2d at 54; N.C. Gen. Stat. § 50A-204(a).

      But as best we can tell from the record before us, in the 19 June 2014

adjudication and disposition order, the 2 September 2014 custody review order, and

the 23 February 2015 permanency planning order, the trial court did not exercise

temporary emergency jurisdiction in accordance with N.C. Gen. Stat. § 50A-204,

because in none of those orders did it “specify . . . a period that the court considers

adequate to allow [DSS] to obtain an order” from the Texas court. See N.C. Gen. Stat.

§ 50A-204(c). Nor did the trial court “immediately communicate” with the Texas

court. See id. § 50A-204(d); In re J.W.S., 194 N.C. App. 439, 451-53, 669 S.E.2d 850,

857-58 (2008) (holding that “while the trial court had temporary jurisdiction to enter

the nonsecure custody orders, the trial court did not have jurisdiction, exclusive or

temporary, to enter the juvenile adjudication order[,]” because “the record [was]

devoid of evidence that the trial court ever communicated with the New York court

to determine if the New York court wished to exercise jurisdiction[.]”). We also note



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that the trial court did not purport to exercise temporary emergency jurisdiction;

rather, in all three orders, it merely stated the bare conclusion: “[The] Court has

jurisdiction, both personal and subject matter, and all parties have been properly

served and are properly before the Court.”

      We recognize that in E.X.J. & A.J.J. and N.T.U., this Court held that the trial

court had subject matter jurisdiction to enter subsequent orders despite the fact that

it initially only had temporary emergency jurisdiction, because North Carolina

eventually acquired home state status. E.X.J. & A.J.J., 191 N.C. App. at 44, 662

S.E.2d at 29-30; N.T.U., ___ N.C. App. at ___, 760 S.E.2d at 55. But we distinguish

those cases, because in those cases, a court of another state never entered a child-

custody order. See E.X.J. & A.J.J., 191 N.C. App. at 43-44, 662 S.E.2d at 29-30;

N.T.U., ___ N.C. App. at ___, 760 S.E.2d at 55. In summary, we hold that the trial

court properly exercised temporary emergency jurisdiction in the 7 March 2014 order

for nonsecure custody but did not have temporary emergency jurisdiction to enter the

19 June 2014 adjudication and disposition order, the 2 September 2014 custody

review order, or the 23 February 2015 permanency planning order.

      iv.    Texas Court’s Jurisdiction

      The Texas court also may have exercised temporary emergency jurisdiction.

Unfortunately, the record does not include the Texas order, so we must vacate the 19

June 2014 adjudication and disposition order, the 2 September 2014 custody review



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order, and the 23 February 2015 permanency planning order and remand this case

to the trial court to examine the Texas order, communicate with the Texas court if

necessary, and determine whether the Texas court was (1) exercising exclusive,

continuing jurisdiction; (2) exercising temporary emergency jurisdiction; or (3) not

exercising jurisdiction in substantial conformity with the UCCJEA. We note that in

Davis, this Court addressed on its own the issue of whether a California court was

exercising jurisdiction in substantial conformity with the Uniform Child Custody

Jurisdiction Act (“UCCJA”), the UCCJEA’s predecessor, but we distinguish that case

because the issue of temporary emergency jurisdiction was not at issue there. See

Davis, 53 N.C. App. at 542, 281 S.E.2d at 417. In addition, as best we can tell from

the opinion, the California order was available for this Court’s review in Davis. Here,

we do not have the Texas order before us and thus cannot determine on appeal

whether the Texas court exercised jurisdiction in substantial conformity with the

UCCJEA.

      If the Texas court exercised exclusive, continuing jurisdiction, we direct the

trial court to communicate with the Texas court under N.C. Gen. Stat. § 50A-110

(2013) to request the Texas court to determine (1) whether it no longer has exclusive,

continuing jurisdiction; and (2) whether a North Carolina court would be a more

convenient forum. See id. § 50A-203(1). If the Texas court exercised temporary

emergency jurisdiction, we direct the trial court to immediately communicate with



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the Texas court under N.C. Gen. Stat. § 50A-110 to “resolve the emergency, protect

the safety of the parties and the child, and determine a period for the duration of the

temporary order.” See id. § 50A-204(d). If the trial court should determine that the

Texas court was not exercising jurisdiction “in substantial conformity” with the

UCCJEA, the trial court has no duty to recognize or enforce the Texas order and may

exercise initial child-custody jurisdiction under N.C. Gen. Stat. § 50A-201(a)(1). See

id. § 50A-303(a).

      Although we must remand the case for a proper determination of the trial

court’s jurisdiction under the UCCJEA, “we proceed to address [respondent-mother’s]

remaining arguments on appeal in the interests of expediting review.” In re E.G.M.,

___ N.C. App. ___, ___, 750 S.E.2d 857, 863 (2013) (quotation marks omitted). “In the

event that the trial court concludes on remand that it lacks subject matter

jurisdiction, then it will be required to dismiss the petition.” Id. at ___, 750 S.E.2d at

863 (brackets and ellipsis omitted).

                          III.   Permanency Planning Order

      Respondent-mother next argues that the trial court (1) erred in relying on

written reports that had not been formally tendered and admitted into evidence; (2)

failed to verify that James’s grandparents understood the legal significance of

guardianship and had adequate resources to care for James; (3) erred in concluding

that it was impossible to return James to respondent-mother within six months and



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that further reunification efforts would be futile; (4) erred in concluding that it was

in James’s best interests for respondent-mother to have minimal visitation and

entering a visitation plan that failed to set out the duration of each visitation; and (5)

erred in waiving further review hearings.

A.    Standard of Review

      Our “review of a permanency planning order 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.V. & M.V., 198 N.C. App. 108, 112, 679 S.E.2d

843, 845 (2009) (brackets omitted). The trial court’s findings of fact “are conclusive

on appeal when supported by any competent evidence, even if the evidence could

sustain contrary findings.” In re L.T.R. & J.M.R., 181 N.C. App. 376, 381, 639 S.E.2d

122, 125 (2007). In choosing an appropriate permanent plan under N.C. Gen. Stat. §

7B-906.1 (2013), the juvenile’s best interests are paramount. See In re T.K., D.K.,

T.K. & J.K., 171 N.C. App. 35, 39, 613 S.E.2d 739, 741 (construing predecessor statute

N.C. Gen. Stat. § 7B-907 (2003)), aff’d per curiam, 360 N.C. 163, 622 S.E.2d 494

(2005). “We review a trial court’s determination as to the best interest of the child for

an abuse of discretion.” In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007).

“Questions of statutory interpretation are questions of law, which are reviewed de

novo by an appellate court.” In re P.A., ___ N.C. App. ___, ___, 772 S.E.2d 240, 245

(2015).



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                                       Opinion of the Court



B.     Consideration of Evidence

       Respondent-mother contends that the trial court erred in relying on the

following written reports, because they were not formally tendered and admitted into

evidence during the hearing: (1) the 8 January 2015 DSS report; (2) the 8 January

2015 GAL report; and (3) the 15 December 2014 psychological evaluation report of

respondent-mother prepared by Dr. Karin Yoch. Without these reports, respondent-

mother contends, most of the findings of fact and five of the conclusions of law in the

permanency planning order lack any evidentiary support.3

       “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired” and must have “obtain[ed] a ruling upon the

party’s request, objection, or motion.” N.C.R. App. P. 10(a)(1). As noted by DSS and

the GAL, respondent-mother offered no objection at the 8 January 2015 hearing to

the trial court’s consideration of these reports. Accordingly, we conclude that she

waived appellate review of this issue under North Carolina Rule of Appellate

Procedure 10(a)(1).

       We are not persuaded by respondent-mother’s suggestion that she had no

opportunity to object at the permanency planning hearing, absent a formal tender of

the reports into evidence by DSS and the GAL. The hearing transcript reflects that


       3 Respondent-mother makes a blanket challenge to Findings of Fact 3(c), 3(g), 3(h), 5-11, and
13-19 and to all five conclusions of law.

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counsel for DSS announced at the beginning of the hearing, “Judge, we have a court

report in [this] matter. . . . So I’m handing to you . . . a permanency planning hearing

court report and [Dr. Yoch’s] psychological evaluation on the mother.” The trial court

thanked counsel for the documents.        After welcoming the GAL, the trial court

announced as follows:     “Well, here’s what I’m going to do.       I’m going to read

everything, and then, [counsel for respondent-mother], if you’d like me to hear from

your client, she can stand right there and say whatever she would like to.” At no time

during this exchange, or during the ensuing pause in proceedings while the court

reviewed the written reports, did counsel for respondent-mother object to the court’s

consideration of these reports. At one point, her counsel even asked “to say something

about the psychological evaluation” and offered an explanation for the report’s

statement “that [James] was born positive for barbiturates and [respondent-mother

tested] positive for benzodiazepine” at the time of James’s birth. As the transcript

makes clear, the trial court both received and intended to consider these reports as

evidence. Under Rule 10(a)(1), respondent-mother’s failure to raise a timely objection

at the hearing is a bar to her current argument on appeal. See N.C.R. App. P. 10(a)(1).

      Further, we find no merit to respondent-mother’s objection. As a type of

dispositional hearing, a permanency planning hearing “may be informal and the court

may consider written reports or other evidence concerning the needs of the juvenile.”

N.C. Gen. Stat. § 7B-901 (2013); see also 2015-2 N.C. Adv. Legis. Serv. 236, 241-42,



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250 (LexisNexis) (reflecting sections 9 and 18 of chapter 136 of the 2015 N.C. Session

Laws, which organized N.C. Gen. Stat. § 7B-901 into subsections and designated the

quoted language to subsection (a) for all “actions filed or pending on or after” 1

October 2015); N.C. Gen. Stat. § 7B-906.1(c) (2013). These hearings are not governed

by the North Carolina Rules of Evidence. See In re M.J.G., 168 N.C. App. 638, 648,

608 S.E.2d 813, 819 (2005). We therefore conclude that the trial court was free to

consider the written reports submitted by DSS, the GAL, and Dr. Yoch without a

formal proffer and admission of these documents into evidence as exhibits. See id.,

608 S.E.2d at 819.

C.    Verification of Guardians

      Respondent-mother next claims that the trial court awarded guardianship of

James to his maternal grandparents without verifying that they “understand[] the

legal significance” of guardianship and have “adequate resources to care

appropriately for the juvenile[,]” as required by N.C. Gen. Stat. §§ 7B-600(c), -906.1(j)

(2013). We have held that the trial court need not “make any specific findings in

order to make the verification” under these statutory provisions. In re J.E., B.E., 182

N.C. App. 612, 616-17, 643 S.E.2d 70, 73 (construing N.C. Gen. Stat. § 7B-600(c) and

predecessor statute N.C. Gen. Stat. § 7B-907(f) (2005)), disc. review denied, 361 N.C.

427, 648 S.E.2d 504 (2007). But the record must contain competent evidence of the

guardians’ financial resources and their awareness of their legal obligations. See



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                                   Opinion of the Court



P.A., ___ N.C. App. at ___, 772 S.E.2d at 246 (addressing the issue of verification of a

guardian’s resources); In re L.M., ___ N.C. App. ___, ___, 767 S.E.2d 430, 433 (2014)

(holding “there was insufficient evidence that [the child’s] foster mother understood

and accepted the responsibilities of guardianship”). As this Court recently explained:

                    It is correct that the trial court need not make
             detailed findings of evidentiary facts or extensive findings
             regarding the guardian’s situation and resources, nor does
             the law require any specific form of investigation of the
             potential guardian. See N.C. Gen. Stat. §§ 7B-600(c), -
             906.1(j). But the statute does require the trial 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 trial court
             cannot make any determination of adequacy without
             evidence. . . .
                    ....
             The trial 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.”

P.A., ___ N.C. App. at ___, 772 S.E.2d at 246-48 (brackets omitted). In P.A., a social

worker testified that the potential guardian provided a residence for the child and

was able to meet all of the child’s medical, dental, and financial needs. Id. at ___, 772

S.E.2d at 247. This Court held that this conclusory testimony was insufficient to

show that the potential guardian had adequate resources to care for the child. Id. at

___, 772 S.E.2d at 248.

      At the time of the permanency planning hearing, James had been in a

successful kinship placement with his maternal grandparents for ten months. The


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                                  Opinion of the Court



trial court found that the grandparents had met “[a]ll of his well-being needs[,]” and

the 8 January 2015 DSS report stated that they had been “meeting [James’s] medical

needs as well, making sure that he has his yearly well-checkups.” The GAL’s 8

January 2015 report stated that James had “no current financial or material needs[.]”

The grandparents also have custody of James’s sister. But this evidence alone is

insufficient to support a finding that James’s grandparents “have adequate

resources” to care for James. See N.C. Gen. Stat. §§ 7B-600(c), -906.1(j); P.A., ___

N.C. App. at ___, 772 S.E.2d at 247-48 (holding that a similar amount of evidence was

insufficient to satisfy N.C. Gen. Stat. §§ 7B-600(c), -906.1(j)). The trial court also

failed to “make an independent determination, based upon facts in the particular

case, that the resources available to the potential guardian are in fact adequate.” See

P.A., ___ N.C. App. at ___, 772 S.E.2d at 248 (quotation marks and brackets omitted).

      Similarly, the trial court cannot make a determination that a potential

guardian understands the legal significance of a guardianship unless the trial court

receives evidence to that effect. See L.M., ___ N.C. App. at ___, 767 S.E.2d at 433.

Here, the trial court failed to verify that the grandparents understood the legal

significance of guardianship, because the grandparents did not testify at the

permanency planning hearing and neither DSS nor the GAL reported to the court

that the grandparents were aware of the legal significance of guardianship. See id.,

767 S.E.2d at 433. Should the trial court reconsider this issue on remand, we direct



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                                         Opinion of the Court



it to comply with N.C. Gen. Stat. §§ 7B-600(c), -906.1(j).4 See P.A., ___ N.C. App. at

___, 772 S.E.2d at 248.

       We also note that the trial court on remand should more clearly address

whether respondent-mother is unfit as a parent or if her conduct has been

inconsistent with her constitutionally protected status as a parent, should the trial

court again consider granting custody or guardianship to a nonparent. In In re B.G.,

this Court addressed this issue:

               [T]o apply the best interest of the child test in a custody
               dispute between a parent and a nonparent, a trial court
               must find that the natural parent is unfit or that his or her
               conduct is inconsistent with a parent’s constitutionally
               protected status.
                      Here, the trial court concluded that it was in the best
               interest of Beth to remain with the Edwardses but failed to
               issue findings to support the application of the best interest
               analysis—namely that Respondent acted inconsistently
               with his custodial rights. Although there may be evidence
               in the record to support a finding that Respondent acted
               inconsistently with his custodial rights, it is not the duty of
               this Court to issue findings of fact. Rather, our review is
               limited to whether there is competent evidence in the
               record to support the findings and the findings support the
               conclusions of law. Accordingly, we must reverse the order
               awarding custody to the minor child’s non-parent relative
               and remand for reconsideration in light of this opinion.




       4  We recognize that the grandparents have custody of James’s sister, so it is possible that the
trial court was aware of the grandparents’ resources and understanding of their responsibilities from
its consideration of her case. “But we must base our analysis only on the evidence which appears in
the record on appeal in this case.” P.A., ___ N.C. App. at ___ n.3, 772 S.E.2d at 248 n.3.

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In re B.G., 197 N.C. App. 570, 574-75, 677 S.E.2d 549, 552-53 (2009) (citations and

quotation marks omitted).

D.     Reunification

       Respondent-mother argues that the trial court’s findings of fact do not support

its conclusion of law that it is not possible for James to be returned home within the

next six months and its conclusion of law that further efforts to reunify James with

respondent-mother would be futile and inconsistent with James’s health, safety, and

need for a safe, permanent home within a reasonable period of time.5 See N.C. Gen.

Stat. § 7B-906.1(d)(3), (e)(1) (2013).

       i.      Impossibility of Returning Home Within Six Months

N.C. Gen. Stat. § 7B-906.1(e)(1) provides:

                     At any permanency planning hearing where the
               juvenile is not placed with a parent, the court shall . . .
               consider the following criteria and make written findings
               regarding those that are relevant:
                     (1)    Whether it is possible for the juvenile to be
                     placed with a parent within the next six months and,
                     if not, why such placement is not in the juvenile’s
                     best interests.

N.C. Gen. Stat. § 7B-906.1(e)(1). The trial court’s findings must explain “why [James]

could not be returned home immediately or within the next six months, and why it is




       5  The trial court mislabeled these conclusions of law as findings of fact. See E.G.M., ___ N.C.
App. at ___, 750 S.E.2d at 867 (holding that a trial court’s finding that grounds exist to cease
reunification efforts was a conclusion of law). But the mislabeling of a conclusion of law as a finding
of fact has no impact on its efficacy. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007).

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not in [his] best interests to return home.” In re I.K., 227 N.C. App. 264, 275, 742

S.E.2d 588, 595-96 (2013).

      The trial court made the following findings in support of its conclusion of law

that it would not be possible to return James to respondent-mother’s home within the

next six months:

            3.     It is not possible for the juvenile to be returned home
            in the immediate future or within the next six (6) months
            and in support thereof, the court specifically finds:

                   a.     Respondent mother has a history of addiction
                   that dates to her teenage years. She has been in
                   [multiple] treatment programs but has never
                   sustained a significant period of recovery and
                   sobriety.

                   b.    Since the inception of this case, Respondent
                   mother has resided in Texas but has been back and
                   forth between Texas and North Carolina. She
                   reports that she lives with her ex-husband in Texas.
                   They have had a violent relationship that she
                   reports is no longer violent.

                   c.     Respondent mother has likewise had a violent
                   relationship with Respondent father. From [mid-
                   June] 2014 until [mid-July] 2014, Respondent
                   mother traveled to North Carolina from Texas and
                   while in the state, stayed with Respondent father.
                   During this time, there was serious violence between
                   Respondent parents. Although Respondent mother
                   first denied that she was staying with Respondent
                   father, she ultimately called the Social Worker and
                   asked the Social Worker to pick her up from
                   Respondent father’s home as she was afraid of him.
                   The Social Worker removed her from the home and
                   two days later, she returned to Texas.


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       d.    Respondent mother signed a Services
       Agreement in May 2014. The agreement included
       that Respondent mother should obtain drug
       treatment and complete a psychological evaluation.

       e.     On or about September 29, 2014, Respondent
       mother entered a seventy (70) day inpatient
       program in San Antonio, Texas called Alpha House.
       As of this hearing, Respondent mother reports one
       hundred and three (103) days of clean time and she
       reports that she continues to be in an outpatient
       treatment program.

       ....

       g.     Respondent mother completed a psychological
       evaluation with Dr. Karin Yoch [in December 2014].
       The report has been reviewed by the court in its[]
       entirety and is included in the file of this matter.
       The evaluation is incorporated herein as findings of
       fact as though fully set forth and supports the
       conclusions and orders herein set forth below.
       According to Dr. Yoch, Respondent mother needs
       multiple services, including nine (9) months of
       sustained clean time prior to giving consideration to
       a return of [James] to her care.

....

5.    When [James] was placed with the maternal
grandparents, he had been neglected, which Respondent
mother now admits. When [James] was first placed with
the   maternal     grandparents,    he   suffered    from
developmental delays, likely due to being neglected by
Respondent mother. His speech is delayed and he often
grunts and points as a form of communication. [James] has
gained weight and is walking and running. All of his well-
being needs are being met by the maternal grandparents.



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                                   Opinion of the Court



             6.     [James] needs stability, structure, consistency and
             to be loved and nurtured. It would likely be harmful and
             detrimental to [James] to remove him from the home of his
             maternal grandparents.

             7.     Given Respondent mother’s lengthy history of drug
             addiction and her very recent admission to inpatient and
             outpatient drug treatment, it is not in [James’s] best
             interest to be returned to the custody and care of
             Respondent mother. Respondent mother has much work
             to do before she will be able to parent and she has only just
             begun to address her addiction and mental health issues.

(Emphasis added.)     The trial court found that respondent-mother had not fully

resolved her issues of domestic violence, mental health, and substance abuse and

needed to continue to make progress in those areas before reunification could occur.

We conclude that these findings adequately support the trial court’s conclusion of law

under N.C. Gen. Stat. § 7B-906.1(e)(1) that returning James to respondent-mother’s

care within six months would be contrary to his best interests.

      ii.    Futility of Further Reunification Efforts

      Respondent-mother also challenges the trial court’s conclusion of law that

“[b]ased upon the evidentiary findings listed above, further efforts to reunify or place

[James] with Respondent mother clearly would be futile and/or inconsistent with

[James’s] health, safety, and need for a safe, permanent home within a reasonable

period of time.” Respondent-mother acknowledges her “very long substance [abuse]

history” and “several” prior attempts at sobriety but “asserts that her current efforts




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                                  Opinion of the Court



at reunification and compliance with her case plan support continued reunification

efforts.”

       Section 7B-906.1 of the Juvenile Code requires the trial court at each

permanency planning hearing to “consider the following criteria and make written

findings regarding those that are relevant: . . . [w]hether efforts to reunite the

juvenile with either parent 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). This determination “is in the nature of a conclusion of

law that must be supported by adequate findings of fact.” E.G.M., ___ N.C. App. at

___, 750 S.E.2d at 867.

       The trial court made the following findings, which show that at the time of the

8 January 2015 hearing, respondent-mother had begun to address her domestic

violence, mental health, and substance abuse issues:

             [3]b. . . . [Respondent-mother] reports that she lives with
             her ex-husband in Texas. They have had a violent
             relationship that she reports is no longer violent.

             e.     On or about September 29, 2014, Respondent
             mother entered a seventy (70) day inpatient program in
             San Antonio, Texas called Alpha House. As of this hearing,
             Respondent mother reports one hundred and three (103)
             days of clean time and she reports that she continues to be
             in an outpatient treatment program.

             f.    Respondent mother reports that she works at a
             restaurant approximately thirty (30) hours per week.



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In addition, Dr. Yoch’s psychological evaluation report, which the trial court

incorporated into its findings of fact, included the following recommendation:

                    Reunification should not be considered until
             [respondent-mother] has demonstrated a commitment to
             recovery and documented sobriety for at least 9 months,
             particularly given the seriousness and longstanding nature
             of her addictions. She needs to show an ability to perform
             in a stable job or jobs over a similar period of time, without
             being fired or laid off due to relationship or job performance
             issues. [Respondent-mother] would also need to have the
             financial resources to support her children and to have
             stable and safe housing.

(Portions of original in all caps and in bold.) The trial court thus found that it could

consider reunification if respondent-mother overcame her substance abuse and

secured stable employment and housing in the next nine months. Should the trial

court conclude it has subject matter jurisdiction on remand, it should determine

whether respondent-mother has continued to make progress in the areas of domestic

violence, mental health, and substance abuse and reexamine this issue of

reunification in accordance with N.C. Gen. Stat. § 7B-906.1(d)(3).

E.    Visitation

      Respondent-mother next argues that the trial court’s findings of fact do not

support its conclusion of law that “[i]t is in [James’s] best interest to have minimal

visitation with Respondent mother.” But Findings of Fact 3, 5, 6, and 7, as quoted

and discussed above, demonstrate that respondent-mother had not fully resolved her




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issues of domestic violence, mental health, and substance abuse. The trial court’s

findings of fact thus support this conclusion of law.

      Respondent next challenges the visitation plan entered by the trial court under

N.C. Gen. Stat. § 7B-905.1(c) (2013) on the ground that it fails to specify the duration

of her visitation with James. The statute requires “any order providing for visitation

[to] specify the minimum frequency and length of the visits and whether the visits

shall be supervised.”     N.C. Gen. Stat. § 7B-905.1(c) (emphasis added).          The

permanency planning order merely provides:            “[Respondent-mother] shall have

monthly visitation in North Carolina with [James] supervised by the [grandparents]

at a location of their choice. [Respondent-mother] shall give sufficient notice to the

[grandparents] of her intent to exercise visitation.” The order fails to establish the

duration of respondent-mother’s monthly visitation. Should the trial court reconsider

this issue on remand, we direct it to comply with N.C. Gen. Stat. § 7B-905.1(c). See

In re T.H., ___ N.C. App. ___, ___, 753 S.E.2d 207, 219 (2014).

F.    Waiver of Further Review Hearings

      Respondent-mother contends that the trial court erred in waiving subsequent

permanency planning hearings under N.C. Gen. Stat. § 7B-906.1(n), because James

had not “resided in the placement for a period of at least one year” at the time of the

permanency planning hearing. See N.C. Gen. Stat. § 7B-906.1(n)(1). Subsection (n)




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                                   Opinion of the Court



provides that a court may waive further hearings only “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.

             (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.

Id. § 7B-906.1(n). “The trial court must make written findings of fact satisfying each

of the enumerated criteria listed in N.C. Gen. Stat. § 7B-906.1(n), and its failure to

do so constitutes reversible error.” P.A., ___ N.C. App. at ___, 772 S.E.2d at 249.

      Here, the trial court failed to make any findings in support of the first, third,

and fourth criteria set forth in N.C. Gen. Stat. § 7B-906.1(n). And it would have been

impossible for the trial court to make a finding as to the first criterion, because James

had not resided with his maternal grandparents for at least one year at the time of

the 8 January 2015 hearing or at the time the trial court entered its 23 February




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                                  Opinion of the Court



2015 permanency planning order. Should the trial court reconsider this issue, we

direct it to comply with N.C. Gen. Stat. § 7B-906.1(n).

                                  IV.      Conclusion

      We vacate the 19 June 2014 adjudication and disposition order, the 2

September 2014 custody review order, and the 23 February 2015 permanency

planning order and remand for further proceedings consistent with this opinion. We

also deny the GAL’s motion to dismiss.

      VACATED AND REMANDED.

      Judges CALABRIA and DAVIS concur.




                                          - 35 -
