An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-938
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:    18 March 2014




IN THE MATTER OF:                             Madison County
                                              No. 11 JA 36
B.K.



       Appeal by respondent-mother from order entered 5 October

2012 by Judge F. Warren Hughes in Madison County District Court.

Heard in the Court of Appeals 27 February 2014.


       Larry   Leake,   for  petitioner-appellee                Madison     County
       Department of Social Services.

       Windy H. Rose, for respondent-appellant mother.

       Womble Carlyle Sandridge & Rice,                 LLP,    by    Whitney     A.
       Passmore, for guardian ad litem.


       CALABRIA, Judge.


       Mother (“respondent”)        appeals from       a   permanency planning

order awarding guardianship of B.K. (“Bryson”)1 to his paternal

grandparents.      We affirm in part and remand in part.

                                 I. Background

1
  We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
                                       -2-
       On 1 August 2011, the Madison County Department of Social

Services      (“DSS”)    obtained    non-secure   custody    of   Bryson     after

filing    a   petition    alleging    that   Bryson’s   parents    were      using

methamphetamine and other drugs and that Bryson was a neglected

and dependent juvenile.         The petition also alleged that a Child

Abuse Medical Evaluation had been completed, and the findings

were consistent for neglect due to exposure to domestic violence

and substance abuse.         Bryson’s one-year-old niece, who had also

been in the home2, tested positive for methamphetamine in a hair

follicle test.      The petition further alleged that respondent was

incarcerated, that Bryson’s father was a fugitive wanted for

felony offenses, and that Bryson had been placed with James and

Judy    Fowler,    his    paternal    grandparents.         According   to    the

petition, Bryson’s needs were being met by his grandparents, but

they had no legal means of acquiring medical care or academic

services for him.

       The trial court adjudicated Bryson dependent based upon the

consent of both parents.            In subsequent disposition orders, the

trial court continued custody of Bryson with DSS and ordered

respondent to comply with her case plan, including completion of

a mental health assessment.           The trial court was concerned that



2
    Only Bryson is the subject of this appeal.
                                    -3-
respondent needed mental treatment and appointed a Guardian ad

litem for her.      The Guardian ad litem reported to the trial

court that respondent had submitted a fraudulent psychological

evaluation to the court during a previous hearing in the instant

case.   The    court   ordered    visitation    ceased    pending   further

orders, Bryson’s placement with his grandparents to continue,

“appropriate    action”   for    respondent’s   perjury    regarding    the

false evaluation, and a further permanency planning hearing on

27 August 2012.

     At the permanency planning hearing, DSS presented evidence

through the testimony of one social worker.          Respondent did not

offer any evidence.       In an order entered 5 October 2012, the

trial court found that it was not possible for Bryson to return

home within the next six months           and awarded guardianship of

Bryson to his paternal grandparents.            Respondent is the only

parent to appeal this order.

     As an initial matter, we note that respondent filed her

notice of appeal on 9 May 2013, well outside the thirty day

provision of Rule 3 of the North Carolina Rules of Appellate

Procedure.     N.C.R. App. P. 3(c) (2012).        Generally, failure to

comply with Rule 3 of our Rules of Appellate Procedure requires

dismissal of the appeal.        In re I.S., 170 N.C. App. 78, 84, 611
                                       -4-
S.E.2d     467,      471     (2005).            However,        under       appropriate

circumstances,    “[t]his      Court   can        exercise      its    discretion       and

treat    an   appellant’s     appeal       as     a    petition       for   a   writ     of

certiorari.”      Id. (citations omitted).                   Since cases regarding

parental rights have such serious consequences and DSS did not

contest respondent’s failure to comply with Rule 3, we exercise

our discretion to grant certiorari and address the merits of

respondent’s appeal.

                      II. Permanency Planning Hearing

    Respondent       first    argues       that       the    trial    court     erred    by

failing to make sufficient findings required by N.C. Gen. Stat.

§ 7B–907(b) (2011).3         Specifically, she contends that the trial

court failed to make any findings explaining why Bryson could

not be returned home within six months.                     We disagree.

    “The purpose of the permanency planning hearing shall be to

develop   a   plan    to    achieve    a    safe,       permanent       home    for     the

juvenile within a reasonable period of time.”                        N.C. Gen. Stat. §

7B-907(a) (2011).          If the juvenile is not returned home, the




3
  This section was repealed on 1 October 2013 and replaced by
N.C. Gen. Stat. § 7B-906.1(e) (2013).     The effective date is
applicable to actions filed or pending on or after this date.
N.C. Session Laws 2013-129, §§ 25, 26, 41. Because the order at
issue was entered on 5 October 2012, N.C. Gen. Stat. § 7B-907(b)
still applies to respondent’s case.
                                       -5-
statute requires the trial court to consider and make written

findings regarding the relevant statutory factors:

           (1) Whether it is possible for the juvenile
           to be returned home immediately or within
           the next six months, and if not, why it is
           not in the juvenile’s best interests to
           return home;

           (2) Where the juvenile’s return home is
           unlikely within six months, whether legal
           guardianship or custody with a relative or
           some   other   suitable person  should   be
           established, and if so, the rights and
           responsibilities which should remain with
           the                                parents;

           . . .

           (4) Where the juvenile’s return home is
           unlikely within six months, whether the
           juvenile   should  remain   in the  current
           placement or be placed in another permanent
           living arrangement and why;

           . . .

           (6) Any other            criteria   the    court    deems
           necessary.

N.C. Gen. Stat. § 7B-907(b) (2011).                  “Appellate 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.C.S.,   164    N.C.   App.   96,   106,    595   S.E.2d   155,   161   (2004),

overruled on other grounds by In re R.T.W., 359 N.C. 539, 614

S.E.2d 489 (2005).         “If the trial court’s findings of fact are
                                          -6-
supported     by    any    competent     evidence,      they   are    conclusive    on

appeal.” Id.

      In    the     instant      case,   according      to     the    trial    court’s

findings, both of Bryson’s parents were incarcerated, and he had

been in DSS custody for more than twelve months.                      Respondent had

made limited efforts toward her case plan, and DSS had made

reasonable efforts to reunite the family.                    The trial court also

found that it was not possible for Bryson to return home in six

months.     Bryson’s placement with his paternal grandparents was

an appropriate placement where he was doing well.                             Both the

Guardian ad litem and DSS agreed that DSS custody should be

terminated and Bryson’s paternal grandparents should be granted

guardianship.

      Respondent contends that none of the findings explain why

Bryson could not be returned home within six months.                          However,

the   trial        court    specifically        found     that       respondent    was

incarcerated.        The social worker who testified for DSS at the

hearing    indicated       she    did    not    know    whether      respondent    was

awaiting trial or had been sentenced for the perjury offense

concerning her fraudulent psychological evaluation.                       The record

also indicates that respondent faced additional pending charges

in Tennessee at the time of the hearing.                     Respondent’s ongoing
                                          -7-
legal issues and incarceration were also factors in the trial

court’s award of custody to DSS in the 1 August 2011 Non-secure

Custody Order finding Bryson was receiving improper care and

supervision     from    his    parents.          Although   the    trial   court’s

findings   of   fact     are    sparse,     they    sufficiently      explain   why

Bryson could not be returned home within the next six months,

and comply with N.C. Gen. Stat. § 7B-907(b).

                                III. Guardianship

      Respondent       also    argues     that   the   trial   court    erred   by

awarding   guardianship        to   the   grandparents      without    making   the

verifications required by N.C. Gen. Stat. §§                      7B-600 and    7B-

907(f)4 (2011).    We agree.

      When it is not in a juvenile’s best interests to return

home and a trial court appoints a guardian for the juvenile as

the   juvenile’s permanent plan, “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); see also N.C. Gen. Stat. § 7B-907(f)

(2011) (providing for the same verification).                     This Court has

previously held that the trial court is not required to “make

4
  This section was also repealed and replaced by N.C. Gen. Stat.
§ 7B-906.1(j). N.C. Session Laws 2013-129, §§ 25, 26.
                                   -8-
any specific findings in order to make the verification.”              In re

J.E., 182 N.C. App. 612, 616–17, 643 S.E.2d 70, 73 (2007).

    In   J.E.,    the   trial   court    received   into    evidence     and

considered home study reports for the juveniles’ grandparents,

who were subsequently appointed as guardians.              DSS noted that

the maternal grandparents both had raised children in the past,

and were aware of the importance of structure and consistency

for children.     The maternal grandparents also understood the

responsibility of caring for the juveniles, were committed to

raising the juveniles, and were financially capable of providing

for the juveniles’ needs.       Id. at 617, 643 S.E.2d at 73.           This

Court concluded that the findings in the home study reports were

sufficient to demonstrate that the trial court complied with the

requirements of N.C. Gen. Stat. § 7B-907(f) and § 7B-600(c).

Id., 643 S.E.2d at 73.

The length of time that a guardian has successfully raised a

juvenile is also a factor that may support the trial court’s

finding that the guardians understand the legal significance and

have adequate resources.        In re R.A.H., 182 N.C. App. 52, 58,

641 S.E.2d 404, 408 (2007).

    In the instant case, neither of the grandparents testified

at the hearing.     The record includes a DSS court report and a
                                             -9-
guardian ad litem report, as well as a letter from Bryson’s

therapist.      However, only the therapist’s letter was presented

at the hearing.           No home study report was entered into evidence.

The DSS court report, guardian ad litem report, and letter all

indicate that Bryson was doing well in his placement and that

his grandparents were committed to Bryson’s long term care, but

none of them confirm that his grandparents understood the legal

significance         of      the        appointment        or     had     resources      to

appropriately care for Bryson.                     Nevertheless, the trial court

awarded    guardianship            to    Bryson’s    grandparents,        but    made    no

findings      that    they    understood       the       legal   significance     of    the

appointment or had adequate resources to appropriately care for

Bryson.       In addition, while the guardians in R.A.H. had raised

the juvenile for six years, in the instant case Bryson had only

been placed with his grandparents for approximately one year at

the    time    of     the    hearing,        and    no     additional     evidence      was

presented regarding the required verification.                            Therefore, we

hold    that    the       trial     court    erred       by     failing   to    make    the

verifications required by N.C. Gen. Stat. §§ 7B-600(c) and 7B-

907(f).

                                        IV. Conclusion

       The trial court’s findings adequately address the relevant
                                       -10-
factors of N.C. Gen. Stat. § 7B-907(b).                   Where the court found

that Bryson could not be returned home within six months, the

court made additional findings that indicated the incarceration

of both parents was at least one of the reasons.                         However,

despite    the   grandparents’     apparent        willingness     to   care    for

Bryson, the trial court made no findings and heard no evidence

to   indicate    that    the   grandparents        were    aware   of   the    legal

significance     of     guardianship    or    had     adequate     resources      to

appropriately care for Bryson, and therefore failed to complete

the statutorily required verification.                Accordingly, we affirm

the portion of the trial court’s order regarding guardianship

for Bryson’s permanency plan and remand to the trial court for

findings    regarding       appointment       of     Bryson’s      guardians      in

accordance with N.C. Gen. Stat. §§ 7B-600(c) and 7B-907(f).

      Affirmed in part and remanded in part.

      Judges ELMORE and STEPHENS concur.

      Report per Rule 30(e).
