                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA18-287

                                     Filed: 4 December 2018

Wake County, No. 16 JA 239

IN THE MATTER OF: D.A.


      Appeal by respondent-father from order entered 21 November 2017 by Judge

Keith Gregory in Wake County District Court. Heard in the Court of Appeals 8

November 2018.


      Wake County Attorney’s Office, by Mary Boyce Wells, for petitioner-appellee
      Wake County Human Services.

      David A. Perez, for respondent-appellant father.

      Poyner Spruill LLP, by Hannah M.L. Munn, for Guardian ad Litem.


      CALABRIA, Judge.


      Respondent, the father of D.A. (“Dustin”)1, appeals from the trial court’s

permanency planning order granting custody of Dustin to the child’s maternal

grandparents. Because we hold the trial court failed to adopt a permanent plan for

Dustin as mandated by N.C. Gen. Stat. § 7B-906.2, we reverse the trial court’s order

and remand for further proceedings.

                            I. Factual and Procedural Background




      1   A pseudonym is used to protect the juvenile’s identity and for ease of reading.
                                      IN RE D.A.

                                  Opinion of the Court



        Respondent and the child’s mother are no longer involved in a relationship.

The mother lives in Hawaii, while respondent lives in Oregon with his girlfriend. The

mother has three other children besides Dustin and is involved with the Honolulu

Department of Human Services regarding two of those children. Dustin was living

with his mother until March 2016 when he left to live with respondent in Chicago,

Illinois.

        On 26 October 2016, Wake County Human Services (“WCHS”) filed a juvenile

petition alleging Dustin to be a neglected and dependent juvenile. WCHS alleged

that it received a report on 18 October 2016 that Dustin was sent by respondent from

Chicago in July of 2016 to stay with his maternal grandparents, Mr. and Mrs. J., in

Wendell, North Carolina for a few weeks while he established himself in a new job.

A few weeks later, respondent asked if Dustin could stay a couple more weeks as he

was still seeking employment. Mr. and Mrs. J. attempted to enroll Dustin in school

but needed signed documents from respondent and the mother in order to do so. The

petition alleged that respondent had refused to comply with getting the appropriate

forms notarized and failed to contact the social worker in order for Dustin to be

enrolled in school. WCHS obtained nonsecure custody of Dustin and continued his

placement with Mr. and Mrs. J.

        The trial court held a hearing on the petition on 22 February and 21 March

2017.    On 1 May 2017, the trial court entered an order adjudicating Dustin as



                                         -2-
                                     IN RE D.A.

                                 Opinion of the Court



neglected. The court ordered respondent to comply with his Out of Home Family

Services Agreement, which required him to enter into and comply with a visitation

agreement; complete a drug treatment program and follow all recommendations;

refrain from using illegal or impairing substances and submit to random drug

screens; complete a psychological assessment and follow all recommendations;

complete parenting classes and demonstrate learned skills; and obtain and maintain

sufficient housing and income. The trial court found that respondent was a fit and

proper person to have unsupervised overnight visitation a minimum of one weekend

per month. The trial court did not establish a permanent plan but ordered WCHS to

continue to make reasonable efforts to eliminate Dustin’s need for placement outside

of the home.

      The trial court held a placement review and permanency planning hearing on

15 June 2017.    In an order entered 9 August 2017, the trial court found that

respondent had made substantial progress on his Family Services Agreement goals

in that he completed a parenting course, secured sufficient housing, and was

participating in therapy. The trial court also found that respondent’s home was safe

and appropriate for Dustin and that respondent could provide proper care and

supervision of Dustin on a trial home placement basis. Therefore, the trial court

continued Dustin’s custody with WCHS but ordered a trial placement with

respondent in Oregon. The court ordered respondent to comply with the conditions



                                        -3-
                                      IN RE D.A.

                                  Opinion of the Court



of the trial home placement, which included the following: demonstrate learned skills

from parenting class; provide at least five days advance notice prior to taking Dustin

on an out of state trip; maintain Dustin’s enrollment in public school without

interruption from trips; maintain sufficient housing; seek out safe and appropriate

extracurricular activities for Dustin; maintain sufficient lawful income; complete a

psychological or mental health assessment and follow all recommendations; and

maintain regular contact with WCHS and the social worker, notifying WCHS of any

change in circumstances within five business days.

      On 15 June 2017, Dustin began his trial home placement with respondent.

Upon leaving North Carolina, respondent traveled with Dustin to Georgia to visit

with respondent’s sister through the end of the month. A Georgia social worker

checked on the family during this time and verified Dustin’s well-being and safety.

On 7 July 2017, respondent reported to WCHS that he and Dustin had traveled to

Illinois and were visiting with respondent’s mother for a few weeks. A wellness check

was done while respondent was in Illinois. On 2 August 2017, respondent informed

WCHS that they had arrived home in Portland, Oregon.

      Respondent contacted the Oregon Interstate Compact on the Placement of

Children (“ICPC”) social worker, Sonya Sullivan, in order to obtain health insurance

for Dustin so that he could take Dustin to the dentist in Oregon and enroll him in

therapy. Ms. Sullivan conducted a home visit on 10 August 2017 and the visit “went



                                         -4-
                                     IN RE D.A.

                                 Opinion of the Court



well.”    However, Ms. Sullivan learned that respondent and his girlfriend had

purchased airline tickets for themselves and Dustin to go to France to attend a

wedding and for respondent and his girlfriend to get married. Respondent had not

informed WCHS of the trip or that he planned to marry. Respondent had purchased

the tickets in April 2017 hoping to have custody of Dustin and planned to fly out of

New York on 1 August 2017. However, as a result of the scheduled home visit in

Oregon, neither respondent nor Dustin went to France.

         On 23 August 2017, Ms. Sullivan reported to WCHS that an FBI background

check revealed an outstanding warrant for respondent from Georgia. Ms. Sullivan

initially believed the order for arrest was due to a federal probation violation.

However, it was later discovered respondent had failed to appear for a scheduled

hearing in Georgia in 2014 for a misdemeanor driving without a license charge.

Social services contacted respondent on 23 August 2017 regarding the existence of

the warrant. Because respondent was not able to provide a feasible plan of care for

Dustin if respondent was arrested on the outstanding warrant, WCHS decided to

remove Dustin from respondent’s care. Dustin was removed from respondent’s home

on 24 August 2017 and placed back in the home of Mr. and Mrs. J. Respondent

contacted the state of Georgia and his warrant was cancelled by 26 or 27 August 2017.

         A subsequent placement and permanency planning hearing was held on 13

October 2017.     In an order entered 21 November 2017, the court found that



                                        -5-
                                      IN RE D.A.

                                  Opinion of the Court



respondent had signed Dustin up for soccer and parkour, but did not enroll Dustin in

public school or obtain dental treatment for Dustin prior to his removal from the home

on 24 August 2017. The court also found that respondent did not provide proof of his

income and that respondent acknowledged he drove with Dustin in the car many

times without having a valid driver’s license.           Therefore, the court found that

respondent “continued to act in a manner inconsistent with [his] constitutionally

protected status as a parent” and that it was not possible for Dustin to return to

respondent’s home in the next six months. Accordingly, the trial court awarded legal

custody of Dustin to the maternal grandparents. The court also waived further

review hearings and relieved WCHS, the guardian ad litem, and respondent’s

attorney “of further obligations in this matter.” Respondent filed timely written

notice of appeal on 19 December 2017.

      Respondent appeals from the trial court’s permanency planning order

changing legal custody of Dustin pursuant to N.C. Gen. Stat. § 7B-1001(a)(4) (2017).

                                 II. Permanent Plan

       Respondent’s sole argument on appeal is that the trial court erred in ceasing

reunification efforts because the trial court’s findings of fact do not support such a

conclusion. Because the trial court failed to comply with statutory mandate and

adopt a permanent plan for Dustin, however, we decline to address this argument,

and reverse and remand.



                                         -6-
                                      IN RE D.A.

                                  Opinion of the Court



                               A. Standard of Review

      “This Court’s 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 P.O., 207 N.C. App. 35, 41, 698 S.E.2d

525, 530 (2010).    “Findings supported by competent evidence, as well as any

uncontested findings, are binding on appeal.” In re J.A.K., ___ N.C. App. ___, ___,

812 S.E.2d 716, 719 (2018). The trial court’s conclusions of law are reviewed de novo.

In re D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006) (citation omitted).

                                     B. Analysis

      Section 7B-906.2 of our General Statutes provides that

             [a]t any permanency planning hearing pursuant to G.S.
             7B-906.1, the court shall adopt one or more of the following
             permanent plans the court finds is in the juvenile’s best
             interest:

             (1) Reunification as defined by G.S. 7B-101.

             (2) Adoption under Article 3 of Chapter 48 of the General
                 Statutes.

             (3) Guardianship pursuant to G.S. 7B-600(b).

             (4) Custody to a relative or other suitable person.

             (5) Another Planned Permanent Living Arrangement
                 (APPLA) pursuant to G.S. 7B-912.

             (6) Reinstatement of parental rights pursuant to G.S. 7B-
                 1114.



                                         -7-
                                      IN RE D.A.

                                  Opinion of the Court



N.C. Gen. Stat. § 7B-906.2(a) (2017). The statute further provides that “[a]t any

permanency planning hearing, the court shall adopt concurrent permanent plans and

shall identify the primary plan and secondary plan.” N.C. Gen. Stat. § 7B-906.2(b).

“Reunification shall remain a primary or secondary plan unless the court made

findings under G.S. 7B-901(c) or makes written findings that reunification efforts

clearly would be unsuccessful or would be inconsistent with the juvenile’s health or

safety.” Id. “Concurrent planning shall continue until a permanent plan has been

achieved.” N.C. Gen. Stat. § 7B-906.2(a1). “This Court has held that use of the

language ‘shall’ is a mandate to trial judges, and that failure to comply with the

statutory mandate is reversible error.” In re E.M., 202 N.C. App. 761, 764, 692 S.E.2d

629, 631 (quoting In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001)),

disc. review denied, 364 N.C. 325, 700 S.E.2d 749 (2010).

      Here, although the trial court indicated it held “[a] placement review and

permanency planning hearing” on 13 October 2017, the trial court did not adopt a

permanent plan as required by N.C. Gen. Stat. § 7B-906.2. Despite purporting to

hold two permanency planning hearings in this case after the initial disposition, the

trial court never established a permanent plan for the child. In the 9 August 2017

order entered after the first permanency planning hearing, the trial court ordered

WCHS to continue to make reasonable efforts aimed at returning Dustin “promptly

to a safe home . . . in accordance with the plan approved by this Court within this



                                         -8-
                                     IN RE D.A.

                                 Opinion of the Court



Order.” However, the court did not adopt a permanent plan for Dustin in the order.

Further, the 21 November 2017 order also did not establish a permanent plan for

Dustin. Although this order placed custody of Dustin with Mr. and Mrs. J., the order

failed to include a primary or secondary plan in accordance with N.C. Gen. Stat. §

7B-906.2(b).

      Because the trial court failed to comply with the mandate set forth in N.C. Gen.

Stat. § 7B-906.2, we reverse the trial court’s permanency planning order awarding

custody of Dustin to the maternal grandparents and waiving further review hearings.

We remand the case to the trial court for entry of an order in which the court shall

adopt one or more permanent plans in accordance with N.C. Gen. Stat. § 7B-906.2

and make the appropriate necessary findings. Because we are reversing the trial

court’s order, we need not address respondent’s arguments regarding whether the

trial court made sufficient findings of fact and whether particular findings were

supported by the evidence.

      REVERSED AND REMANDED.

      Judges TYSON and ZACHARY concur.




                                        -9-
