              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803 S.E.2d 873, 2017 WL 41269647 (2017) (unpublished).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
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                                  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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                            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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VACATED AND REMANDED.

Judges DIETZ and MURPHY concur.




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