                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-639-2

                                     Filed: 6 March 2018

Orange County, No. 15 JA 63

IN THE MATTER OF: C.P.


        Appeal by respondent-mother from order entered 21 March 2017 by Judge

Joseph Moody Buckner in Orange County District Court. Originally heard in the

Court of Appeals 14 December 2017. Petition for Rehearing allowed 14 February

2018.


        Holcomb and Stephenson, LLP, by Angenette Stephenson, for Orange County
        Department of Social Services, petitioner-appellee.

        K&L Gates LLP, by Leah D’Aurora Richardson, for guardian ad litem.

        W. Michael Spivey, for respondent-appellant mother.


        BERGER, Judge.


        Respondent-mother appeals from an order that adjudicated the juvenile, C.P.

(“Carl”),1 as a neglected and dependent juvenile, and awarded permanent

guardianship to the juvenile’s half-brother (“Chris”). On January 2, 2018, this Court

filed an opinion that reversed the adjudication that Carl is a dependent juvenile, and

vacated the order for failing to order reunification as a concurrent plan and failing to

make required findings regarding guardianship with Chris. On January 29, 2018,


        1Carl is a stipulated pseudonym for ease of reading and to protect the juvenile’s identity
pursuant to N.C.R. App. P. 3.1(b).
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                                          Opinion of the Court



petitioner-appellee Orange County Department of Social Services (“OCDSS”) filed a

Petition for Rehearing pursuant to Rule 31 of the North Carolina Rules of Appellate

Procedure. We subsequently allowed the Petition for Rehearing, and this opinion

replaces the original opinion. After careful review, we affirm the portion of the trial

court’s order that ceases reunification efforts; reverse the adjudication that Carl is a

dependent juvenile; and vacate the order for failing to order reunification as a

concurrent permanent plan and failing to make required findings regarding

guardianship with Chris.

                              Factual and Procedural Background

      On July 14, 2015, OCDSS filed a juvenile petition alleging that thirteen-year-

old Carl was a neglected and dependent juvenile. A hearing was held on August 6,

2015 and an order was entered on August 27, 2015 in which the trial court (1)

adjudicated Carl and his older sister2 as neglected and dependent, and (2) awarded

custody of Carl and his sister to their adult half-brother.                     Respondent-mother

appealed.

      On October 4, 2016, this Court reversed and remanded the case for a new

hearing because the order did not result from a proper adjudicatory hearing or valid

consent by Respondent-mother. In re K.P., C.P., ___ N.C. App. ___, ___, 790 S.E.2d

744, 749 (2016). On remand, the trial court held an “adjudication/disposition and



      2   Carl’s sister has reached the age of majority and is not a party to this appeal.

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                                  Opinion of the Court



permanency planning hearing” on March 2, 2017. The trial court (1) adjudicated Carl

as dependent and neglected, and (2) awarded guardianship of Carl to his adult half-

brother in an order dated March 21, 2017. Respondent-mother filed notice of appeal.

      Respondent-mother concedes that she failed to serve a copy of her written

notice of appeal on the guardian for the juvenile. See N.C.R. App. P. 3.1(a). Although

Respondent-mother failed to comply with Rule 3.1(a) of the North Carolina Rules of

Appellate Procedure, this Court has the discretionary authority “to permit review of

the judgments and orders of trial tribunals when the right to prosecute an appeal has

been lost by failure to take timely action.” N.C.R. App. P. 21(a)(1). Therefore, we

grant Respondent-mother’s petition for writ of certiorari and address the merits of

this case.

                                       Analysis

      Respondent-mother first contends that the court erred by adjudicating Carl as

a dependent juvenile. The Juvenile Code defines a dependent juvenile as one whose

“parent, guardian, or custodian is unable to provide for the juvenile’s care or

supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.

Stat. § 7B-101(9) (2015). “Under this definition, the trial court must address both (1)

the parent’s ability to provide care or supervision, and (2) the availability to the

parent of alternative child care arrangements.” In re P.M., 169 N.C. App. 423, 427,

610 S.E.2d 403, 406 (2005). Respondent-mother argues that all of the evidence and



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                                   Opinion of the Court



findings show that Carl was always in the care of a suitable relative, and thus he

could not be adjudicated as dependent. OCDSS concedes that this adjudication was

error because at the time of the adjudication, Carl was living with his brother, who

was a responsible adult.     Because he had an appropriate alternative child care

arrangement, Carl was not a dependent juvenile, and the adjudication must be

reversed.

      Respondent-mother next contends that the court lacked authority to cease

reunification efforts at the initial dispositional hearing. Specifically, she argues the

court improperly heard the adjudication, initial disposition, and permanency

planning hearings on the same day. Associated therewith, Respondent-mother also

asserts that the trial court was required to order reunification as a concurrent plan

pursuant to N.C. Gen. Stat. § 7B-906.2.

      The “dispositional hearing shall take place immediately following the

adjudicatory hearing.” N.C. Gen. Stat. § 7B-901(a) (2015). The trial court is required

to “conduct a review hearing within 90 days from the date of the [initial] dispositional

hearing.” N.C. Gen. Stat. § 7B-906.1(a) (2015). Within one year from “the initial

order removing custody, there shall be a review hearing designated as a permanency

planning hearing.”    Id.   The General Assembly has not proscribed conducting

adjudications, dispositional, and permanency planning hearings on the same day,

and the trial court did not err in hearing these matters.



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                                    Opinion of the Court



        However, Respondent-mother correctly asserts, and the guardian ad litem

concedes, that the trial court erred in failing to order reunification as a concurrent

plan during the initial permanency planning hearing. “At any permanency planning

hearing, the court shall adopt concurrent permanent plans and shall identify the

primary plan and secondary plan. Reunification shall remain a primary or secondary

plan unless” certain findings are made.          N.C. Gen. Stat. § 7B-906.2(b) (2015)

(emphasis added). The statutory requirement that “reunification shall remain” a

plan presupposes the existence of a prior concurrent plan which included

reunification. Thus, reunification must be part of an initial permanent plan. Here,

even though the trial court found that Respondent-mother “presents a risk to the

health and safety of the juvenile” and that “[r]eunification efforts . . . would be futile,”

the trial court erred in failing to include reunification as part of the initial concurrent

plan.

        The same cannot be said of reunification efforts, however. Pursuant to Section

7B-906.1(g), a trial court “shall inform the parent, guardian, or custodian that failure

or refusal to cooperate with the plan may result in an order of the court in a

subsequent permanency planning hearing that reunification efforts may cease.” N.C.

Gen. Stat. § 7B-906.1(g) (2015) (emphasis added).           However, despite the plain

language of Section 7B-906.1(g), a prior panel of this Court has held that a trial court

can cease reunification efforts at the first permanency planning hearing if necessary



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                                         Opinion of the Court



findings of fact were made that showed reunification would be unsuccessful or not in

the juvenile’s interests. In re: H.L., ___ N.C. App. ___, ___, 807 S.E.2d 685, 693

(2017).3 The trial court made findings that: Respondent is a danger to C.P.’s health

and safety; Respondent failed to take her medications properly; Respondent was

unable to feed or care for C.P.; C.P. did not feel safe with Respondent; C.P. was afraid

to go to sleep because of Respondent’s behavior; and Respondent abused medications

and used marijuana which impacted her ability to function and parent C.P. The trial

court also found that reunification efforts would be futile and Respondent was unable

to provide a safe and stable home for C.P. These findings support the trial court’s

conclusion that reunification efforts may be ceased, and we must affirm this portion

of the order despite the fact that such action is contrary to the plain language of

Section 7B-906.1(g).

       Respondent-mother next contends that the court erred by ordering a

permanent plan of guardianship with a relative without making a finding mandated

by N.C. Gen. Stat. § 7B-906.1(e)(1) (2015); namely, “[w]hether it is possible for the



       3  Respectfully, it appears that our Court in H.L. did not focus on Section 7B-906.1(g) in its
entirety. The second sentence of that section requires prior notice be provided to a parent before
reunification efforts may be ceased. Thus, the statutory language precludes eliminating reunification
efforts at the permanency planning hearing in this case, as appellant never received the mandated
notice. However, case law requires us to follow H.L. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different
case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned
by a higher court.”) This issue will need to be resolved through an en banc hearing with this Court, or
a decision from the North Carolina Supreme Court.


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                                   Opinion of the Court



juvenile to be placed with a parent within the next six months, and if not, why such

placement [with the parent] is not in the juvenile’s best interests.” Id. The guardian

ad litem and OCDSS concede that the order does not contain the mandated finding.

Although the trial court addressed Respondent-mother’s faults as a mother and the

fractured relationship she had with Carl, the court erred in not finding the key issues

of whether it is possible for the child to be returned to her within six months, and if

not possible, why placement of the child with Respondent-mother is not in the child’s

best interest.

      Respondent-mother next contends that the court erred by awarding

guardianship of Carl to a non-parent without finding that Respondent-mother was

an unfit parent or had acted inconsistently with her constitutionally protected

parental status. Respondent-mother concedes that she did not raise this issue in the

trial court but argues she did not have the opportunity.

      “[T]o apply the best interest of the child test in a custody dispute between a

parent and a non-parent, a trial court must find that the natural parent is unfit or

that . . . her conduct is inconsistent with a parent’s constitutionally protected status.”

In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009). This finding should

be made when the court is considering whether to award guardianship to a non-

parent. In re P.A., 241 N.C. App. 53, 66-67, 772 S.E.2d 240, 249 (2015). To preserve

the issue for appellate review, the parent must raise it in the court below. In re T.P.,



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                                  Opinion of the Court



217 N.C. App. 181, 186, 718 S.E.2d 716, 719 (2011) (citation omitted). However, for

waiver to occur the parent must have been afforded the opportunity to object or raise

the issue at the hearing. In re R.P., ___ N.C. App. ___, ___, 798 S.E.2d 428, 431

(2017). Here, although counsel had ample notice that guardianship with Chris was

being recommended, Respondent-mother never argued to the court or otherwise

raised the issue that guardianship would be an inappropriate disposition on a

constitutional basis. We conclude Respondent-mother waived appellate review of this

issue.

                                     Conclusion

         Accordingly, we affirm the portion of the trial court’s order that ceases

reunification efforts. We reverse the adjudication that Carl is a dependent juvenile,

and vacate the order for failing to order reunification as a concurrent permanent plan

and failing to make required findings regarding guardianship with Chris. Because

we reverse and remand, we need not address the issue of visitation, but we note that

the trial court made appropriate findings pursuant to N.C. Gen. Stat. § 7B-905.1. We

remand for findings consistent with this opinion.

         AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND

REMANDED.

         Judge ELMORE concurs.

         Judge ARROWOOD concurs in result only.



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