               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA19-690

                                  Filed: 16 June 2020

Wilkes County, No. 17 JA 70

IN THE MATTER OF: A.N.T.



        Appeal by respondent from order entered 17 April 2019 by Judge Jeanie R.

Houston in Wilkes County District Court. Heard in the Court of Appeals 26 May

2020.


        Erika Leigh Hamby for petitioner-appellee Wilkes County Department of Social
        Services.

        Parker Poe Adams & Bernstein LLP, by Tiffany M. Burba and Catherine G.
        Clodfelter, for guardian ad litem.

        Forrest Firm, P.A., by Patrick S. Lineberry for respondent-appellant.


        TYSON, Judge.


        Respondent appeals from the trial court’s order placing his daughter into a

guardianship with a nonrelative. We vacate the order for nonrelative guardianship

and remand.

                        I. Factual and Procedural Background

        Respondent is a federal inmate currently serving a sentence for manufacturing

methamphetamine. Respondent has been incarcerated since 2010. His wife was

released from federal prison in late 2016 after serving her sentence for manufacturing
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methamphetamine. Their daughter, A.N.T. (“Alexis”) was born in 2009 and has not

lived with either parent since birth. See N.C. R. App. P. 42(b) (pseudonyms are used

to protect the identity of the juveniles). Alexis was placed to live with her maternal

grandparents.

      DSS had previously been involved with these grandparents after receiving

reports that drugs were being sold out of their home, and that Alexis’ uncle was a

pedophile and living in the home. On 8 June 2016, Wilkes County Department of

Social Services (“DSS”) filed a petition alleging abuse and neglect of Alexis by her

maternal grandparents. By the time of the filing of the petition, Alexis had been

moved into another family placement with her maternal great-grandparents.

      On 26 July 2016, Alexis was adjudicated as neglected and dependent as defined

in N.C. Gen. Stat. § 7B-101 (2019). Alexis remained in the care of her maternal great-

grandparents. Overnight and weekend visits were allowed with her paternal aunt,

Respondent’s sister.

      Alexis’ mother entered into a case plan with DSS in November 2016 upon her

release from prison.    The mother visited with Alexis under supervision.         The

permanent plan for the child was reunification with her mother. On 8 May 2017, the

court held a permanency planning hearing. By this date, Alexis’ mother had become

sporadic in her drug screens, and in maintaining housing and employment. The trial




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court ordered a primary permanent plan of reunification and a concurrent plan of

custody with an approved caregiver.

       Additional review hearings were held in August and October 2017.

Reunification of Alexis with her mother remained the primary plan, with custody

with an approved caregiver as the concurrent plan. At the 30 October 2017 hearing,

the trial court specifically allowed Alexis to receive letters from Respondent through

DSS.

       DSS received reports of physical and sexual abuse and illegal drug use by

another relative living in the maternal great-grandparents’ home.         The great-

grandparents were not transporting Alexis to medical or therapy appointments. DSS

concluded Alexis’ maternal great-grandparents were no longer able to adequately

care for her. In February 2018, Alexis was moved to a nonrelative placement with

her second-grade teacher and her teacher’s husband (“Mr. and Mrs. L.”). Alexis’

mother consented to this placement.

       After a permanency planning hearing held 19 March 2018, the district court

relieved DSS of further reunification efforts with Respondent, who remained

incarcerated in a federal prison, and continued the primary permanent plan of

reunification with the mother. Two relatives were identified as potential placements

for Alexis: a second cousin and a paternal aunt.




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        Alexis indicated she did not wish to live with her paternal aunt. Concerns had

arisen earlier that the paternal aunt’s children had engaged in sexual conduct with

Alexis. Alexis’ mother was re-incarcerated and subsequently released in August

2018.

        Respondent’s mother (“Mrs. T.”) was recognized as a potential placement for

Alexis for the first time at the 29 October 2018 permanency planning hearing. An

adult son with a criminal record was reported to be living in the paternal

grandparent’s home. The court heard testimony from a DSS social worker and from

Respondent’s mother.

        The trial court found Alexis was happy in Mr. and Mrs. L.’s home, she wanted

to stay with them, and Mr. and Mrs. L. were agreeable to facilitating and maintaining

a relationship with Alexis and her family. The court found Alexis had stated she

wanted to stay with Mr. and Mrs. L., and did not want to be placed back into her

maternal grandmother’s home.

        The court also found Respondent’s release date from custody was June 2020.

Alexis had refused a letter from her father and stated she did not know him. As

noted, the trial court had specifically allowed Alexis to receive letters from

Respondent through DSS at the 30 October 2017 hearing. Respondent had offered to

“sign [his] rights over” to his daughter for her placement with his sister in June 2016.




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      The court found Respondent’s mother was interested in opening her home for

Alexis to live with her and her husband. The court’s order includes a conclusion that

DSS shall “explore the homes of the child’s paternal grandmother’s and her current

foster home as a permanent placement.” The record does not contain any home study

for Respondent’s mother.

      Alexis’ primary permanent plan was modified to custody with an approved

caregiver and the secondary plan to be guardianship. Respondent failed to appeal

from this order.

      At the permanency planning hearing on 18 February 2019, the court heard

testimony from Mrs. T. about the condition of her home, her desire to have Alexis

placed in her care, and that Respondent had indicated it was his desire as well. Mrs.

T. testified and the district court noted that her other adult son was no longer living

in her home. Following this hearing, the court entered a permanency planning order

on 17 April 2019 granting guardianship of Alexis to Mr. and Mrs. L. Respondent

timely appealed.

                                   II. Jurisdiction

      This Court possesses jurisdiction over Respondent’s appeal from an order

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

(2019).

                                      III. Issues



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      Respondent argues the trial court erred in granting guardianship to

nonrelatives and in forbidding him to have visitation with Alexis while he was

incarcerated.

                               IV. Standard of Review

      This Court’s “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 D.S., 260 N.C. App. 194, 196, 817 S.E.2d 901, 904 (2018) (internal quotation marks

and citation omitted). “The trial court’s conclusions of law are reviewable de novo on

appeal.” In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (internal

quotation marks and citation omitted).

                                      V. Analysis

                                   A. Guardianship

      Respondent challenges the trial court’s grant of guardianship of Alexis to

nonrelatives. Respondent asserts the statutes and precedents require the trial court

to make specific findings of placement with his mother, Alexis’ grandmother, before

it could consider nonrelatives, Mr. and Mrs. L. We agree.

      The district 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,”

in determining “out-of-home” care for a juvenile. N.C. Gen. Stat. § 7B-903(a1) (2019)



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(emphasis supplied). The statute further directs that “[i]f 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.” Id.

(emphasis supplied).

      N.C. Gen. Stat. § 7B-906.1(j) requires the court to “verify that the person

receiving custody or being appointed as guardian of the juvenile understands the

legal significance of the placement or appointment and will have adequate resources

to care appropriately for the juvenile.” N.C. Gen. Stat. § 7B-906.1(j) (2019).

Consistent with N.C. Gen. Stat. § 7B-903, the court may consider the guardian to

have “adequate resources” when the guardian has “provided a stable placement for

the juvenile for at least six consecutive months.” Id.

      The guardian ad litem asserts N.C. Gen. Stat. § 7B-903 provides options and

guidance to a court when a child must be removed from the home. See N.C. Gen. Stat.

§ 7B-903(a1). The guardian ad litem notes Alexis had been living outside of her

parents’ home since birth, was placed in two maternal relatives’ homes, and was

moved from both.

                                       1. In re D.S.

      “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



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placing [the juvenile] with [her relatives] unless it found that such a placement was

not in [the juvenile’s] best interests.” In re D.S., 260 N.C. App. at 197, 817 S.E.2d at

904 (internal quotation marks and citation omitted). We have further held “[f]ailure

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).

      In the case of In re D.S., the trial court had made no findings indicating it had

considered placement of the child with her paternal grandmother, but concluded

placement with her was not in the child’s best interest. In re D.S., 260 N.C. App. at

200, 817 S.E.2d at 906. In that case, the trial court made none of the “findings of fact

or conclusions of law resolving this issue, which it [was] statutorily required to do.”

Id.

      In that case, the district court specifically found that both parents opposed

appointment of a nonrelative guardian and had expressed preference for the child to

be placed with the maternal grandmother. The court made no finding indicating the

grandmother’s home had been investigated, considered, or rejected as a placement

option for D.S. Id.

      Here, the trial court was aware of the application and desire of Respondent’s

mother as a relative placement for Alexis. The record and the court’s order show it

heard testimony from Mrs. T. and viewed photos of her home at the October 2018 and



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the 19 February 2019 hearings. She testified Respondent desired for Alexis to be

placed into her care. At the October 2018 hearing, the trial court had ordered DSS

to “explore the home[] of the child’s paternal grandmother.” No DSS home study

appears in the record.

      In support of its decision to award guardianship to Mr. and Mrs. L, the court

made the following findings of fact.

             14. It is not possible for the child to be returned to a parent
             immediately or within the next six (6) months.

             15. There are relatives of the child who are willing and able
             to provide proper care and supervision in a safe home.
             [Alexis] was residing in the home of her maternal great
             grandparents, [Mr. and Mrs. C.,] but she was moved due to
             [Alexis’] uncle [M.C.’s] drug use and he was living with [Mr.
             and Mrs. C.]. [M.C.] has not been approved by Wilkes DSS
             to live in the home with [Alexis]. The child’s paternal
             grandmother . . . is interested in becoming a placement for
             [Alexis].

             16. The child’s paternal grandmother, [Mrs. T.], lives on
             Yellow Banks Road in North Wilkesboro, N.C. in a 3-
             bedroom home. She and her husband are disabled and they
             draw $1,200.00 per month. [Mrs. T.] has not seen [Alexis]
             in approximately 2 years. [Mrs. T.] has a son [B.T.], who
             lived in her home and he works seasonally doing roofing,
             but he has a criminal record. [Mrs. T.] stated that [B.T.] no
             longer lives in her home. [Mrs. T.] has presented photos in
             the past of her home to the court as Father’s Exhibit 1 and
             these were at that time admitted into evidence and
             incorporated herein as Findings of Fact.

             17. There are non-relative kin who are willing and able to
             provide proper care and supervision for the child in a safe
             home, namely the child’s current placement.


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      ...

      21. [Mr. and Mrs. L.] were present at the hearing. Pursuant
      to N.C.G.S. § 7B-600(b), the Court questioned [Mr. and
      Mrs. L.], and [Mr. and Mrs. L.] understand the legal
      significance of being appointed the minor child’s guardian,
      and they have adequate resources to care appropriately for
      the minor child, and are able and willing to provide proper
      care and supervision of the minor child in a safe home.

      22. The minor child has been placed with [Mr. and Mrs. L.]
      since February 2, 2018, and it is in the minor child’s best
      [interest] that she be placed in guardianship with [Mr. and
      Mrs. L.]. [Mr. and Mrs. L.] are committed to caring for the
      minor child and providing guardianship, and it is unlikely
      that the respondent parents will be able to care for the
      minor child within the next six months. The minor child
      has been doing well in this placement and this placement
      is in her best interests.

Based upon these findings of fact, the trial court concluded:

      1. That, pursuant to N.C.G.S. § 7B-600(b), the Court
      questioned [Mr. and Mrs. L.], and Mr. and Mrs. L[]
      understand the legal significance of being appointed the
      minor child’s guardian, and they have adequate resources
      to care appropriately for the minor child, and are able and
      willing to provide proper care and supervision of the minor
      child in a safe home.

      2. That the minor child has been placed with [Mr. and Mrs.
      L.] since February 2, 2018, and it is in the minor child’s
      best [interest] that she be placed in guardianship with [Mr.
      and Mrs. L.]. Mr. and Mrs. L[]. are committed to caring for
      the minor child and providing guardianship, and it is
      unlikely that the respondent parents will be able to care for
      the minor child within the next six months. The minor
      child has been doing well in this placement and this
      placement is in her best interests.


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       The trial court’s order memorializing the 18 February 2018 hearing is silent

regarding whether the court had considered and rejected Mrs. T. as a willing and able

relative placement for Alexis. No testimony or records produced at this hearing show

the results of any DSS home study of Alexis’ paternal grandmother’s home.

       The trial court made no finding that Respondent had expressed his desire for

his daughter to be placed to live with his mother, or that it was not in Alexis’ best

interests to be in the care and custody of her paternal grandmother. As in the case

of D.S., the court “never made any findings of fact or conclusions of law resolving this

issue, which it is statutorily required to do before placing [Alexis] with a non-

relative.” Id.

                                          2. In re E.R.

       Respondent also cites the case of In re E.R., 248 N.C. App. 345, 795 S.E.2d 103

(2016). In that case the children, E.R. and E.R., were placed in a nonrelative

guardianship. Id. at 347, 795 S.E.2d at 104. The district court determined it was in

the best interests of E.R. and E.R. to be placed with a nonrelative guardian without

making any reference to its consideration of placement with the maternal

grandmother. Id. at 351, 795 S.E.2d at 106.           The court’s only mention of both

children’s grandmother was that she “may continue to be used as a resource for

childcare of [the] minor children.” Id.




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      In the case at bar, Respondent’s expressed desire as a parent was for his

daughter to live with his mother. Mrs. T. testified she was willing and able to care

for Alexis and offered her home. The trial court referenced Respondent’s mother’s

desire to be a placement for Alexis and the court listed the number of bedrooms in

her home and the disability benefits she and her husband draw each month. Mrs. T.

also testified her other son no longer lives in their home. This testimony is evidence

to consider Mrs. T.’s ability to care for and provide a safe environment for eleven-

year-old Alexis.

                                     3. In re L.L.

      This Court, in the case of In re L.L., incorporated the requirement set forth in

N.C. Gen. Stat. § 7B-903, that a trial court “shall” first give consideration to

placement of a juvenile with relatives, before it may order the juvenile into placement

with a nonrelative by a permanency planning order entered pursuant to N.C. Gen.

Stat. § 7B-906. In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005), abrogated on

other grounds by In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (2008). Section 7B-906

was 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 by this Court in In re L.L., contained

the mandatory language authorizing dispositions under N.C. Gen. Stat. § 7B-903. In

re L.L., 172 N.C. App. at 701, 616 S.E.2d at 399.




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       Current section 7B-906.1(i) contains the same reference to the same

mandatory language of N.C. Gen. Stat. § 7B-903. Id. This Court’s holding in In re

L.L. remains controlling on this issue. Compare N.C. Gen. Stat. § 7B-906(d) (2003)

with N.C. Gen Stat. § 7B-906.1(i) (2019). “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. at 141-42, 693 S.E.2d at 660 (citation

omitted).

       Our statutes and precedents mandate “a preference, where appropriate, to

relative placements over non-relative, out-of-home placements.” In re T.H., 232 N.C.

App. 16, 29, 753 S.E.2d 207, 216 (2014); see also In re A.S., 203 N.C. App. at 141, 693

S.E.2d at 660 (recognizing our statutes “direct a juvenile court to consider placement

with a relative as a first priority”).

       As in the cases of In re D.S., In re E.R., and In re L.L., the trial court made no

finding rejecting Mrs. T. as both willing and able to provide proper care and

supervision in a safe home for her granddaughter. See In re D.S., 260 N.C. App. at

197, 817 S.E.2d at 904; In re E.R., 248 N.C. App at 351, 795 S.E.2d at 106; In re L.L.,

172 N.C. App. at 703, 616 S.E.2d at 400.

       The order appealed from is inconsistent with the statutes and numerous

precedents mandating placement of a juvenile with a suitable relative prior to

considering a nonrelative. The court’s order ignored the statutory requirements that



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it “shall order placement” with Mrs. T. over Mr. and Mrs. L. See N.C. Gen. Stat. § 7B-

903(a1) (“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” (emphasis supplied)).

      The court’s order placing Alexis in the legal guardianship of Mr. and Mrs. L. is

vacated and this matter is remanded for a new permanency planning hearing where

the trial court is to follow the statutes and precedents to make the required statutory

findings of fact and conclusions of law. See id.

                                     B. Visitation

      Respondent asserts the trial court’s prohibition of visitation with Alexis while

he is incarcerated was improper.        He argues the trial court did not make a

determination whether visitation would be in Alexis’ best interest.

      During the pendency of this case, N.C. Gen. Stat. § 7B-905.1(a) provided “[a]n

order that removes custody of a juvenile from a parent, guardian, or custodian or that

continues the juvenile’s placement outside the home shall provide for appropriate

visitation as may be in the best interests of the juvenile consistent with the juvenile’s

health and safety.    The court may specify in the order conditions under which

visitation may be suspended.” N.C. Gen. Stat. § 7B-905.1(a) (2017) (emphasis

supplied).



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       At the hearing from which the April 2019 order was appealed, Respondent did

not seek a modification of the prohibition of prison visitation. Respondent’s counsel

attended every hearing in this matter.         The guardian ad litem and DSS assert

Respondent has waived his right to argue the trial court erred by forbidding him

visitation while he was incarcerated because he had multiple opportunities to object

or seek modification and failed to do so.

       It is unnecessary to determine whether Respondent has waived this argument.

Respondent is scheduled for release from incarceration in June 2020. The trial court’s

order provides for Respondent’s visitation with his daughter upon release from

prison. Subject to the constitutional protection to “the interest of parents in the care,

custody, and control of their children,” disposition and visitation orders are always

subject to review and revision. See Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d

49, 56 (2000) (“The liberty interest at issue in this case—the interest of parents in the

care, custody, and control of their children—is perhaps the oldest of the fundamental

liberty interests recognized by this Court.”); N.C. Gen. Stat. § 7B-905.1(d) (2019) (“If

the court retains jurisdiction, all parties shall be informed of the right to file a motion

for review of any visitation plan entered pursuant to this section. Upon motion of any

party and after proper notice and a hearing, the court may establish, modify, or

enforce a visitation plan that is in the juvenile’s best interest.”); N.C. Gen. Stat. § 7B-

1000(a)-(b) (2019) (“Upon motion in the cause or petition, and after notice, the court



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may conduct a review hearing to determine whether the order of the court is in the

best interests of the juvenile, and the court may modify or vacate the order in light of

changes in circumstances or the needs of the juvenile [and] the jurisdiction of the

court to modify any order or disposition made in the case shall continue during the

minority of the juvenile, until terminated by order of the court, or until the juvenile

is otherwise emancipated.”).

      Since we are vacating the trial court’s permanency planning order entered 17

April 2019 and remanding for a new permanency planning hearing, it is unnecessary

to reach the merits of Respondent’s argument. We dismiss without prejudice to

Respondent to raise the visitation issue after release from incarceration.

                                    VI. Conclusion

      Our statutes and precedents clearly mandate relative placements of a juvenile

to maintain familial bonds. The statutes and precedents require and presume the

juvenile’s best interest is served when placed with a family member.

      The district court is statutorily required to consider and place Alexis with a

family member, who is willing and able to provide a safe home for her, before

consideration of a juvenile’s placement with a nonrelative. See N.C. Gen. Stat. § 7B-

903(a1). The court erred when it disregarded Alexis’ grandmother’s and Respondent’s

wishes and proceeded to order guardianship with a nonrelative.




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      The trial court’s award of guardianship of Alexis to Mr. and Mrs. L. is vacated

and the case is remanded for a new permanency planning hearing consistent with the

statutes, precedents, and changed conditions. It is so ordered.

      VACATED AND REMANDED.

      Judges BRYANT and YOUNG concur.




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