In re K.P.
Date Filed2022-12-16
Docket251A21
Cited0 times
StatusPublished
Syllabus
Whether the trial court properly verified that a juvenile's permanent custodial placement (1) understood the legal significance of the child's placement within the home and (2) possessed the appropriate resources to serve as a permanent placement. Whether the trial court properly eliminated reunification as a permanent plan.
Full Opinion (html_with_citations)
IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-128
No. 251A21
Filed 16 December 2022
IN THE MATTER OF: K.P.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 278 N.C. App. 42, 2021-NCCOA-268, vacating an order entered
on 21 July 2020 by Judge Christopher B. McLendon in District Court, Hyde County,
and remanding for further findings. Heard in the Supreme Court on 14 February
2022.
Rodman, Holscher, Peck & Edwards, P.A., by Jacinta D. Jones, for petitioner-
appellant Hyde County Department of Social Services.
Keith Karlsson for respondent-appellee Guardian ad Litem.
J. Thomas Diepenbrock for respondent-appellee mother.
MORGAN, Justice.
¶1 Petitioner appeals from a decision in the Court of Appeals which vacated a trial
court order eliminating reunification as a permanent plan and ceasing further review
hearings in a neglect and dependency case concerning the son of respondent-mother.
The trial court entered the order at issue after it found that an alternate permanent
plan of custody with a court-approved caretaker had been achieved and after the trial
court had received evidence tending to show that the court-approved caretakers
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understood the legal significance of the juvenile’s placement in their home. Upon
appeal from respondent-mother, the Court of Appeals vacated the trial court’s
permanency planning order and remanded the case for further findings of fact. In re
K.P., 278 N.C. App. 42, 2021-NCCOA-268.
¶2 Because the trial court correctly found that a permanent plan had been
achieved in this case as an alternative to reunification, and because the trial court
properly verified that the juvenile’s court-approved caretakers understood the legal
significance of the juvenile’s placement with them and that they possessed adequate
resources to care appropriately for the juvenile, we reverse the portions of the Court
of Appeals opinion that found error in these portions of the trial court’s order.
Furthermore, we leave undisturbed the portion of the Court of Appeals opinion
remanding the matter to the trial court to make the findings which are required by
N.C.G.S. § 7B-906.1(n).
I. Factual and Procedural Background
¶3 On 22 March 2018, the Hyde County Department of Social Services (DSS) filed
a juvenile petition which alleged that a three-month-old child named Kenneth1 was
a neglected and dependent juvenile. The supporting documentation alleged, as the
trial court later found to be true, that Kenneth’s putative father, George Phillips, had
1 Pseudonyms are used for the juvenile and his family members to protect the identity
of the juvenile in conformance with the regular practice of this Court.
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returned home early on 17 March 2018 to find his wife—respondent-mother—in bed
with a man named Don Keller. A domestic violence incident ensued in which Phillips
and Keller struggled over a knife in the presence of Kenneth and Kenneth’s siblings2
who all resided in the home with respondent-mother and her husband. As a result of
the fracas, Keller was hospitalized and Phillips was arrested and charged with
assault with a deadly weapon in the presence of a minor, along with other serious
charges. Respondent-mother was charged with simple assault. Respondent-mother
made arrangements for Kenneth to reside with his maternal aunt prior to
respondent-mother’s arrest. Kenneth stayed with his maternal aunt from 22 March
2018 until 22 May 2018, when the trial court determined that Kenneth would reside
with Phillips’s father, George Phillips, Sr., and his wife Mary Phillips, because the
couple offered “a safe and stable living environment for the juvenile[ ].”
¶4 In light of the events which precipitated the removal of Kenneth and his
siblings from the household in which respondent-mother and her husband resided,
Phillips questioned Kenneth’s paternity, prompting the trial court at a nonsecure
custody hearing on 8 August 2018 to order respondent-mother’s husband to submit
to paternity testing. Kenneth remained in the custody of Phillips, Sr. and Mrs.
Phillips. On 17 October 2018, the results of the paternity test revealed that Phillips
was not the biological father of Kenneth. The trial court ordered Keller to submit to
2 There are no matters regarding Kenneth’s siblings which are at issue in this case.
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paternity testing after respondent-mother identified him as a potential father of
Kenneth. In January 2019, Keller was determined to be Kenneth’s biological father.
¶5 Having discovered the lack of a biological relationship between Phillips and
the juvenile Kenneth, the trial court held its first adjudication and disposition
hearing concerning the underlying neglect and dependency petitions on 10 December
2018. At this hearing, the trial court adjudicated Kenneth to be a neglected juvenile
because Kenneth “would reside in an injurious environment if returned to either
[parent’s] home[ ].” The trial court decreed that respondent-mother needed to address
the issues which rendered her residence unsafe for Kenneth by participating in
domestic violence counseling, participating in anger management classes,
maintaining stable housing, and obtaining a valid driver’s license with accompanying
safe transportation. The trial court also noted its concerns about substance abuse
that may have occurred in respondent-mother’s home. Consistent with its earlier
determination that Phillips, Sr. and Mrs. Phillips would provide a “safe and stable
living environment” for the child, the trial court found that the home of Kenneth’s
grandparents by marriage3 constituted “the least restrictive, most family like
placement available” and that the “child’s physical and mental health are good”
because of the couple’s provision of adequate care for Kenneth. These findings were
3 “Grandparents” by virtue of the legal status of the child Kenneth’s mother—
respondent-mother here—and Phillips as wife and husband.
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consistent with earlier findings made by the trial court concerning the
appropriateness of Kenneth’s placement in the Phillips, Sr. home. These earlier
findings had been entered in each of the trial court’s orders continuing Kenneth’s
nonsecure custody with DSS which had been filed since the juvenile’s placement in
the Phillips, Sr. home. The trial court opted to maintain Kenneth in the custody of
Phillips, Sr. and Mrs. Phillips despite the discovery of the lack of the presumed father-
son relationship between Phillips and the juvenile Kenneth. Reunification with
respondent-mother was set as the permanent plan.
¶6 At the permanency planning review hearing conducted on 25 March 2019, the
trial court continued Kenneth’s nonsecure custody in the home of Phillips, Sr. and
Mrs. Phillips, while adding a concurrent permanent plan of custody with a relative to
the existing plan of reunification with respondent-mother. Respondent-mother and
Phillips, who had separated for a period of time, resumed their marital relationship
in April 2019. In June 2019, Phillips, Sr. and Mrs. Phillips were serving as the
placement for Kenneth and all three of his siblings. Mrs. Phillips reported that the
household was experiencing behavioral issues with the children and financial
hardship and stated that it would be preferable for two of the four children to be
placed in another home. In response, the trial court ordered that Kenneth and one of
his siblings be moved to the home of his “paternal step great grandparents” on 17
July 2019. Given respondent-mother’s revived relationship with Phillips, Jr. and the
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couple’s acquisition of appropriate housing, the trial court ordered the
commencement of a trial home placement with Kenneth by 20 September 2019.
However, a DSS investigation in October 2019 revealed that both respondent-mother
and Phillips, Jr. had continued to commit acts of domestic violence upon one another
in the presence of Kenneth and the other children during the trial home placement.
The trial court terminated the trial home placement, removed Kenneth from the
home once again, and placed Kenneth in the care of his maternal aunt in a nearby
county. Kenneth was returned to the home of Phillips, Sr. and Mrs. Phillips after the
child’s temporary stay with his maternal aunt.
¶7 At a permanency planning review hearing on 13 January 2020, the trial court
found that, except for having completed anger management and parenting classes as
directed, respondent-mother had failed to successfully address any of the concerns
which had resulted in Kenneth’s ongoing removal from the home. Respondent-mother
continued to be both the victim and perpetrator of domestic violence and had vacated
the home she had temporarily shared with Phillips during their brief marital
reconciliation in favor of moving to a two-bedroom apartment with her mother in
Virginia. Respondent-mother did not have stable employment, had yet to obtain a
valid driver’s license, and had refused to submit to drug screens since the termination
of the trial home placement. Despite her participation in services offered by DSS,
respondent-mother had failed to accomplish the directives which were required to
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reunite with Kenneth and therefore had “acted inconsistent with the juvenile’s health
and safety.” The trial court maintained the goal of reunification but revised the
permanent plan options to include “custody to a court-approved caretaker” in addition
to the existing permanent plans of reunification and custody to a relative.
¶8 At a 3 June 2020 permanency planning review hearing, the trial court received
testimony that respondent-mother had obtained a driver’s license without an
accompanying mode of transportation and that she had ended her active involvement
with Phillips. Otherwise, respondent-mother persisted in her failure to make any
progress in obtaining appropriate housing, obtaining a verifiable or consistent source
of income, or participating in domestic violence counseling after such discord
reoccurred during the trial home placement. Respondent-mother expressed her view
that further domestic violence counseling would be “irrelevant.” Respondent-mother
had only submitted to one out of the seven drug screens scheduled for her by DSS
since December of 2019.
¶9 Meanwhile, Kenneth continued to thrive in his placement with Phillips, Sr.
and Mrs. Phillips over the succeeding months, and the couple indicated a desire to
serve as the child’s permanent custodians. These grandparents by marriage provided
appropriate care for Kenneth while maintaining a good working relationship with
both respondent-mother and respondent-father Keller. In her testimony at the
permanency planning review hearing held on 3 June 2020, respondent-mother
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acknowledged that the paternal step-grandmother by marriage Mrs. Phillips had
done an exemplary job in taking care of Kenneth. DSS social worker Alisha Holloway
likewise testified that Kenneth was “doing amazing” in the Phillips, Sr. home, adding
that Phillips, Sr. and Mrs. Phillips had expressed a desire to accept legal custody of
the child. In related fashion, some of the testimony which Phillips, Sr. offered at the
hearing was as follows:
[DSS Attorney]. And do you recall having
conversations with the Department regarding taking
custody of [Kenneth]?
[George Phillips, Sr.]. Yes, ma’am.
Q. And are you and your wife willing to do that at
this time?
A. Yes, ma’am.
Q. And are you and your wife willing to provide
permanence for [Kenneth] through a custody order?
A. Yes, ma’am.
Q. Now, how, if at all, are you employed, Mr.
[Phillips]?
A. I’m employed with Cherry Farm and Seed.
....
Q. And if I may ask, Mr. [Phillips], what is an
estimate of your annual salary?
A. It depends year to year. I think last year was fifty-
six, I think, something like that.
Q. And since having [Kenneth] in your home, have
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you and your wife experienced any difficulty in financially
caring for him?
A. No.
Q. Do you anticipate having any financial difficulty
in continued care of [Kenneth]?
A. No; no, ma’am.
¶ 10 On 21 July 2020, the trial court entered an order pursuant to the 3 June 2020
permanency planning review hearing in which the trial court found that respondent-
mother’s “lack of progress and the history of the juvenile’s case” rendered the
permanent plan of custody to a court-approved caretaker as the most appropriate
plan for Kenneth. The trial court reasoned that Phillips, Sr.’s and Mrs. Phillips’s
“commitment to serving as a permanent placement for [Kenneth],” combined with the
couple’s positive performance as temporary caretakers for the child, supported the
conclusion that it was appropriate that legal and physical custody of the juvenile
Kenneth be granted to them on a permanent basis. The trial court noted that the
Phillips, Sr. household possessed the ability to financially support Kenneth without
substantial assistance from outside sources, and that respondent-father Keller had
consented to the joint recommendation of DSS and Kenneth’s guardian ad litem that
the paternal grandfather and the paternal step-grandmother be granted permanent
custody. The trial court thereupon awarded legal and physical custody to Phillips, Sr.
and Mrs. Phillips after concluding that Kenneth’s best interests would be served by
establishing such a custody arrangement. Because custody to a court-approved
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caretaker was one of three enumerated primary permanent plans which were
identified and pursued in the present case, and since custody was being granted to
court-approved caretakers with a demonstrated ability and willingness to provide a
safe and stable home for Kenneth, the trial court concluded that a primary permanent
plan had been achieved through the entry of the 21 July 2020 order. Because a
primary permanent plan was achieved through the award of legal and physical
custody to Phillips, Sr. and Mrs. Phillips, further efforts towards the achievement of
the other two primary permanent plans of reunification and custody to a relative
became unnecessary. As a result, the 21 July 2020 trial court order effectively
eliminated reunification as a permanent plan.
¶ 11 Respondent-mother appealed the 21 July 2020 order to the Court of Appeals,
asserting that (1) the trial court had eliminated reunification as a permanent plan
without making findings that respondent-mother claims were required by N.C.G.S.
§§ 7B-906.2(b) and (d), and 7B-906.1(d)(3); (2) the trial court had failed to verify that
the court-approved caretakers Phillips, Sr. and Mrs. Phillips understood the legal
significance of the juvenile Kenneth’s placement with them as required by N.C.G.S.
§ 7B-906.1(j) before being awarded custody of the child; and (3) the trial court failed
to make findings required by N.C.G.S. § 7B-906.1(n) before ceasing further
permanency planning review hearings.
¶ 12 In addressing the first issue, the Court of Appeals majority agreed with
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respondent-mother that the trial court erred by eliminating reunification as a
primary or secondary permanent plan without first making required findings of fact.
The majority explained that the trial court’s conclusion following the 3 June 2020
final permanency planning review hearing that the “primary permanent plan for the
juvenile . . . ha[d] been achieved through the entry of th[e] [o]rder” was directly
refuted by the trial court’s findings of fact in the order because the trial court had
previously established custody to a relative as the “primary permanent plan,” while
custody to a court-approved caretaker had been designated by the trial court as one
of the “concurrent permanent plans.” In re K.P., 2021-NCCOA-268, ¶ 20. According
to the Court of Appeals majority, the primary permanent plan of custody to a relative
could not have been achieved here by placing Kenneth with Phillips, Sr. and Mrs.
Phillips because Phillips was not Kenneth’s biological father. Therefore Phillips, Sr.
and Mrs. Phillips were non-relatives instead of relatives. Id. As a result, the Court of
Appeals majority opined that, as previously “made clear” by that court, “when a
district court eliminates reunification as either a primary or secondary permanent
plan, it must make findings pursuant to both N.C.[G.S.] §§ 7B-906.2(b) and (d).” Id.
¶ 18. The lower appellate court majority therefore determined that the trial court’s
failure to make sufficient findings pursuant to N.C.G.S. § 7B-906.2(d) regarding
respondent-mother’s “degree of success or failure toward reunification,” and its
failure to make findings pursuant to N.C.G.S. §§ 7B-906.2(b) and 7B-906.1(d)(3) that
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“reunification efforts clearly would be unsuccessful or would be inconsistent with the
juvenile’s health or safety” and whether reunification efforts would be inconsistent
with the juvenile’s “need for a safe, permanent home within a reasonable period of
time,” in combination with the trial court’s erroneous declaration that the primary
permanent plan had been achieved, required that the trial court’s order ceasing
reunification efforts be vacated and the case be remanded to the trial court for further
proceedings. Id. ¶ 21.
¶ 13 The Court of Appeals majority also agreed with respondent-mother regarding
her contention that the trial court erred in failing to verify that Phillips, Sr. and Mrs.
Phillips understood the legal significance of taking permanent custody of Kenneth.
According to the lower appellate court, the evidence that (1) Phillips, Sr. and Mrs.
Phillips did an excellent job taking care of Kenneth as the juvenile’s court-appointed
caretakers; (2) the couple were willing to serve as a permanent placement for the
child; and (3) the household could financially support Kenneth without substantial
outside assistance was insufficient to “show the trial court received and considered
reliable evidence that the guardian or custodian had adequate resources and
understood the legal significance of custody or guardianship.” Id. ¶ 23 (quoting In re
J.D.M.-J., 260 N.C. App. 56, 65 (2018)). The majority vacated the trial court’s order
on this ground also. Id. ¶ 24.
¶ 14 The Court of Appeals dissent disagreed with the majority on these issues. As
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for the trial court’s elimination of reunification as a permanent plan, the dissenting
judge noted that N.C.G.S. § 7B-906.2(b) allowed for the cessation of reunification
efforts if the trial court found either that reunification would be inconsistent with the
health and safety of the juvenile or that any permanent plan had been achieved,
regardless of whether the fulfilled permanent plan was labeled “primary” or
otherwise. Id. ¶ 34 (Jackson, J. concurring in part and dissenting in part). Because a
permanent plan had been achieved through the entry of the trial court’s June 2020
order, the dissent further reasoned that the trial court was not required to find that
reunification would be inconsistent with the health or safety of the juvenile Kenneth.
Id. ¶¶ 32, 38. In addressing the position of the Court of Appeals majority that the
trial court erred in failing to make the required statutory findings under N.C.G.S. §
§§ 7B-906.2(b), 7B-906.2(d), and 7B-906.1(d)(3) regarding the status of reunification,
the dissent identified and evaluated a number of the trial court’s findings which the
dissent considered to be sufficient to satisfy the findings mandated by the cited
statutes. In the dissent’s view, the trial court addressed all of the necessary
considerations and entered all of the necessary findings to properly eliminate
reunification as a permanent plan. Id. ¶ 41. Secondly, in responding to the Court of
Appeals majority decision that the trial court failed to verify that Phillips, Sr. and
Mrs. Phillips understood the legal significance of Kenneth’s permanent placement in
their home, the dissent opined that pertinent appellate case law holds that N.C.G.S.
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§ 7B-906.1(j) is satisfied in this regard if the trial court received and considered
evidence including, “inter alia, testimony from the potential guardian of a desire to
take guardianship of the child, . . . and testimony from a social worker that the
potential guardian was willing to assume legal guardianship.” Id. ¶ 44 (quoting In re
J.D.M.-J., 260 N.C. App. at 68). The dissenting opinion went on to cite transcript
passages and to summarize other testimony from the 3 June 2020 permanency
planning review hearing, along with the trial court’s resulting determinations, and
expressed the belief that there was compliance at the trial court level with N.C.G.S.
§ 7B-906.1(j). Id. ¶¶ 47–48. As for whether the trial court verified that the couple had
adequate resources to care for Kenneth, the dissent observed that the statute itself
establishes that “[t]he fact that the prospective custodian or guardian has provided a
stable placement for the juvenile for at least six consecutive months is evidence that
the person has adequate resources.” Id. ¶ 49 (quoting N.C.G.S. § 7B-906.1(j) (2019)).
The dissenting judge recognized that Kenneth had resided in the court-approved
caretakers’ household of Phillips, Sr. and Mrs. Phillips for seven consecutive months,
and that Phillips, Sr. offered uncontradicted testimony regarding the household’s
ability to financially support Kenneth without any difficulty and that the couple had
been financially caring for the child in this manner. Id. ¶¶ 50, 51.
¶ 15 With regard to the third issue, the trial court’s lack of compliance with
N.C.G.S. § 7B-906.1(n), DSS and Kenneth’s guardian ad litem conceded before the
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Court of Appeals that the trial court failed to make the findings which were required
to cease further review or permanency planning hearings under that provision. Given
the concession made by DSS and the guardian ad litem, the Court of Appeals dissent
agreed with the majority that the trial court failed to make the required findings
under N.C.G.S. § 7B-906.1(n) upon the trial court’s determination that further review
hearings would end in light of the trial court’s 21 July 2020 order. Id. ¶¶ 27 (majority
opinion), 29 (Jackson, J., concurring in part and dissenting in part). Otherwise, the
dissent disagreed with the majority’s resolution of this case.
¶ 16 Petitioner DSS timely filed notice of appeal based on the divided decision of
the Court of Appeals.
II. Analysis
¶ 17 DSS and the guardian ad litem for the juvenile Kenneth challenge the
determination of the Court of Appeals majority that the trial court’s 21 July 2020
order failed to contain (1) the findings necessary to eliminate reunification as a
permanent plan, and (2) the verifications required to award custody of Kenneth to
persons other than the child’s parents. As a fundamental premise, we stated in In re
L.R.L.B., 377 N.C. 311, 2021-NCSC-49, that:
Our review of a permanency planning order ‘is
limited to whether there is competent evidence in the
record to support the findings [of fact] and whether the
findings support the conclusions of law. The trial court’s
findings of fact are conclusive on appeal if supported by any
competent evidence.’ The trial court’s dispositional
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choices—including the decision to eliminate reunification
from the permanent plan—are reviewed only for abuse of
discretion, as those decisions are based upon the trial
court’s assessment of the child’s best interests.
2021-NCSC-49, ¶ 11 (extraneity omitted).4 “An abuse of discretion results where the
court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not
have been the result of a reasoned decision.” In re T.L.H., 368 N.C. 101, 107 (2015)
(extraneity omitted).
A. Requirements for the Elimination of Reunification as a Permanent Plan
¶ 18 N.C.G.S. § 7B-906.2(a) establishes that at any permanency planning hearing
which is conducted pursuant to N.C.G.S. § 7B-906.1, the trial court shall adopt one
or more of the permanent plans which are listed in N.C.G.S. § 7B-906.2(a) which the
trial court finds to be in the juvenile’s best interests. “Reunification” and “custody to
a relative or other suitable person” are included as eligible permanent plans in the
statutory provision. N.C.G.S. § 7B-906.2(a) (2021). N.C.G.S. § 7B-906.2(b), in its
entirety, states:
At any permanency planning hearing, the court
shall adopt concurrent permanent plans and shall identify
the primary plan and secondary plan. Reunification shall
be a primary or secondary plan unless the court made
written findings under G.S. 7B-901(c) or G.S. 7B-
906.1(d)(3), the permanent plan is or has been achieved in
4 “At a review or permanency-planning hearing, ‘[t]he [trial] court may consider any
evidence, including hearsay evidence . . . that the [trial] court finds to be relevant, reliable,
and necessary to determine the needs of the juvenile and the most appropriate disposition.’ ”
In re C.C.G., 380 N.C. 23, 2022-NCSC-3, ¶ 28 (quoting N.C.G.S. § 7B-906.1(c)).
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accordance with subsection (a1) of this section, or the court
makes written findings that reunification efforts clearly
would be unsuccessful or would be inconsistent with the
juvenile’s health or safety. The finding that reunification
efforts clearly would be unsuccessful or inconsistent with
the juvenile’s health or safety may be made at any
permanency planning hearing, and if made, shall eliminate
reunification as a plan. Unless permanence has been
achieved, the court shall order the county department of
social services to make efforts toward finalizing the
primary and secondary permanent plans and may specify
efforts that are reasonable to timely achieve permanence
for the juvenile.
N.C.G.S. § 7B-906.2(b) (2021). “It is well settled that where the language of a statute
is clear and unambiguous, there is no room for judicial construction and the courts
must give the statute its plain and definite meaning, and are without power to
interpolate, or superimpose, provisions and limitations not contained therein.” Union
Carbide Corp. v. Offerman, 351 N.C. 310, 314 (2000) (extraneity omitted). “ ‘Where a
statute contains two clauses which prescribe its applicability, and the clauses are
connected by a disjunctive (e.g. “or”), the application of the statute is not limited to
cases falling within both clauses, but will apply to cases falling within either of them.”
Spruill v. Lake Phelps Vol. Fire Dep’t., Inc., 351 N.C. 318, 323 (2000) (quoting Davis
v. N.C. Granite Corp., 259 N.C. 672, 675 (1963)).
¶ 19 In a permanency planning order entered by the trial court on 20 December
2019 pursuant to a permanency planning review hearing held on 20 August 2019, the
trial court stated that “[t]he permanent plan shall be reunification with a concurrent
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plan of custody with a relative.” After the permanency planning review hearing
conducted on 13 January 2020, the trial court entered an order dated 27 March 2020
and filed on 3 April 2020 in which it found in Finding of Fact 25 that “[t]he respondent
parents have acted inconsistent with the juvenile’s health and safety” and decreed
that “[t]he primary permanent plan for the juvenile shall be custody to a relative with
concurrent permanent plans of custody to a court-approved caretaker and
reunification.” In a subsequent permanency planning order entered by the trial court
on 21 July 2020 after it conducted a 3 June 2020 permanency planning review
hearing in the matter, the trial court made Findings of Fact 25, 26, and 27 as follows:
25. The respondent parents have acted inconsistent
with the juveniles’ health and safety.
26. In accordance with G.S. 7B-906.2, the primary
permanent plan is custody to a court-approved
caretaker, and that plan is being achieved with the
entry of this order.
27. In accordance with G.S. 7B-906.2, there is no
further need for a concurrent plan as the primary
plan of custody to a court-approved caretaker is
achieved.
The trial court consequently determined in the same order that “[t]he primary
permanent plan for the juvenile of custody to a court-approved caretaker has been
achieved through the entry of this order.”
¶ 20 The Court of Appeals majority erroneously decided in the opinion which it
rendered here that the trial court’s 21 July 2020 permanency planning order did not
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make proper findings of fact based on competent evidence, pursuant to N.C.G.S. §§
7B-906.1(d)(3) and 7B-906.2(b), to allow the trial court to remove reunification as a
concurrent permanent plan and thereby implicitly to cease reunification efforts. In re
K.P., ¶ 19. Based on this faulty premise, the Court of Appeals went on to conclude
that the trial court’s 21 July 2020 order “fail[ed] to address the ultimate question of
whether reunification would be unsuccessful or inconsistent with Kenneth’s safety”
by “ceas[ing] reunification efforts without making sufficient findings pertinent to
N.C. Gen. Stat. § 7B-906.2(d) and the ultimate findings required by N.C. Gen. Stat.
§§ 7B-906.2(b) and 7B-906.1(d)(3).” Id. ¶ 21. We agree with the Court of Appeals
dissent regarding the proper assessment of the trial court’s pertinent orders relating
to the identification and prioritization of the permanent plans which were evaluated,
the sufficiency of the trial court’s findings to support its conclusions concerning the
trial court’s elections between and among the permanent plans, and the trial court’s
satisfaction of the mandatory determinations which the cited applicable statutes
require. The trial court’s findings, conclusions, and supporting rationale were
properly reached and substantiated in light of the evidence adduced, and in light of
the statutory law and appellate case law. This includes the determination made by
the Court of Appeals majority that the trial court erred in the trial court’s view of
Phillips, Sr. and Mrs. Phillips as Kenneth’s relatives for purposes of the fulfillment
of the primary permanent plan of “custody to a relative” identified in the trial court’s
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order dated 27 March 2020 and filed on 3 April 2020, even though the same result
was realized when the couple received legal and physical custody of Kenneth
pursuant to the trial court’s recognition of their status as “court-approved
caretaker[s]” in the trial court’s 21 July 2020 order which designated “custody to a
court-approved caretaker” as the primary permanent plan for the juvenile Kenneth.
¶ 21 In the instant case, there is competent evidence in the record to support the
trial court’s findings of fact, and in turn there are sufficient findings of fact to support
the conclusions of law, which undergird the trial court’s determinations in the orders
which it issued to eliminate reunification as a permanent plan. These findings,
conclusions, and ultimate determinations reached by the trial court on the matter of
the elimination of reunification as a permanent plan in this case satisfy the statutory
requirements imposed upon a trial court under N.C.G.S. § 7B-906.1(d)(3) to make
relevant written findings of fact as to whether efforts to reunite the juvenile Kenneth
with either parent clearly would be inconsistent with the juvenile’s health or safety
and N.C.G.S. § 7B-906.2(b) to make written findings that reunification efforts clearly
would be inconsistent with the juvenile’s health or safety which therefore would
eliminate reunification as a plan. Under the circumstances presented in this case, the
trial court was not required to make further findings, conclusions, and ultimate
determinations regarding the elimination of reunification. We do not discern any
abuse by the trial court of its discretion to arrive at the findings, conclusions, and
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ultimate determinations which the trial court reached, in light of the deference given
to the trial court concerning its assessment of the child’s best interests. Additionally,
in light of standard rules of statutory construction, the use of the disjunctive term
“or” in N.C.G.S. § 7B-906.2(b) demonstrates that the satisfaction of any one of the
three delineated circumstances which are identified in the statute, even to the
exclusion of the remaining two circumstances, relieves the trial court of any further
obligation to maintain reunification as a permanent plan. Since the trial court
properly determined in its 21 July 2020 order that the revised primary permanent
plan of custody to a court-approved caretaker had been achieved, and the trial court
had made written findings that reunification efforts clearly would be inconsistent
with the juvenile’s health or safety, then the trial court was empowered to properly
eliminate reunification as a primary or secondary plan because the trial court
satisfied all of these components as found in N.C.G.S. § 7B-906.2(b).
¶ 22 In light of all of these aspects, we reverse the Court of Appeals’ determination
that the trial court erred in ceasing reunification efforts and ultimately eliminating
reunification as a primary or secondary permanent plan.
B. Requirements for the Verification of Non-Parents to be Custodians
¶ 23 N.C.G.S. § 7B-906.1(a) states, in pertinent part, that “[t]he court shall conduct
a . . . permanency planning hearing within 90 days from the date of the initial
dispositional hearing [and] permanency planning hearings shall be held at least every
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six months thereafter.” N.C.G.S. § 7B-906.1(a) (2021). Pursuant to the trial court’s
execution of a permanency planning hearing, N.C.G.S. § 7B-906.1(j) provides, in
pertinent part:
If the court determines that the juvenile shall be
placed in the custody of an individual other than a parent
. . . , the court shall verify that the person receiving custody
. . . understands the legal significance of the placement . . .
and will have adequate resources to care appropriately for
the juvenile. The fact that the prospective custodian . . . has
provided a stable placement for the juvenile for at least six
consecutive months is evidence that the person has
adequate resources.
N.C.G.S. § 7B-906.1(j). While this Court has never addressed the minimum
evidentiary requirements which are sufficient to support a trial court’s verification
that a non-parent “understands the legal significance of the placement” of the
juvenile in the non-parent’s custody and that the non-parent “will have adequate
resources to care appropriately for the juvenile,” the Court of Appeals provided
instructive guidance on the matter in the opinion which it rendered in In re J.D.M.-
J., where the lower appellate court opined:
N.C. Gen. Stat. § 7B-906.1(j) does not require the trial court
to make any specific findings in order to make the
verification. However, we have made clear that the record
must show the trial court received and considered reliable
evidence that the guardian or custodian had adequate
resources and understood the legal significance of custody
or guardianship.
260 N.C. App. at 65 (extraneity omitted).
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¶ 24 During the course of conducting permanency planning review hearings in this
case, the trial court determined that the juvenile Kenneth should be placed in the
custody of an individual other than a parent. The tribunal placed the child in the
custody of Phillips, Sr. and his wife Mrs. Phillips. The Court of Appeals majority
concluded that the trial court “failed to fulfill its statutory obligation to verify that
Mr. Phillips, Sr. and Mrs. Phillips (non-parents and non-relatives) understood the
legal significance of their appointment as Kenneth’s custodians,” In re K.P., ¶ 22, or
“that the couple had the adequate resources to care appropriately for the juvenile,”
id. ¶ 23. On this issue of verification, the Court of Appeals majority ultimately decided
that “neither the record [as] a whole nor the district court’s findings of fact support
the conclusion that Kenneth’s custodians understood the legal significance of the
placement or that they would have the adequate resources to care appropriately for
the juvenile.” Id. ¶ 24. Conversely, the dissenting opinion of the Court of Appeals took
the position on verification that “testimony from the social worker and Mr. Phillips
Sr. demonstrates that the couple understood the legal significance of the
appointment, and Kenneth’s stable placement with Mr. Phillips Sr. and Mrs. Phillips
for seven consecutive months demonstrates the couple had adequate resources to care
for Kenneth.” Id. ¶ 42 (Jackson, J., concurring in part and dissenting in part).
¶ 25 While the majority view and the dissenting view of the lower appellate court
reach opposite outcomes on the issue of verification in the present case, both of them
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quote these cited passages from the transcript as dispositive of their respective
opinions, with a social worker having testified for DSS as follows:
Q. And have [Mr. Phillips, Sr., and Mrs. Phillips]
expressed a desire to accept legal custody of [Kenneth]?
A. Yes, they have.
Phillips, Sr. offered the following testimony:
Q. And do you recall having conversations with the
Department regarding taking custody of [Kenneth]?
A. Yes, ma’am.
Q. And are you and your wife willing to do that at
this time?
A. Yes, ma’am.
Q. And are you and your wife willing to provide
permanence for [Kenneth] through a custody order?
A. Yes, ma’am
In addition, the Court of Appeals dissent noted this permanency planning review
hearing testimony from Phillips, Sr.:
Q. And if I may ask, Mr. [Phillips, Sr.], what is an
estimate of your annual salary?
A. It depends year to year. I think last year was
fifty-six, I think, something like that.
Q. And since having [Kenneth] in your home, have
you and your wife experienced any difficulty in financially
caring for him?
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A. No.
Q. Do you anticipate having any financial difficulty
in continued care of [Kenneth]?
A. No; no, ma’am.
Q. And have you been caring for [Kenneth] without
any substantial financial contributions from the parents?
A. No.
Q. No contributions?
A. No.
¶ 26 We agree with the Court of Appeals dissent on this matter of verification,
conclude that the Court of Appeals majority erroneously decided this issue, and
therefore reject the majority’s conclusion regarding verification. Despite the lack of
any specific findings which are expressly identified in N.C.G.S. § 7B-906.1(j) as being
required to authorize a trial court to properly establish verification, we can determine
from the record of the 3 June 2020 permanency planning review hearing that the trial
court sufficiently verified that the court-approved caretakers Phillips, Sr. and Mrs.
Phillips, in receiving legal and physical custody of the juvenile Kenneth, understood
the legal significance of the placement and had adequate resources to care
appropriately for the child. The combined testimony rendered by the DSS social
worker and Phillips, Sr. amply support this determination. Similarly, the testimony
given at the hearing by Phillips, Sr. with regard to the financial stability, resources,
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independence, and comfort level of the court-approved caretakers, when considered
along with the undisputed evidence which showed that the seven consecutive months
of Kenneth’s placement with Phillips, Sr. and Mrs. Phillips exceeded the span of six
consecutive months of such placement that N.C.G.S. § 7B-906.1(j) expressly
recognizes as evidence that the prospective custodian has adequate resources,
satisfactorily showed that the couple have adequate resources to care appropriately
for the juvenile.
¶ 27 Given these circumstances, we reverse the decision of the Court of Appeals that
the trial court erred by failing to fulfill the trial court’s statutory obligations
established by N.C.G.S. § 7B-906.1(j) concerning verification.
III. Conclusion
¶ 28 Petitioner appeals to this Court from the decision of the Court of Appeals on
the basis of a dissent. For the reasons stated noted in the dissenting opinion, we
reverse the decision of that court as to the appealable issues of right, namely, the
determinations by the Court of Appeals that the trial court erred (1) in ceasing
reunification efforts and ultimately eliminating reunification as a primary or
secondary plan, and (2) by failing to fulfill its statutory obligations under N.C.G.S. §
7B-906.1(j) concerning verification. The remaining issue addressed by the Court of
Appeals, namely, that the trial court failed to comply with the requirement to make
appropriate findings of fact pursuant to N.C.G.S. § 7B-906.1(n) before ordering the
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cessation of further reviews in this case, is not properly before this Court and the
decision by the Court of Appeals on that issue remains undisturbed. This case is
remanded to the Court of Appeals for further remand to the District Court, Hyde
County, for further proceedings not inconsistent with this opinion.
REVERSED IN PART AND REMANDED.