254 N.C. App. 395
N.C. Ct. App.2017Background
- OCDSS filed neglect/dependency petitions for three children (Cathy, Callie, Sarah) in March 2015 based on mother’s substance abuse and mental health issues.
- Children initially remained in parents’ home under a safety plan; nonsecure custody obtained April 2015 and placements with maternal relatives followed.
- Permanency planning hearings in Nov 2015 set reunification as primary with concurrent guardianship; by July 2016 guardianship became primary and reunification secondary.
- Trial court (Sept 20, 2016) awarded guardianship of Cathy to maternal grandmother and guardianship of Callie and Sarah to maternal aunt, granted weekly unsupervised visitation to mother, closed further reviews, and relieved OCDSS and GAL of responsibilities.
- Mother appealed, arguing (1) court removed reunification without required findings; (2) court improperly closed reviews; and (3) visitation plan unlawfully delegated to guardians.
Issues
| Issue | Respondent-mother's Argument | OCDSS/Guardian/Trial Court's Position | Held |
|---|---|---|---|
| Whether reunification was removed without § 7B-906.2(b) findings | Trial court eliminated reunification as a permanent plan when it granted guardianship, closed the case, and relieved DSS | Court found reunification remained a secondary plan in its order | Reunification was not eliminated; § 7B-906.2(b) findings not required because reunification remained a permanent plan |
| Whether the court could close further review hearings and relieve OCDSS/GAL | Closing reviews and relieving agencies effectively ceased reunification oversight and required continuation of reviews | Court concluded guardianship was primary, placements stable, and closed reviews | Vacated that portion: court erred in ceasing reviews and relieving OCDSS/GAL because reunification remained a secondary plan and mother retained rights to reasonable efforts and review |
| Whether the visitation order improperly delegated judicial authority to guardians | Visitation language left modification to guardians’ unilateral “concern,” delegating court’s role | Trial court set minimums but allowed visits to change based on guardians’ concerns | Vacated visitation provisions that delegated modification authority to guardians; court cannot delegate visitation decisions to custodians |
| Validity of guardianship appointments | Mother did not challenge merits of guardianship appointments | Guardians sought and were appointed as permanency custodians/guardians | Guardianship awards affirmed (except for visitation/closure issues) |
Key Cases Cited
- In re N.B., 240 N.C. App. 353, 771 S.E.2d 562 (N.C. Ct. App. 2015) (holding reunification effectively ceased when court eliminated reunification goal, established guardianship, and transferred custody from DSS to guardians)
- In re P.O., 207 N.C. App. 35, 698 S.E.2d 525 (N.C. Ct. App. 2010) (appellate review limited to whether findings have competent evidence and support conclusions)
- In re C.M., 183 N.C. App. 207, 644 S.E.2d 588 (N.C. Ct. App. 2007) (dispositional visitation reviewed for abuse of discretion)
- White v. White, 312 N.C. 770, 324 S.E.2d 829 (N.C. 1985) (abuse of discretion standard: reversal only when actions are manifestly unsupported by reason)
- In re J.D.R., 239 N.C. App. 63, 768 S.E.2d 172 (N.C. Ct. App. 2015) (court may not delegate its judicial function of awarding or modifying visitation to custodian/guardian)