In re: J.D.M-J. & O.M.L.J.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-1328

Filed: 19 June 2018

Cabarrus County, Nos. 16 JA 91-92

IN THE MATTER OF: J.D.M.-J., O.M.L.J.

Appeal by respondent from order entered 25 August 2017 by Judge Christy E.

Wilhelm in Cabarrus County District Court. Heard in the Court of Appeals 31 May

2018.

Hartsell & Williams, PA, by H. Jay White and Austin “Dutch” Entwistle III, for

petitioner-appellee Cabarrus County Department of Human Services.

J. Thomas Diepenbrock for respondent-appellant.

Poyner Spruill LLP, by Caroline P. Mackie, for guardian ad litem.

DAVIS, Judge.

A.M. (“Respondent”) appeals from an order that awarded custody of her minor

children J.D.M.-J. (“Jacob”)1 and O.M.L.J. (“Opal”) to their aunt and uncle in Arizona,

terminated the juvenile proceeding, and transferred the matter for entry of a civil

custody order under Chapter 50 of the North Carolina General Statutes. On appeal,

she argues that the trial court failed to (1) comply with the statutory procedure for

terminating the proceeding in juvenile court; (2) ensure compliance with the

1Pseudonyms and initials are used throughout this opinion to protect the identities of the

minor children and for ease of reading.

IN RE: J.D.M.-J.

Opinion of the Court

Interstate Compact on the Placement of Children (the “ICPC”); (3) verify that the

custodians possessed adequate resources and understood the legal significance of the

placement of the children in their custody; and (4) comply with statutory

requirements in establishing Respondent’s visitation rights. After a thorough review

of the record and applicable law, we vacate the trial court’s order and remand for

further proceedings.

Factual and Procedural Background

Respondent is the mother of Opal and Jacob.2 Opal was born in December

2006 and Jacob in September 2008. In December 2014, the Cabarrus County

Department of Human Services (“DHS”) received a report that Respondent had not

been properly monitoring Jacob’s blood sugar levels in connection with his juvenile

diabetes and that the house was not clean or safe for the children.

In December 2015 and January 2016, DHS received numerous reports alleging

that (1) there was fighting in the home between Respondent and her oldest child

(“April”)3; (2) Respondent was not properly caring for Jacob’s diabetes; (3) Opal was

not receiving her ADHD medication as prescribed; (4) Jacob was missing school; and

(5) Opal and Jacob were attending school with inadequate clothes and inattention to

personal hygiene.

2 The children’s father is deceased.

3 April was not a subject of the order from which appeal is being taken and, therefore, her

status is not at issue in this appeal.

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DHS began providing in-home services to the family in response to these

reports. In April and May 2016, DHS received new reports stating that Respondent

was providing inadequate care for both children’s medical needs, Opal had been

disruptive at school, and Opal was being physically abused by April at home.

On 20 June 2016, Respondent was hospitalized, and Opal and Jacob were

staying with a family friend. The friend reported that she was not comfortable caring

for the children while Respondent was in the hospital. On 22 June 2016, DHS filed

juvenile petitions alleging that Opal and Jacob were neglected juveniles. The

children were placed in nonsecure custody with DHS the same day. On 11 August

2016, Respondent consented to an order that adjudicated the children to be neglected,

established a primary permanent plan of reunification with a secondary permanent

plan of guardianship, and required her to comply with a case plan.

A permanency planning hearing was held on 10 August 2017 before the

Honorable Christy E. Wilhelm in Cabarrus County District Court. Respondent

testified at the hearing along with Lisa Fullerton and Rachel Willert, two social

workers employed by DHS.

On 25 August 2017, the trial court entered a permanency planning order

awarding custody of Opal and Jacob to Beverly and Johnnie Worley (the children’s

maternal aunt and uncle), who lived in Phoenix, Arizona. The court terminated

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jurisdiction in the juvenile action and ordered that the matter be transferred to a

Chapter 50 civil custody action. Respondent filed a timely notice of appeal.

Analysis

On appeal, Respondent argues that the trial court erred by failing to (1) make

necessary findings required under N.C. Gen. Stat. § 7B-911 before terminating

jurisdiction in the juvenile action; (2) ensure compliance with the ICPC; (3) verify

that the Worleys had adequate resources to serve as custodians and that they

understood the legal significance of the placement of the children in their custody;

and (4) make statutorily required findings regarding Respondent’s visitation rights.

We address each argument in turn.

I. Findings Required by N.C. Gen. Stat. § 7B-911

Respondent initially contends — and both DHS and the guardian ad litem

(“GAL”) concede — that the trial court failed to make required findings in connection

with the portion of its order terminating the juvenile proceeding and initiating a civil

action under Chapter 50. N.C. Gen. Stat. § 7B-911(c) provides, in relevant part, as

follows:

(a) Upon placing custody with a parent or other

appropriate person, the court shall determine

whether or not jurisdiction in the juvenile proceeding

should be terminated and custody of the juvenile

awarded to a parent or other appropriate person

pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-

13.7.

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(b) When the court enters a custody order under this

section, the court shall either cause the order to be

filed in an existing civil action relating to the custody

of the juvenile or, if there is no other civil action,

instruct the clerk to treat the order as the initiation

of a civil action for custody.

....

If the court’s order initiates a civil action, the court

shall designate the parties to the action and

determine the most appropriate caption for the

case. . . . The order shall constitute a custody

determination, and any motion to enforce or modify

the custody order shall be filed in the newly created

civil action in accordance with the provisions of

Chapter 50 of the General Statutes. . . .

(c) When entering an order under this section, the court

shall . . . .

....

(2) Make the following findings:

a. There is not a need for continued State

intervention on behalf of the juvenile through

a juvenile court proceeding.

b. At least six months have passed since the

court made a determination that the juvenile’s

placement with the person to whom the court

is awarding custody is the permanent plan for

the juvenile, though this finding is not

required if the court is awarding custody to a

parent or to a person with whom the child was

living when the juvenile petition was filed.

N.C. Gen. Stat. § 7B-911 (2017) (emphasis added).

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Here, it is undisputed that the trial court made no findings satisfying either

subsection (2)(a) or (2)(b). Nor do the findings it did make allow this Court to infer

that these statutory provisions were met. See In re A.S., 182 N.C. App. 139, 144, 641

S.E.2d 400, 403-04 (2007) (upholding order that failed to contain explicit findings

under N.C. Gen. Stat. § 7B-911(c)(2) but made findings demonstrating that trial court

no longer considered DSS intervention necessary).

Indeed, the trial court’s order is internally inconsistent. On the one hand, it

requires continued involvement with the juveniles by DHS by stating the following:

6. CCDHS should continue to make reasonable

efforts to prevent or eliminate the need for placement of the

juveniles.

....

9. The juveniles’s [sic] placement and care are

the responsibility of CCDHS and the agency shall arrange

for the foster care or other placement of the juvenile.

CCDHS is granted the authority or [sic] to obtain medical

treatment, educational, psychological, or psychiatric

treatment and services as deemed appropriate by CCDHS.

On the other hand, however, the order states as follows:

3. The court grants custody of the juveniles to

Beverly and Johnnie Worley.

....

8. This matter is closed. CCDHS and the GAL

are released from this matter.

9. This case is transferred to a Chapter 50

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Action.

These conflicting provisions cannot be reconciled. On remand, we instruct the

trial court to determine whether or not DHS should continue to have a role over the

placement and care of the children or, alternatively, whether it should be released

from further obligations. In the event the trial court determines that no further

involvement by DHS is necessary, we direct the court to make the findings required

by N.C. Gen. Stat. § 7B-911(c)(2).

II. Noncompliance With ICPC

Respondent next contends that the trial court erred in awarding custody to the

Worleys in Arizona without ensuring that the provisions of the ICPC had been

satisfied. We agree.

In entering a dispositional order that places juveniles in out-of-home care,

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. . . . Placement

of a juvenile with a relative outside of this State must be in

accordance with the Interstate Compact on the Placement

of Children.

N.C. Gen. Stat. § 7B-903(a1) (2017).

The ICPC provides, in pertinent part, as follows:

No sending agency shall send, bring, or cause to be sent or

brought into any other party state any child for placement

in foster care or as a preliminary to a possible adoption

unless the sending agency shall comply with each and

every requirement set forth in this Article and with the

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applicable laws of the receiving state governing the

placement of children therein.

N.C. Gen. Stat. § 7B-3800, Article III(a) (2017) (emphasis added). The ICPC further

requires that before a child is sent to the receiving state, “the receiving state shall

notify the sending agency, in writing, to the effect that the proposed placement does

not appear to be contrary to the interests of the child.” N.C. Gen. Stat. § 7B-3800,

Article III(d).

DHS and the GAL argue that the children’s placement with the Worleys was

neither a “placement in foster care” nor “as a preliminary to a possible adoption,”

meaning that the ICPC does not apply. We have previously rejected a similar

argument. In re V.A., 221 N.C. App. 637, 727 S.E.2d 901 (2012), involved a child who

was placed in the custody of an out-of-state relative without notification from the

receiving state that the placement did not appear to be contrary to the interests of

the child. Id. at 639-40, 727 S.E.2d at 903. We determined that the trial court was

required to comply with the ICPC, stating as follows:

The ICPC requires that before a juvenile can be placed with

an out-of-state relative “the receiving state shall notify the

sending agency, in writing, to the effect that the proposed

placement does not appear to be contrary to the interests

of the child.” N.C. Gen. Stat. § 7B-3800, Article III(d). This

Court has previously interpreted the statutory preference

for relative placements in harmony with the ICPC, and

held that “a child cannot be placed with an out-of-state

relative until favorable completion of an ICPC home

study.” In re L.L., 172 N.C. App. 689, 702, 616 S.E.2d 392,

400 (2005) (holding that the statutory preference for

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relative placement and compliance with the ICPC are not

mutually exclusive).

Id. at 640, 727 S.E.2d at 904.

We further rejected the argument that the child’s placement with relatives did

not constitute “foster care.”

According to Regulation 3(4)(26), “foster care” is “24-hour

substitute care for children placed away from their parents

or guardians and for whom the state agency has placement

and care responsibility . . . [which] includes . . . foster

homes of relatives” “regardless of whether the foster care

facility is licensed and payments are made by the state or

local agency for the care of the child.” Ass’n of Adm’rs of

the ICPC (AAICPC), Reg. No. 3 (amended May 1, 2011).

The ICPC defines “placement” as “the care of a child in a

family free or boarding home . . . .” N.C. Gen. Stat. §7B-

3800, Article II(d). A “family free” home, counter

intuitively, is “the home of a relative or unrelated

individual whether or not the placement recipient receives

compensation for care or maintenance of the child.”

AAICPC, Reg. No. 3(4)(24) (emphasis added).

Id. at 641 n.1, 727 S.E.2d at 904 n.1. Thus, we concluded that the custody placement

with the out-of-state relatives was a “placement in foster care,” thereby triggering the

requirements of the ICPC. Id. at 641, 727 S.E.2d at 904.

In arguing that the ICPC does not apply on these facts, DHS and the GAL

direct our attention to In re J.E., 182 N.C. App. 612, 643 S.E.2d 70, disc. review

denied, 361 N.C. 427, 648 S.E.2d 504 (2007). In that case, the respondent-mother

argued that the trial court had erred because DSS had not conducted a home study

pursuant to the ICPC before placing her children with their maternal grandparents,

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Opinion of the Court

who lived in Virginia. We held that placement of the minor children with their

grandparents did not constitute “foster care” and was not “preliminary to adoption”

for purposes of the ICPC. Id. at 615, 643 S.E.2d at 72 (citation and quotation marks

omitted). Thus, we held that compliance with the ICPC was not required. Id.

We acknowledge that the holdings of J.E. and V.A. are in conflict on this issue.

It is axiomatic that we are bound by the prior decisions of this Court. See 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.”). However, “it is also well settled that where there is a conflicting line of cases,

a panel of this Court should follow the older of those two lines.” Graham v. Deutsche

Bank Nat’l Tr. Co., 239 N.C. App. 301, 306, 768 S.E.2d 614, 618 (2015) (citation and

quotation marks omitted).

Although J.E. predates V.A., this Court in V.A. expressly relied on our earlier

decision in In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005), that “a child cannot

be placed with an out-of-state relative until favorable completion of an ICPC home

study.” Id. at 702, 616 S.E.2d at 400. Because L.L. was decided before J.E., we

conclude that we are bound by the L.L./V.A. line of cases.

Based on that line of cases, the ICPC required that Arizona notify DHS the

proposed placement of Jacob and Opal did not appear to be contrary to the interests

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of the children. Because DHS had not received such notification from the appropriate

Arizona agency prior to entry of the permanency planning order, the trial court was

not authorized to award custody of Opal and Jacob to the Worleys. Accordingly,

before any decision is made on remand to once again award custody of the juveniles

to the Worleys, the trial court must first confirm that DHS received the required

notification from the Arizona agency as mandated by the ICPC.

III. Verifications Concerning Proposed Custodians

Respondent next contends that the trial court erred in awarding custody of the

juveniles to the Worleys without first verifying both that (1) the couple had adequate

resources to care for the children; and (2) understood the legal significance of the

placement. We agree.

N.C. Gen. Stat. § 7B-906.1(j) states as follows:

If the court determines that the juvenile shall be placed in

the custody of an individual other than a parent or appoints

an individual guardian of the person pursuant to G.S. 7B-

600, the court shall 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) (2017).

In its order, the trial court made the following findings of fact regarding the

Worleys:

8. CCDHS initiated an Interstate Compact on

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Placement of Children, hereinafter referred to as ICPC. All

of the paperwork and information needed to comply with

the ICPC submission to the state office in Raleigh, North

Carolina has been provided by Mr. and Mrs. Worley

including criminal checks and financial background

information. CCDHS did an independent assessment by

using the ICPC template to verify on their own the other

steps and requirements taken in an ICPC. An ICPC

assessment by Arizona has not been completed.

9. CCDHS FCS Supervisor Rachel Willert

assessed the appropriateness and feasibility for possible

placement . . . of [Opal] and [Jacob] with a maternal aunt

and uncle, Beverly and Johnnie Worley in Phoenix, AZ.

CCDHS FCS Supervisor Rachel Willert traveled to the

Worley home, interviewed the family members, the Worley

children, and extended relatives. CCDHS found no

concerns and the Worley home was safe and appropriate.

10. Beverly and Johnnie Worley are the maternal

aunt and uncle of the juveniles. The juveniles have had

substantial contact with Mr. and Mrs. Worley during their

lifetime. Most recently, Mrs. Worley and the juveniles’

cousin came to stay with mother for approximately one

month. During that time, Mrs. Worley had significant

interaction with the juveniles. CCDHS met with mother,

the juveniles, and Mrs. Worley during this visit. It was

apparent that the juveniles had a strong bond in

connection with their relatives.

11. Beverly Worley recently retired from a human

services position after 25 years of service. Mr. Worley

works with a funeral home on an as-needed basis. The

Worley home currently has Mr. and Mrs. Worley along

with their 18-year-old son who recently graduated from

high school. The Worley’s [sic] have two other children who

are grown and out of the home. One is working and college

[sic] and one is in the military. The Worley’s [sic]

comfortably live off of Mrs. Worley’s retirement and Mr.

Worley’s income from the funeral home work.

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12. Mr. and Mrs. Worley are financially stable

and able to provide for the financial needs of the juveniles.

Mr. and Mrs. Worley have proven the ability to provide

medical care to their own child . . . . Mr. and Mrs. Worley

have family within their community as well as extended

family outside of their community for support and contact.

Mr. and Mrs. Worley are willing and able to provide for the

support and care for the juveniles. Mr. and Mrs. Worley

have investigated the potential schools and medical care

for the children to attend.

13. CCDHS met with or interviewed the Worley

children. The youngest child was interviewed in Cabarrus

County as well as in his home in Phoenix, AZ. Both

CCDHS worker’s [sic] found this Worley son to be

engaging, respectful, and attentive.

This Court has held that 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.” J.E., 182 N.C.

App. at 616-17, 643 S.E.2d at 73. 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. See, e.g., In re E.M., __ N.C. App. __, __, 790 S.E.2d 863, 872 (2016)

(“[N]o evidence in the record supports the court’s finding that either of the custodians

understand the legal significance of the placement.”); In re P.A., 241 N.C. App. 53, 65,

772 S.E.2d 240, 248 (2015) (trial court’s order was not compliant with N.C. Gen. Stat.

§ 7B-906.1(j) because “there [wa]s no evidence at all of what [the custodian]

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considered to be ‘adequate resources’ or what her resources were, other than the fact

that she had been providing a residence for [the child]”).

Here, although the trial court made findings regarding the adequacy of the

Worleys’ financial resources to provide for the needs of Jacob and Opal, the court did

not receive evidence that was sufficient to support these findings. The court accepted

into evidence a report created by DHS that made no mention of the Worleys’ actual

income or their specific financial resources. The report merely stated that DHS was

“currently in the process of assessing the appropriateness and feasibility of placement

for [Opal] and [Jacob] with [the] maternal aunt and uncle.”

The trial court also heard testimony from Fullerton regarding the Worleys’

financial resources:

[COUNSEL:] And have you checked [the

prospective guardians’] finances?

[FULLERTON:] Yes.

[COUNSEL:] And what did you do to check their

finances?

[FULLERTON:] Well, we gave them some forms to

fill out to list their finances on. And, you know, I didn’t

have a reason to question what they stated was retirement,

you know, benefits that [the maternal aunt] is receiving

every month, and then they have additional information

[sic] income that is not -- for her husband. He works at the

funeral home and that’s not always consistent [sic] job. It’s

kind of based on when the services are needed, so they don’t

count on that income. It’s extra for them.

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[COUNSEL:] Have you done any criminal

background checks?

[FULLERTON:] Yes.

[COUNSEL:] Have you requested an ICPC home

study?

[FULLERTON:] Yes, we did.

[COUNSEL:] And what does that normally include?

What do they do when they complete that home study?

[FULLERTON:] I’m not sure.

[COUNSEL:] Have you been able to do any

independent verification of their finances?

[FULLERTON:] I haven’t had a reason to, no.

[COUNSEL:] How much time have you spent with

the Worleys?

[FULLERTON:] Probably a limited amount. We’ve

just had a number of telephone conversations when Miss

Worley was here for about a month in the month of June.

And, you know, we spent some time together in conjunction

with visits to Miss Miller’s home. She also participated in

CFT meeting [sic], and we had some conversations after

that meeting after that. We have continued to maintain

phone contact with her and to discuss her interest in and

feasibility of her, you know, receiving custody of the

children if it didn’t work out with Miss Miller and so those

conversations have just -- I guess increased as we’ve gotten

a lot closer to the time.

Willert also testified as follows on this issue:

[COUNSEL:] How about the finances in regards to

Mr. and Mrs. Worley?

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[WILLERT:] A financial affidavit was

completed . . . .

[COUNSEL:] Were there any concerns?

[WILLERT:] No.

[COUNSEL:] Was there any independent

verification of the incomes and the information in the

affidavit?

[WILLERT:] We didn’t do the checks. It was sent

off with the ICPC for verification, but that would be as easy

as looking generally for a home study when they have that

-- all it is is verifying a bank statement for deposit.

While this testimony constituted evidence that the Worleys did possess some

income, it did not state the amount of that income or demonstrate that it was

sufficient to provide necessary care for the juveniles. Moreover, the social worker’s

statement that there were no concerns with the Worleys’ financial affidavit is too

vague to constitute adequate evidence that they did, in fact, possess adequate

resources to care for the juveniles.

DHS and the GAL cite J.E. in support of their argument regarding the

adequacy of the evidence on this issue. In J.E., a department of social services report

was provided to the trial court stating that a home study of the custodians’ house had

been conducted by the department. J.E., 182 N.C. App. at 617, 643 S.E.2d at 73. We

held that the home study report supported the trial court’s determination that the

custodians had adequate resources to care for the minor child. Id. Here, conversely,

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while a home study had been requested, there was no testimony as to the results of

the study or whether it had even been completed.

DHS and the GAL point to additional testimony stating that the Worleys (1)

have three children of their own; (2) maintain “a stable home and a good home;” and

(3) arranged schooling for Opal and Jacob in Arizona and made medical appointments

for them. However, none of this evidence is sufficient to comply with N.C. Gen. Stat.

§ 7B-906.1(j). As discussed above, the trial court did not receive evidence regarding

the Worleys’ financial resources that was specific enough to enable the court to verify

that they possessed adequate resources to provide for the needs of the juveniles. See

P.A., 241 N.C. App. at 65, 772 S.E.2d at 248 (vacating and remanding permanency

planning and review order where trial court failed to verify whether individual

awarded guardianship had adequate resources to care for juvenile).

Furthermore, in addition to the lack of sufficient evidence regarding the

Worleys’ resources, the trial court also heard no evidence from which it could verify

that the Worleys understood the legal significance of assuming custody of Jacob and

Opal. “Evidence sufficient to support a factual finding that a potential guardian

understands the legal significance of guardianship can include, inter alia, testimony

from the potential guardian of a desire to take guardianship of the child, the signing

of a guardianship agreement acknowledging an understanding of the legal

relationship, and testimony from a social worker that the potential guardian was

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willing to assume legal guardianship.” E.M., __ N.C. App. at __, 790 S.E.2d at 872.

Neither of the Worleys testified at the 10 August 2017 hearing, and no testimony was

offered by DHS that the Worleys were aware of the legal significance of assuming

custody of the juveniles. Nor did the Worleys sign a guardianship agreement

acknowledging their understanding of the legal relationship.

Thus, for these reasons as well, we must vacate the trial court’s award of

custody of Jacob and Opal to the Worleys and remand for further proceedings. See

id. at __, 790 S.E.2d at 872 (vacating award of custody where no evidence was

presented supporting court’s finding that custodians understood legal significance of

placement).

IV. Findings Regarding Visitation

Finally, Respondent contends that the trial court failed to make necessary

findings concerning Respondent’s visitation rights in the permanency planning

review order. DHS and the GAL once again concede error on this issue, and we agree

that the court’s findings did not fully comply with the applicable statutory

requirements.

N.C. Gen. Stat. § 7B-905.1(c) provides, in pertinent part, as follows:

If the juvenile is placed or continued in the custody or

guardianship of a relative or other suitable person, any

order providing for visitation shall specify the minimum

frequency and length of the visits and whether the visits

shall be supervised. . . .

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N.C. Gen. Stat. § 7B-905.1(c) (2017).

In the present case, after concluding that visitation with Respondent was in

Opal and Jacob’s best interests, the trial court ordered that

[v]isitation between [Opal] and [Jacob] with [Respondent]

be coordinated between [Respondent] and [the maternal

aunt]. If [Respondent] were to return to live in Arizona,

that visitation between [Respondent, Opal, and Jacob]

occur weekly for a minimum of 2 hours.

This portion of the court’s order is deficient in several respects. First, it fails

to provide any direction as to the frequency or length of Respondent’s visits in the

event that she does not return to live in Arizona. Second, it fails to specify whether

the visits with Respondent should be supervised or unsupervised. On remand, we

instruct the trial court to make new findings on this issue that comply with N.C. Gen.

Stat. § 7B-905.1(c). See In re J.P., 230 N.C. App. 523, 530, 750 S.E.2d 543, 548 (2013)

(remanding for new findings where trial court failed to specify conditions of visitation

as required by statute).

Conclusion

For the reasons stated above, we vacate the trial court’s 25 August 2017 order

and remand for further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.

Judges DILLON and BERGER concur.

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