Appeal by respondent-mother from an order entered 12 September
2006,
nunc pro tunc 21 August 2006, by Judge Lisa C. Bell in
Mecklenburg County District Court. Heard in the Court of Appeals
26 March 2007.
Tyrone C. Wade for petitioner-appellee Mecklenburg County
Department of Social Services.
Parker Poe Adams & Bernstein, LLP, by Scott S. Addison, for
appellee Guardian ad Litem.
Annick Lenoir-Peek for respondent-appellant.
HUNTER, Judge.
On 7 August 2000, the Mecklenburg County Department of Social
Services (“DSS”) filed a petition alleging that J.E. and B.E. were
neglected and dependent juveniles. DSS first became involved with
the children on 4 June 1999 when it received a referral concerning
problems of domestic violence between the children's parents. On
3 August 1999, DSS learned that the children's father had moved to
California and respondent-mother and her boyfriend were using drugs
in the presence of the children. Respondent-mother was also taking
the children with her to purchase drugs. After DSS became involved
in the case, respondent-mother continued to abuse drugs and was
unable to maintain stable employment or housing. The children then
went to live with their father in California. However, shortly
after their arrival, their father was arrested on drug-related
charges and they went to live with their paternal aunt. The
children returned to North Carolina in July 2000, at which time
respondent-mother moved into a hotel room with the children. When
respondent-mother ran out of money and had to leave the hotel, she
placed the children with their maternal grandparents. The
grandparents provided care until 7 August 2000, at which time they
brought the children to DSS and stated they could not care for them
because the grandmother had recently undergone heart surgery. On
1 November 2000, nunc pro tunc 19 October 2000, the children were
adjudicated neglected and dependent juveniles and custody was
granted to DSS. In August 2001, the children were reunified with
respondent-mother, although DSS retained legal custody. On 2 May
2002, legal custody was returned to respondent-mother. On 12 July 2005, DSS filed another petition alleging that J.E.
and B.E. were neglected and dependent juveniles. DSS noted that
two younger siblings were adjudicated neglected and dependent on 6
January 2005, and that J.E. and B.E. had been placed with relatives
in Virginia at that time. However, DSS further stated that
respondent-mother had returned to North Carolina with J.E. and B.E.
in March 2005. Since that time, DSS alleged that respondent-mother
had left the children alone without proper supervision and abused
controlled substances. On 11 July 2005, respondent-mother left the
children alone and arrived at the S.A.I.L. program. DSS alleged
that she was intoxicated and needed “to be transported to Detox and
then into treatment.”
On 16 August 2005, the children were once again adjudicated
neglected and dependent. In the adjudication order, the trial
court noted that respondent-mother
refused in open court to participate in Level
II of the FIRST program and the Court is not
convinced that the mother is committed to
completing her substance abuse treatment. The
court is concerned that the mother indicated
that she “would choose her children over her
drug dependency,” however, she has shown
little incentive to do [so]. The Court
reminded the mother of the time line to
permanence.
The court further noted that respondent-mother had not made
progress towards reunification with her other children.
Nevertheless, the trial court ordered that the plan for J.E. and
B.E. be reunification.
On 13 July 2006, the trial court held a permanency planning
review hearing. The trial court noted respondent-mother's historyof non-compliance and determined that it was unlikely the children
would return to respondent-mother's home within the next six
months. Accordingly, the trial court changed the permanent plan
for the children to guardianship with a relative. Another
permanency planning review hearing was held on 21 August 2006. At
that hearing, the trial court placed J.E. and B.E. in the
guardianship of their maternal grandparents. Respondent-mother
appeals.
I.
[1] Respondent-mother first argues that the trial court erred
by placing the juveniles with their grandparents in Virginia.
Respondent-mother contends that the trial court was required to
follow the mandates of the Interstate Compact on the Placement of
Children (“the Compact”) as set forth in N.C. Gen. Stat. § 7B-3800
(2005). Specifically, respondent-mother contends that placing J.E.
without a home study, and by removing custody from Mecklenburg
County and closing the active case as to both children, the trial
court violated the Compact. We disagree.
The Compact governs “interstate
placements of children between
North Carolina” and other jurisdictions that have adopted the
Compact. N.C. Gen. Stat. § 7B-3800 (2005) (emphasis added). Thus,
the statute only applies to those children that have been “placed”
in a different jurisdiction within the meaning of the Compact.
N.C. Gen. Stat. § 7B-3800. The Compact defines “placement” as
the arrangement for the care of a child in a
family free or boarding home or in a
child-caring agency or institution but does
not include any institution caring for thementally ill, mentally defective, or epileptic
or any institution primarily educational in
character, and any hospital or other medical
facility.
N.C. Gen. Stat. § 7B-3800, Art. II(d). Accordingly, this Court has
held that when a trial court does not place a child “in foster care
or as a preliminary to adoption” the Compact does not apply.
In re
Rholetter, 162 N.C. App. 653, 664, 592 S.E.2d 237, 244 (2004).
Here, the trial court granted guardianship of the juveniles to
their maternal grandparents in accordance with N.C. Gen. Stat. §
7B-600 (2005) at a permanency planning review hearing conducted
pursuant to N.C. Gen. Stat. § 7B-906 (2005). Under the plain
language of Article II(d), the court's actions did not constitute
a placement mandating compliance with the Compact because it was
not in foster care or as a preliminary to adoption.
See Rholetter,
162 N.C. App. at 664, 592 S.E.2d at 243-44 (granting custody of
children to their biological mother in South Carolina was not a
placement obligating the trial court to follow the mandates of the
Compact).
The dissent argues that
Rholetter is not controlling because
in that case the custody of the children was given to the
biological mother in South Carolina and not the grandparents. This
distinction is immaterial to the outcome of this case. The holding
in
Rholetter was based on the statutory definition of “placement,”
not on the fact that the person receiving custody was a relative.
There could of course be a situation where placement with an out-
of-state relative would require compliance with the Compact whereit serves as a preliminary to adoption.
See N.C. Gen. Stat. § 7B-
3800, Art. II(d).
We also note that the dissent's reliance on
In re L.L., 172
N.C. App. 689, 616 S.E.2d 392 (2005), is misplaced.
(See footnote 1)
In that case
,
this Court held that “a child cannot be placed with an out-of-state
relative until favorable completion of an ICPC [(Compact)] home
study.”
Id. at 702, 616 S.E.2d at 400. That case, however, is
distinguishable from the instant case.
In re L.L. involved the
application of N.C. Gen. Stat. §§ 7B-505, 7B-506(h)(2), and 7B-
903(a)(2) in a dependency hearing.
Id. Each of those statutes
specifically provides that “'[p]lacement of a juvenile with a
relative outside of this State must be in accordance with the
Interstate Compact[.]'”
Id. The statutes governing the instant
case are N.C. Gen. Stat. §§ 7B-600 and 7B-907, neither of which
make reference to the Compact. In any event, a home study,
conducted in accordance with the Compact in 2001 regarding both
J.E. and B.E., made findings that their placement with the
grandparents was appropriate.
(See footnote 2)
Therefore, because the plainlanguage of the Compact does not require its application to
placement with a relative, and because none of the applicable
statutes specifically require its application, we conclude that the
trial court was not required to follow the mandates of the Compact.
Accordingly, respondent-mother's assignment of error is overruled.
II.
[2] We next consider whether the trial court's order fails to
comply with N.C. Gen. Stat. § 7B-907 and N.C. Gen. Stat. § 7B-600.
Specifically, respondent-mother argues that the district court
failed to verify that the maternal grandparents understood the full
implications of being named guardians and had adequate resources to
care for their grandchildren. Accordingly, respondent-mother
argues that the order appointing them as guardians must be
reversed. We are not persuaded.
N.C. Gen. Stat. § 7B-600(c) states that: “If the court
appoints an individual guardian of the person pursuant to this
section, the court shall verify that the person being appointed as
guardian of the juvenile understands the legal significance of the
appointment and will have adequate resources to care appropriately
for the juvenile.”
Id. Similarly, N.C. Gen. Stat. § 7B-907(f)
requires the court to “verify that the person . . . being appointed
as guardian of the juvenile understands the legal significance of
the . . . appointment and will have adequate resources to care
appropriately for the juvenile.”
Id. We note that neither N.C.
Gen. Stat. § 7B-600(c) nor N.C. Gen. Stat. § 7B-907(f) require thatthe court make any specific findings in order to make the
verification.
Here, the order appointing the maternal grandparents as
guardians shows that the trial court received into evidence and
considered a home study conducted by Grayson County (Virginia)
Department of Social Services (“Grayson County”). In the home
study report, Grayson County reported that:
[The maternal grandparents] have both raised
children in the past. They are aware of the
importance of structure and consistency in a
child's life.
. . .
[The maternal grandparents] both appear to
have a clear understanding of the enormity of
the responsibility of caring for [B.E.] They
are aware of the negative impact the past
several years have had on his life. They are
committed to raising [B.E.] and providing for
his needs regardless of what may be required.
. . .
They have adequate income and are financially
capable of providing for the needs of their
grandson.
They are in good physical health.
Based on these findings, Grayson County recommended that the
maternal grandparents be considered for placement of B.E. A home
study conducted in 2001 regarding both J.E. and B.E. made similar
findings and recommendations. Accordingly, based on its
consideration of these reports, we conclude that the court
adequately complied with N.C. Gen. Stat. § 7B-907(f) and N.C. Gen.
Stat. § 7B-600(c).
III.
[3] Lastly, we consider respondent-mother's argument that the
trial court erred by granting guardianship of the juveniles to
their grandparents. Respondent-mother contends that she completed
all tasks required of her in order to be reunified with her
children and the court ignored evidence that the children could be
returned to her home immediately. Further, respondent-mother
asserts that guardianship was not in the children's best interests.
After careful review of the record, briefs, and contentions of
the parties, we affirm. This Court has stated that: “All
dispositional orders of the trial court after abuse, neglect and
dependency hearings must contain findings of fact based upon the
credible evidence presented at the hearing. If the trial court's
findings of fact are supported by competent evidence, they are
conclusive on appeal.”
In re Weiler, 158 N.C. App. 473, 477, 581
S.E.2d 134, 137 (2003) (citation omitted). Here, respondent-mother
essentially argues that the trial court erred by finding that the
children could not be immediately returned to her, and that it was
not in the children's best interests for guardianship to be placed
with the maternal grandparents.
See N.C. Gen. Stat. §
7B-907(b)(1). However, in considering N.C. Gen. Stat. §
7B-907(b)(1), the trial court made the following findings:
3. . . . The mother is currently in
substance abuse treatment through Drug
Court. The Court finds that there is a
great similarity between the first time
the children were in custody and now.
The children were ages eight years and
five years in 2000 when the children were
placed in YFS custody. The mother was
arrested and the children were placed
with the maternal grandparents. In 2000,the mother was complying with Drug Court
and completed inpatient treatment. In
2000, the mother was working, had
housing, had employment, completed family
education, and was attending NA/AA
meetings. The mother completed her
F.I.R.S.T. assessment. The mother
regained custody of the children in 2001.
The mother tested dirty in February 2001
and within two years the children were
placed with the maternal grandparents
again. The children were placed in YFS
custody again when they were thirteen and
ten years. The mother again had marital
issues, financial issues, lacked
employment, lacked stable housing and had
substance abuse issues.
4. The Court finds the parallel uncanny.
The mother had a history of substance
abuse and relapse, had marital problems,
had financial problems, lacked
employment, and lacked stable housing in
2000 when the children came into custody.
The mother then complied and subsequently
relapsed. The same factors existed in
July 2005, when the children came into
custody as in 2000. The Court recognizes
the mother's recent progress and how
similar the pattern is to 2000. The
seven year history strongly suggests that
it is highly unlikely that it will be
possible for the juveniles to return home
immediately or within six months.
The court further found that the maternal grandparents were willing
and able to provide a permanent home for the children. We conclude
that the court's findings were based upon clear, cogent, and
convincing evidence and in accordance with N.C. Gen. Stat. § 7B-
907. We further hold that based on its findings, the trial court
properly concluded that guardianship was in the children's best
interests. Accordingly, we affirm.
Affirmed.
Judge McCULLOUGH concurs. Judge TYSON dissents in a separate opinion.
TYSON, Judge, dissenting.
The trial court failed to comply with the statutory mandates
of the Interstate Compact on the Placement of Children (“ICPC”).
The trial court's permanency planning review order that placed
respondent-mother's children, J.E. and B.E., with their maternal
grandparents in Virginia without compliance with ICPC is erroneous
as a matter of law. I vote to reverse and respectfully dissent.
I. ICPC
A. Applicability and Compliance
The trial court failed to follow and comply with ICPC's
statutory mandates. The ICPC was enacted by the North Carolina
General Assembly and controls the placement of juveniles by a North
Carolina “sending agency” into a “receiving state.” N.C. Gen.
Stat. § 7B-3800 (2005). The ICPC defines these terms in Article II
as:
(b) “Sending agency” means a party state
officer or employee thereof; a subdivision of
a party state, or officer or employee thereof;
a court of a party state; a person,
corporation, association, charitable agency or
other entity which sends, brings, or causes to
be sent or brought any child to another party
state.
(c) “Receiving state” means the state to which
a child is sent, brought, or caused to be sent
or brought, whether by public authorities or
private persons or agencies, and whether for
placement with state or local public
authorities of [or] for placement with private
agencies or persons.
Id.
The ICPC further provides, in relevant part:
[Article III:] (d) The child shall not be
sent, brought, or caused to be sent or brought
into the receiving state until the appropriate
public authorities in 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.
[Article V:] (a) The sending agency shall
retain jurisdiction over the child sufficient
to determine all matters in relation to the
custody, supervision, care, treatment, and
disposition of the child which it would have
had if the child had remained in the sending
agency's state, until the child is adopted,
reaches majority, becomes self-supporting or
is discharged with the concurrence of the
appropriate authority in the receiving state.
. . .
[Article VIII:] This Compact shall not apply
to: (a) the sending or bringing of a child
into a receiving state by the child's parent,
stepparent, grandparent, adult brother or
sister, adult uncle or aunt, or the child's
guardian and leaving the child with any such
relative or nonagency guardian in the
receiving state.
Id. (emphasis supplied).
This Court has interpreted the ICPC and stated:
[P]lacement of a juvenile with a relative
outside of this State must be in accordance
with the Interstate Compact on the Placement
of Children, as set out in Article 38 of the
Juvenile Code (the “ICPC”). . . . Under the
ICPC, a child shall not be sent, brought, or
caused to be sent or brought into the
receiving state until the appropriate public
authorities in 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. In other words, a child cannot be
placed with an out-of-state relative untilfavorable completion of an ICPC home study.
Further, the policies underlying the ICPC
anticipate that states will cooperate to
ensure that a state where a child is to be
placed may have full opportunity to ascertain
the circumstances of the proposed placement
and the State seeking the placement may obtain
the most complete information on the basis of
which to evaluate a projected placement before
it is made.
In re L.L., 172 N.C. App. 689, 702, 616 S.E.2d 392, 400 (2005)
(emphasis supplied) (internal citations and quotations omitted).
On 7 October 1982, the North Carolina Attorney General opined
that the ICPC applies “when a North Carolina child is sent by
court, governmental agency, or child-placing agency to live with a
parent, relative or a guardian in another party state.” 52 N.C.
Op. Att'y Gen. 22 (1982). “North Carolina courts, governmental
agencies, and child-placing agencies are all 'sending agencies' as
defined in Article II(b). . . . In order for [the Article VIII]
limitation to apply, the child must be both sent and received by a
parent, relative, or guardian.” Id. The clear and unambiguous
text of the statute does not exempt DSS from compliance with ICPC
when “sending” a child to a “receiving state.” N.C. Gen. Stat. §
7B-3800.
The North Carolina Administrative Code also provides:
Foster care services includes identifying
children who require placement across state
lines, ensuring that such placements are in
suitable environments with persons or
caretaking facilities having appropriate
licenses and effecting such placements
pursuant to the interstate compact on the
placement of children [the ICPC]. “Placement”
pursuant to the interstate laws means the
arrangement for the care of a child in either
a family or foster care facility but does notinclude any medical facility or facility
licensed under standards adopted by mental
health. Services include ongoing supervision.
Services also include recruitment, study and
development of foster families and child care
facilities, assessment and periodic
reassessment to determine if the home or
facility meets the needs of children it
serves, and consultation, technical
assistance, and training to assist foster
families and care facilities to expand and
improve the quality of care provided.
N.C. Admin. Code tit. 10A, r. 71R.0907 (2007) (emphasis supplied).
Here, the trial court concluded the permanent plan for J.E.
and B.E. was to be guardianship with their maternal grandparents
who live in Virginia. The trial court ordered J.E. and B.E. to be
placed in a receiving state outside of North Carolina and was
clearly bound to comply with the statutory mandates of the ICPC.
N.C. Gen. Stat. § 7B-3800; see In re L.L., 172 N.C. App. at 702,
616 S.E.2d at 400 (“[P]lacement of a juvenile with a relative
outside of this State must be in accordance with the [ICPC].”); see
also 52 N.C. Op. Att'y Gen. 22 (The ICPC applies “when a North
Carolina child is sent by court, governmental agency, or
child-placing agency to live with a parent, relative or a guardian
in another party state.”). In In re L.L., as here, an ICPC home
study had to be completed before DSS placed the child out-of-state
in Virginia. 172 N.C. App. at 702, 616 S.E.2d at 400.
The majority's opinion erroneously concludes the trial court
was not required to follow the statutory mandates of the ICPC. Its
reliance on In re Rholetter, 162 N.C. App. 653, 592 S.E.2d 237
(2004), is misplaced. In Rholetter, this Court concluded, “under
the plain meaning of [N.C. Gen. Stat. § 7B-3800], the trial courtwas not obligated to follow the mandates of the [ICPC][]” because
“[t]he trial court granted custody of the juveniles to their
biological mother” in South Carolina. 162 N.C. App. at 664, 592
S.E.2d at 244. Here, J.E. and B.E. were not placed with their
biological mother. In re Rholetter is distinguishable and
inopposite to the facts at bar.
B. Required Home Study
Respondent-mother argues the trial court erred by placing J.E.
and B.E. with their maternal grandparents in Virginia. Respondent-
mother asserts the trial court violated the statutory mandates of
the ICPC by placing J.E. out of state without a home study and
removing custody from DSS and closing the active case concerning
both J.E. and B.E. I agree.
Here, a 2006 ICPC home study was conducted on the maternal
grandparents' residence. This ICPC home study reviewed and
approved solely the placement of B.E. in Virginia with the maternal
grandparents. Nowhere in the 2006 ICPC Virginia home study is J.E.
addressed or approved for placement with the maternal grandparents.
The 2006 ICPC Virginia home study also fails to discuss the impact
of having two children in the home instead of one child or to
address any special needs of J.E.
The trial court's order violated ICPC's statutory mandates by
placing J.E. with an out-of-state relative without the favorable
completion of an ICPC home study. See In re L.L., 172 N.C. App. at
702, 616 S.E.2d at 400 (“[A] child cannot be placed with anout-of-state relative until favorable completion of an ICPC home
study.”).
The trial court also erred by removing custody from DSS and
closing the active case of both J.E. and B.E. The trial court's
order stated it “maintain[ed] jurisdiction in this matter until
[J.E. and B.E.] are eighteen” if the parties needed to approach the
court for visitation issues in the future.
However, the order entered a permanent plan of guardianship
and closed respondent-mother's case. No further hearings were
scheduled and no future obligations were imposed upon the DSS to
monitor the children's progress or best interests. By concluding
the permanent plan for both J.E. and B.E. to be guardianship with
their maternal grandparents in Virginia, the trial court removed
custody from and relieved DSS of further responsibility and gave
the maternal grandparents full rights over the children.
The ICPC mandates, “The sending agency shall retain
jurisdiction over the child sufficient to determine all matters in
relation to the custody, supervision, care, treatment, and
disposition of the child which it would have had if the child had
remained in the sending agency's state[.]” N.C. Gen. Stat. § 7B-
3800, Art. V(a). On this ground alone, the trial court's order
also violates ICPC's statutory mandates that the sending agency
“retain jurisdiction . . . sufficient to determine all matters in
relation to the custody, supervision, care, treatment, and
disposition of the child.” Id. The effect of the trial court's
order is J.E. and B.E. are living in Virginia without knowledge oroversight by Virginia DSS. The file is closed in North Carolina.
The children will receive no supervision from agencies in either
state.
II. Conclusion