In re A.C., 280 N.C. App. 301 (2021)

Held: 
Vacated and Remanded
  • Facts: The juvenile was adjudicated neglected and dependent in 2016. The court conducted a permanency planning hearing on September 26, 2019 and rendered a decision that it was granting permanent guardianship.  The court did not address the parent’s constitutional rights, although the DSS attorney raised the issue in closing argument. A permanency planning order (PPO) was entered on October 9, 2019 that granted guardianship to the juvenile’s foster parents.  A subsequent PPO was entered November 13, 2019 that determined each parent acted inconsistently with their constitutional rights and that guardianship was in the child’s best interests. The subsequent PPO was based on sufficient and competent evidence. Father appeals the subsequent PPO.
  • Reunification must be a primary or secondary permanent plan unless the findings under G.S. 7B-906.2 are made. Effective for all actions filed or pending on October 1, 2019, amendments were made to G.S. 7B-906.2(b). Father argues the prior version of GS 7B-906.2(b) should apply since the hearing was held in September. Agreeing with DSS and the GAL, the amendment applies. “ ‘Pending’ is defined as ‘[r]emaining undecided [or] awaiting decision.’ In re E.M., 249 N.C. App. 44, 51 … (2016)”. Unlike In re E.M., where the decision to cease reunification efforts was orally rendered at the hearing, the decision in this case regarding reunification efforts was not made until the November PPO was entered; the court’s oral rendition in September did not address reunification efforts. Therefore, the matter was pending on October 1st making the amendment applicable.
  • The argument over which version of G.S. 7B-906.2(b) is irrelevant; guardianship was not ordered until October and although a subsequent order was entered, the court was required to make all findings under G.S. 7B-906.2(b) and (d).
    • Author’s Note: This opinion refers to a findings by clear and convincing evidence but does not address NC Supreme Court opinions that the standard is competent evidence and not clear, cogent, and convincing evidence. See, e.g., In re L.E.W., 375 N.C. 124 (2020); see also In re L.M.T., 367 N.C. 165, 180 (2013).  
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
Findings of Fact
Tags:
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7B-906.2(b)
7B-906.2(d)
findings
pending
legislation