In re D.S., 260 N.C. App. 194 (2018)

Vacated and Remanded
  • Facts & Procedural History: Sometime after the 2015 neglect and dependency petition, the child was adjudicated neglected and dependent and was placed in DSS custody. In December 2016, a permanency planning order awarded guardianship of the child to Ms. Green, a non-relative. Respondent father appealed. The appellate opinion determined that the findings that Ms. Green had adequate resources to appropriately care for the child was not supported by evidence, vacated the permanency planning order, and remanded the case for further proceedings. On remand, the trial court limited the hearing to the issue of whether Ms. Green had adequate resources. The trial court entered a supplementary order that incorporated the December 2016 permanency planning and guardianship order, made findings that Ms. Green had adequate resources, and ordered guardianship as the permanent plan. Respondent father appeals, arguing the trial court erred in appointing Ms. Green as guardian without first finding that it properly considered and rejected the paternal grandmother (a relative) as a placement. DSS argued respondent father waived this argument by not raising it in his prior appeal.
  • "When an order of a lower court is vacated, those portions that are vacated become void and of no effect.” Sl. Op. at 7 (citation omitted).  The previous permanency planning order was vacated in its entirety and the case was remanded for further proceedings. The case returned to the prior review and permanency planning orders, which was custody to DSS. After remand, the new order from the trial court, which re-incorporated findings and conclusions from the voided order, is a new single order from which respondents could raise any argument on appeal.
Abuse, Neglect, Dependency
Preserve Issue
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