In re E.M., 249 N.C. App. 44 (2016)

Affirmed in Part
Vacated and Remanded in Part
  • GS 7B-906.1(j) requires that the court verify a non-parent who is being awarded custody (or guardianship) of a child (1) has adequate resources to appropriately care for the child and (2) understands the legal significance of the placement.
  • Regarding adequate resources, the court must make this determination based on competent evidence that is not merely conclusory, indirect, or inferential of the guardian’s resources. The court’s determination that the child’s paternal cousins (a married couple) had sufficient resources to care for the child was supported by findings of fact, based on competent evidence, that described (1) the cousin’s home, child’s bedroom, and child’s play areas; (2) the cousins’ employment; (3) the type of care the child receives, including that the child’s medical and developmental needs were being met and that he “lacks for nothing” in terms of toys; and (4) the activities the family engages in, such as vacations and a birthday party on the child’s first birthday.
  • The court must base its determination that a nonparent understands the legal significance of a placement that awards custody (or guardianship) to him/her on competent evidence for each potential person who the court is considering awarding custody. Citing In re L.M., 767 S.E.2d 430 (2014), sufficient evidence may include (1) testimony from the potential custodian/guardian, (2) a signed guardianship agreement that acknowledges an understanding of the legal significance, or (3) social worker testimony. There was no evidence of either potential custodians' (a married couple) understanding of the legal significance of the placement. The husband did not testify; the wife’s testimony did not include her understanding of the significance of the legal relationship; and the DSS report did not address the custodians’ understanding of the significance of the legal relationship.
Abuse, Neglect, Dependency
Disposition (All Stages Post-Adjudication)
Custody Order
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