In re J.A.S.F., ___ N.C. App. ___ (May 21, 2025)
Held:
Vacated and Remanded
- Facts: Mother challenges the permanency planning order awarding guardianship of her three children to the children’s foster parents. The two older children were adjudicated neglected and dependent based on domestic violence incidents between Mother and Father occurring in the presence of the children and concerns for the parents’ mental health and substance use. During the pendency of the proceedings for the older children, Mother gave birth to a third child who was ultimately adjudicated neglected and dependent. At the final permanency planning hearing for all three children, the trial court changed all primary plans to guardianship and secondary plans to adoption. After receiving the DSS report, GAL report, and prospective guardians’ affidavits, the trial court adopted the DSS recommendations and awarded guardianship of the children to the foster parents and continued Mother’s supervised visitation. Mother argues the PPO was not supported by competent evidence since the trial court did not receive oral testimony at the hearing. The court of appeals did not address Mother’s other arguments on appeal after determining the PPO was not supported by the evidence.
- Appellate review of permanency planning orders “is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law.” Sl. Op. at 7 (citation omitted). Dispositional determinations are reviewed for abuse of discretion. Conclusions of law are reviewed de novo.
- G.S. 7B-906.1 allows the trial court to consider any evidence at permanency planning hearings “the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” G.S. 7B-906.1(c). The court of appeals has held that conclusions of law in a permanency planning order were made in error when the findings of fact were based solely on court reports, prior orders, and the arguments of counsel (though counsel statements are not considered evidence) and no oral testimony was received. In contrast, the court of appeals has held it was not error under an identical evidentiary standard in G.S. 7B-901(a) for an initial disposition order to rely on court reports and prior orders alone if “these sources of fact are sufficient to support the trial court’s conclusions of law and its ultimate disposition[.]” Sl. Op. at 9 (citation omitted).
- The trial court’s findings of fact were unsupported by the evidence and the conclusions of law were erroneous. The trial court relied on court reports and the prospective guardians’ affidavits without any sworn oral testimony. The court of appeals rejected the argument of the GAL and DSS that the affidavits were testimonial in nature because they “fail to satisfy this Court’s requirement for live ‘oral testimony’ at the permanency planning hearings.” Sl. Op. at 11, n.4. The court of appeals acknowledged the tension between its precedential cases addressing the same evidentiary standard applicable to initial disposition and permanency planning. However, as the supreme court has not held that the oral testimony requirement is applicable to the dispositional stage of juvenile proceedings nor overruled the line of court of appeals cases imposing the requirement in permanency planning hearings, the court is bound by its precedent.
Category:
Abuse, Neglect, DependencyStage:
Permanency Planning HearingTopic:
Evidence