In re J.T.S., 268 N.C. App. 61 (2019)

Affirmed in Part
Vacated and Remanded in Part
  • Facts: Respondent mother appeals from an August 17, 2018 permanency planning order that awards guardianship to the maternal grandparents and waives review hearings under G.S. 7B-906.1(n), arguing the children had not resided with the grandparents for a continuous period of at least one year. The court made a finding that the children were placed with their maternal grandparents since Oct. 2017, and before that the children had spent previously resided with their grandparents.
  • Standard of review: Questions of statutory interpretation are questions of law that are reviewed de novo.
  • Holding & Rationale: G.S. 7B-906.1(n) allows the court to waive further reviews if the court finds by clear, cogent, and convincing evidence each of the 5 factors, the first of which is “the juvenile has resided in the placement for a period of at least one year.” Because “a period of at least one year” is ambiguous, the court looks to the purposes of the Juvenile Code to determine the intent of G.S. 7B-906.1(n). Given the purpose of achieving a safe permanent home within a reasonable period of time and the required findings of G.S. 7B-906.1(n) that address a stable and continuing placement with a permanent guardian or custodian, a period of at least one year means “a continuous, uninterrupted period of at least 12 months” and not an aggregation of interrupted, sporadic placements. Sl. Op. at 14. This opinion is distinguished from In re T.P., 217 N.C. App. 181 (2011), which allowed for the 12 month period to span over different relatives. In In re T.P., the language of G.S. 7B-906.1(n) differed and referred to a juvenile who had resided with a relative or custodian versus today’s language that the juvenile resided in the placement. Here, the findings do not support the conclusion of law; this portion of the permanency planning order is vacated.
  • Preserve for appeal: Although respondent did not object to this issue at trial, “when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action in preserved notwithstanding [the] defendant’s failure to object at trial.” Sl.Op. at 9 (citation omitted). Failure to make written findings of each of the enumerated criteria in G.S. 7B-906.1(n) is reversible error.
Abuse, Neglect, Dependency
Permanency Planning Hearing
Waive 7B-906.1 Hearings
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