In re K.B., _ N.C. App. _ (August 1, 2023)

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Held:

Affirmed in Part; Vacated in Part; and Remanded

There is a dissent

by Stroud, J.

Facts: This matter involves three juveniles adjudicated neglected and dependent. All three juveniles were placed with their great aunt, a North Carolina resident, within a week of the petition’s filing. Following adjudication, the initial dispositional order set the primary plan as reunification and the secondary plan as custody with a court approved caretaker. The court continued to hold dispositional hearings and enter orders for the following three years, during which placement continued with their great aunt. During this time, the court ordered that the grandmother, a Georgia resident, be considered for placement and that an ICPC home study assessment be made by Georgia officials. A later ordered ceased reunification efforts and shifted the primary plan to guardianship with a secondary plan of adoption. After hearings over several months and prior to the completion of the grandmother’s home study, the court granted guardianship of the children to the great aunt and granted mother, a Georgia resident, voluntary electronic visitation twice a week. The court noted the matter closed, relieved DSS and the GAL of further responsibilities, but retained jurisdiction. Mother appeals.
Before awarding guardianship, the court must determine the proposed guardian understands the legal significance of the placement pursuant to G.S. 7B-600. Specific findings are not required, but the record must show “the trial court received and considered adequate evidence on this point.” Sl. Op. at 3-4 (citation omitted).
Evidence shows the trial court received adequate evidence of the guardian’s understanding of the legal significance of the placement. The court received evidence including that the children had been living with the great aunt for three years during which time she provided care such as scheduling and taking them to medical appointments and meeting teachers, and the great aunt testified that she wanted and was willing to continue providing care, understood her obligations to comply with court orders involving the children, and acknowledged the greater control of a guardian.
The trial court should consider the children’s best interest when placing them in ‘out-of-home’ care, but “[p]lacement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children [ICPC].” G.S. 7B-903(a1).
“Where the ICPC applies, ‘a child cannot be placed with an out-of-state relative until favorable completion of an ICPC home study.’ “ Sl. Op. at 5 (citation omitted) (emphasis in original). However, “[t]here is no obligation under the ICPC that a home study by completed to rule out an out-of-state relative as a placement option.” Sl. Op. at 5 (emphasis in original).
No abuse of discretion to award guardianship to the great aunt, an in-state person, without the benefit of the completed previously ordered home-study of the grandmother, an out-of-state person. The order granting guardianship to the great aunt is based on the children’s best interests and supported by findings and conclusions, most notably that the juveniles had lived with the great aunt for three years and had bonded with her. “[I]t is only when a trial court judge actually places a child with an out-of-state person that the trial court lacks discretion to make that placement without the benefit of a home study of that person, because such study is required under the ICPC.” Sl. Op. at 7 (emphasis in original).
Stating in the decretal portion of the order that “the matter is closed and DSS and its counsel are released and relieved of further responsibilities regarding this matter,” but noting retention of jurisdiction, is not error. The clause is not read as preventing mother from filing motions in the future concerning her children, as her parental rights have not been terminated and she was granted visitation rights by the court. Sl. Op. at 7-8.
Dissent: The majority improperly reviewed the issue concerning the home study requirement under the ICPC for “abuse of discretion rather than de novo,” as the issue addresses statutory compliance under G.S. 7B-903(a1). Dissent at 2 (citation omitted). Under the court’s prior caselaw, “the ICPC definitively applies to the situation here where there is a potential placement with an out-of-state relative, [g]randmother.” Dissent at 3-4. The court’s interpretation that the ICPC only applies when a child is actually placed with an out-of-state relative contradicts (1) the purpose the Juvenile Code in attaining permanency as soon as possible, and (2) the purpose of the ICPC to exchange information between states to ensure any outside placement is not contrary to the best interests of the juvenile. Whether the court must wait for a completed ICPC home study when considering a potential placement with an out-of-state relative is decided on a case-by-case basis. In this case, the court was required to wait for the home study evaluating the grandmother as a potential placement, who was identified within days of the filing of the petition as potential placement. The home study was ordered three times with only DSS at fault for not complying with the court’s orders, while mother and grandmother continued to assert the need for the study throughout the proceedings. It cannot be assumed that the placement decision would be the same if the home study were received, as without the home study, “it is impossible to be certain what we, the parties, or the trial court would learn about [g]randmother’s home or her capacity to care for more children.” Dissent at 9.