
    In the MATTER OF: N.H.
    No. COA17-171
    Court of Appeals of North Carolina.
    Filed: September 19, 2017
    No brief filed for petitioner-appellee Buncombe County Department of Social Services.
    David A. Perez, Thomasville, for respondent-appellant mother.
    Amanda Armstrong, for guardian ad litem.
   CALABRIA, Judge.

Respondent appeals from an order granting guardianship of her minor child, N.H. ("Nancy"), to her sister, K.P. ("Ms. Parker"). We hold that there was evidence before the trial court that Ms. Parker has adequate resources to care appropriately for Nancy, and therefore that the trial court did not err in awarding guardianship of Nancy to Ms. Parker.

I. Factual and Procedural Background

The Buncombe County Department of Social Services ("DSS") initiated the underlying juvenile case on 23 March 2016, when it filed a juvenile petition alleging Nancy was an abused and neglected juvenile based on allegations that she had been sexually abused by respondent's former roommates, concerns of possible drug use by respondent, and concerns of domestic violence in the home. DSS did not seek non-secure custody of Nancy, because she was in a safety resource placement. On 15 April 2016, Nancy was transferred to the care of Ms. Parker, and she has remained in Ms. Parker's care throughout the case.

After a hearing on 6 July 2016, the trial court entered an order on 22 July 2016, adjudicating Nancy to be an abused and neglected juvenile. According to the order, Nancy remained in the legal custody of respondent and Nancy's father, but Nancy's safety resource placement continued with Ms. Parker. The court granted respondent weekly supervised visitation with Nancy and ordered that Nancy continue to be involved with outpatient mental health therapy. Additionally, the court ordered respondent to: (1) be involved in mental health treatment; (2) follow the therapist's recommendations; (3) follow up with the recommendations of her comprehensive clinical assessment; (4) participate in Nancy's therapy; (5) submit to random drug testing; and (6) complete a medication evaluation and follow all recommendations.

On 6 September 2016, the trial court conducted the initial permanency planning and review hearing in this case. In its order from the hearing, entered 21 November 2016, the court set the primary permanent plan for Nancy as guardianship and set the secondary plan as reunification with her parents. The court awarded guardianship of Nancy to Ms. Parker, granted respondent weekly supervised visitation with Nancy, and directed DSS to continue to work toward Nancy's reunification with her parents. Respondent filed timely notice of appeal from the trial court's order awarding guardianship of Nancy to Ms. Parker.

II. Verification of Guardian's Resources

Respondent's sole argument on appeal is that the trial court erred in failing to properly verify that Ms. Parker's resources were adequate to provide Nancy appropriate care as her guardian. We disagree.

A. Standard of Review

"Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and [whether] the findings support the conclusions of law."

In re R.A.H. , 182 N.C. App. 52, 57-58, 641 S.E.2d 404, 408 (2007) (citation and quotation marks omitted). Before a trial court may appoint a guardian of the person for a juvenile in a Chapter 7B case, the court must "verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile." N.C. Gen. Stat. § 7B-600(c) (2015), see also N.C. Gen. Stat. § 7B-906.1(j) (2015) (requiring an identical verification when appointing a guardian of a person for a juvenile as part of the juvenile's permanent plan). "[T]he trial court need not make detailed findings of evidentiary facts or extensive findings regarding the guardian's situation and resources, ... [but] some evidence of the guardian's 'resources' is necessary as a practical matter, since the trial court cannot make any determination of adequacy without evidence." In re P.A. , 241 N.C. App. 53, 61-62, 772 S.E.2d 240, 246 (2015). "The court may consider any evidence, including hearsay evidence ... that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-906.1(c).

B. Analysis

With regard to the adequacy of Ms. Parker's resources to care for Nancy as her guardian, the trial court found:

28. [Ms. Parker was] present at this hearing. Pursuant to N.C.G.S. § 7B-600(b), the Court questioned [Ms. Parker] and she understand[s] the legal significance of being appointed the minor child's guardian, and she has adequate resources to care appropriately for the minor child, and [is] able to provide proper care and supervision of the minor child in a safe home.

However, on appeal, respondent contends that there was no evidence presented to the trial court to support such a finding. For example, respondent notes that Ms. Parker "testified as to her employment with Buncombe County Schools Transportation, but she did not testify as to her actual income, whether she was paid a salary or worked by the hour, whether she received any job benefits, nor any other specifics regarding her employment other than she had no other source of income." Respondent notes various financial assets which Ms. Parker may or may not have had, and the fact that no testimony was elicited with respect to such hypothetical resources.

We acknowledge that our case law addresses this situation from numerous angles, none of them precisely on point. For example, in In re N.B. , guardians testified about their willingness to take responsibility, there was a report stating the guardians were willing and able to provide care, and the social worker spoke "in depth" with the guardians about the requirements and responsibilities of being guardians. We held that this was adequate evidence pursuant to N.C. Gen. Stat. § 7B-906.1. In re N.B. , 240 N.C. App. 353, 361-62, 771 S.E.2d 562, 568 (2015). By contrast, in In re P.A. , where the only evidence was an unsworn statement by the guardian that the guardian had the ability to support the juvenile, we held that this was insufficient. P.A. , 241 N.C. App. at 65, 772 S.E.2d at 248. Likewise, in In re J.H. , where there was a report in evidence but the proposed guardians did not testify, we held that this was insufficient. In re J.H. , --- N.C. App. ----, ----, 780 S.E.2d 228, 240 (2015).

In the instant case, there are two GAL reports and one DSS report in the record, and Ms. Parker was present in court and offered testimony. The first GAL report, dated 30 June 2016, notes that Ms. Parker "is employed with the school district[,]" but makes no other observations about Ms. Parker's resources. The second GAL report, dated 1 September 2016, notes that Ms. Parker "is employed as a school bus driver for the school district," and that Ms. Parker "is a single mom with no income when she is not driving a school bus during the summer[,]" but otherwise makes no other observations about Ms. Parker's resources. The DSS report, also dated 1 September 2016, notes that respondent has given Ms. Parker a total of $30 when Ms. Parker experienced "significant financial difficulties[,]" that DSS has provided Ms. Parker with "gift cards of $30 per month to assist with purchasing food and gas[,]" and that Ms. Parker "has experienced financial difficulties in this process[,]" but makes no specific findings as to Ms. Parker's resources aside from these.

At trial, Ms. Parker was questioned about her resources. Although she was not specifically questioned about her salary or benefits, her examination was still thorough:

Q. Okay. And so you're willing to be legally responsible for meeting all [Nancy]'s needs until she's 18 years old, is that correct?
A. Yes.
Q. And you understand that that means you would [be] responsible for meeting her medical needs, her dental needs, her psychological needs, her educational needs, and any other needs until she's 18, correct?
A. Yes.
Q. And you're comfortable with that?
A. Yes.
...
Q. Do you work outside the home?
A. Yes.
Q. Where do you work?
A. Buncombe County Schools Transportation.
Q. Okay. And do you have any other source of income?
A. No.
Q. After you are paid every month, do you have sufficient money to cover all of your household bills?
A. Yes.
Q. And after you pay all of your bills, do you have money left over to cover groceries and any other needs?
A. It depends on what bills, but yes, we make it.
Q. Have you ever been a position where you didn't have enough money to pay all the bills related to housing, food, medical, transportation?
A. Over this past summer, yes, because I wasn't able to be employed with the intense home therapy and stuff, but I did manage to save up money and it go[t] me through almost all of the summer. So-
Q. Why weren't you able to be employed over the summer?
A. Due to the nonapproved child care for [Nancy], I didn't have no one to leave her with.
Q. Okay. So you were unable to be employed this summer because you were caring for [Nancy]?
A. Yes. And then whenever she started intense home therapy, it's a requirement three to five days a week [inaudible]. I have to be involved in that.
Q. Okay. And you mentioned you were able to save up money to get you through the summer?
A. Yes.
Q. Okay. And if the Court were to award guardianship to you, what would be your plan for next summer?
A. Save up.
Q. Okay. So now that you-this summer you would be aware that you would not be able to be employed and you can save up throughout the year to cover your expenses during the summer?
A. Yes.
Q. Do you feel-
A. It was-it was more difficult because I had transitioned-I worked at a gas station and transitioned into the Buncombe County Transportation in, I think, March-at the end of March, and then I got [Nancy] and kind of put it on halt.
Q. Okay.
A. My plan was to have a summer job, so-
Q. Okay. Do you anticipate that you will have sufficient financial income to cover all of your expenses even during the summertime when you're not employed?
A. Yes.
Q. Okay. If you were to find that-say, for example, you ran out of money and needed financial assistance, do you have family that you could go to ask for help?
A. Yes.
Q. Okay. And would you be willing to do that if you had to?
A. Yes.
Q. And would you also know to reach out to the Department or other community resources to seek help if you needed to?
A. Yes.

Certainly, the statements in the GAL and DSS reports, as well as Ms. Parker's own testimony that she had financial difficulties over the summer, would constitute evidence that Ms. Parker lacked the resources to care for Nancy. However, our role on appeal is not to weigh and compare the evidence; our standard of review merely asks if there was competent evidence, even hearsay evidence, at trial to support the trial court's findings.

We hold that this matter is distinguishable from In re P.A. , in which the only evidence was an unsworn statement by the guardian that the guardian had the ability to support the juvenile, and from In re J.H. , in which the proposed guardians did not testify. In this case, there is sworn testimony by Ms. Parker regarding her ability to provide appropriate care for Nancy.

While Ms. Parker's testimony appears to be the only evidence in the record to support her having adequate resources to provide appropriate care for Nancy, it is nonetheless evidence in the record. No challenge was raised at trial with respect to this evidence, nor did any party attempt to contradict or impeach Ms. Parker's testimony. In fact, in respondent's attorney's closing arguments, counsel did not advocate against Ms. Parker being awarded guardianship, but rather in favor of reunification with respondent. We hold that, although Ms. Parker's testimony was lacking in specificity, her sworn statement that she was willing to care for Nancy and possessed the financial resources to do so constituted competent evidence, which in turn supported the trial court's finding that she "has adequate resources to care appropriately for the minor child[.]"

AFFIRMED.

Judge DILLON concurs in a separate opinion.

Judge DAVIS dissents in a separate opinion.

DAVIS, J., dissenting.

Because I believe the majority's opinion is inconsistent with both the statutory provision at issue and the relevant prior opinions of this Court, I respectfully dissent. The only issue in this appeal is whether the trial court erred in failing to properly verify that Ms. Parker possessed the financial resources necessary to adequately care for Nancy. Subsection (j) of N.C. Gen. Stat. § 7B-906.1 states that

[i]f the court determines that the juvenile shall be placed in the custody of an individual other than a parent or appoints an individual guardian of the person pursuant to G.S. 7B-600, the court shall verify that the person receiving custody or being appointed as guardian of the juvenile understands the legal significance of the placement or appointment and will have adequate resources to care appropriately for the juvenile .

N.C. Gen. Stat. § 7B-906.1(j) (2015) (emphasis added).

This Court has held that in order to meet this verification requirement, "the record must contain competent evidence of the guardians' financial resources and their awareness of their legal obligations." In re J.H. , --- N.C. App. ----, ----, 780 S.E.2d 228, 240 (2015) (citation omitted). "The court may consider any evidence, including hearsay evidence ... that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-906.1(c) (2015). Such evidence may include reports and home studies conducted by the guardian ad litem ("GAL") or department of social services ("DSS"). In re J.E., B.E. , 182 N.C. App. 612, 617, 643 S.E.2d 70, 73, disc. review denied , 361 N.C. 427, 648 S.E.2d 504 (2007).

It is instructive to examine prior decisions in which this Court has concluded that the verification requirement contained in N.C. Gen. Stat. § 7B-906.1(j) was not satisfied. In re P.A. , 241 N.C. App. 53, 772 S.E.2d 240 (2015) involved a trial court's award of guardianship of the minor child to his father's girlfriend, "Ms. Smith." At the permanency planning hearing, Ms. Smith was asked if she had (1) "the financial and emotional ability to support this child and provide for its needs"; (2) "the willingness to reach out when your resources are running out"; and (3) the "prepared[ness] to support this minor child...." Id. at 59-60, 772 S.E.2d at 245. She answered "yes" in response to each of these questions. Id.

On appeal, the respondent-mother argued that "the trial court [had] failed to verify that Ms. Smith had adequate resources to care appropriately for [the minor child]...." Id. at 58, 772 S.E.2d at 245. We agreed, holding that Ms. Smith's conclusory answers alone were "insufficient to support the trial court's finding...." Id. at 60, 772 S.E.2d at 245. We observed that the record did not present actual evidence of Ms. Smith's financial resources, but instead presented "Ms. Smith's own opinion of her abilities." Id. at 65, 772 S.E.2d at 248. Because her opinion as to her ability to care for the child was not sufficient to show that she actually had adequate resources to care for him, we ruled that "[t]he trial court ha[d] the responsibility to make an independent determination, based upon facts in the particular case, that the resources available to the potential guardian are in fact 'adequate.' " Id. (citation, quotation marks, and brackets omitted). We further stated that although the verification requirement under N.C. Gen. Stat. § 7B-906.1(j) does not mandate "detailed findings of evidentiary facts or extensive findings regarding the guardian's situation and resources[,]" this statute does require "some evidence of the guardian's 'resources' ... as a practical matter, since the trial court cannot make any determination of adequacy without evidence." Id. at 61-62, 772 S.E.2d at 246.

On several other occasions, we have likewise rejected a trial court's determination that a prospective guardian possessed adequate resources for purposes of N.C. Gen. Stat. § 7B-906.1(j). In J.H. , the juvenile had been previously placed with his maternal grandparents at the time the trial court entered a permanency planning order awarding guardianship to the grandparents. At the hearing, the court was presented with reports from both the DSS and the GAL. J.H. , --- N.C. App. at ----, 780 S.E.2d at 240 (2015). The DSS report stated that the grandparents had met all of the child's "well-being needs" and "medical needs[,]" including "making sure that he has his yearly well-checkups." Id. at ----, 780 S.E.2d at 240 (quotation marks omitted). The GAL report stated that the child "had no current financial or material needs." Id. at ----, 780 S.E.2d at 240 (quotation marks omitted). The reports also showed that the grandparents had custody of the minor child's sister. Based on these reports alone, the trial court found that the grandparents had adequate resources to care for the child. Id. at ----, 780 S.E.2d at 240.

On appeal, this Court vacated the trial court's order and remanded on the ground that the evidence contained in these reports was "insufficient to support a finding that [the minor child's] grandparents have adequate resources to care for [him]." Id. at ----, 780 S.E.2d at 240 (citation and quotation marks omitted). In so holding, we stated that "[t]he trial court ... failed to make an independent determination, based upon facts in the particular case, that the resources available to the potential guardian are in fact adequate." Id. at ----, 780 S.E.2d at 240 (citation and quotation marks omitted).

Similarly, in In re T.W. , --- N.C. App. ----, 796 S.E.2d 792 (2016), we held that the trial court erred in awarding legal custody to the minor child's aunt because it had not verified that she would have adequate resources to care for the child. At the permanency planning hearing, the aunt testified that "she had yet to find employment and was just continuously looking for jobs" and had received "additional support and assistance" from her mother and grandmother so as to enable her to provide care for the juvenile. Id. at ----, 796 S.E.2d at 798. The trial court received a GAL report that described the aunt's home as "very clean" and stated that the child would have "his own room." Id. at ----, 796 S.E.2d at 798. However, we determined that this evidence did not support the trial court's finding that the aunt had adequate resources to care for the child. We stated that "vague assurances do not suffice to allow an independent determination by the court, based upon the facts in the particular case, that the resources available to the potential custodian are in fact 'adequate' for purposes of N.C. Gen. Stat. § 7B-906.1(j)." Id. (citation and quotation marks omitted).

In the present case, the only witness who testified at the 6 September 2016 permanency planning hearing on this issue was Ms. Parker herself. She testified that she had previously been employed as a bus driver during the prior school year. She stated, however, that she had been unable to obtain employment during the summer of 2016 because she had to participate in Nancy's intensive home therapy and other needs. She further conceded that her lack of employment during the summer months had resulted in her not having enough funds to pay all of her bills. She stated that she had been able to save up some money, which got her "through almost all of the summer."

Nevertheless, she answered in the affirmative when asked (1) whether she would have "sufficient financial income to cover all of [her future] expenses"; (2) whether she "ha[d] family that [she] could go to ask for help"; and (3) whether she would "know to reach out to [DSS] or other community resources to seek help if [she] needed to." In addition, she stated that her future plan for the following summer would be to "[s]ave up" and that she anticipated she would have sufficient income to cover her expenses next summer.

Rather than demonstrating that N.C. Gen. Stat. § 7B-906.1(j) had been satisfied, both Ms. Parker's testimony and the reports prepared by DSS and the GAL supported the opposite conclusion-that she lacked the financial resources to care for Nancy. Ms. Parker did not testify as to her actual income, her job benefits, or any other specific information regarding her finances. Moreover, she did not specify the amount of money she was lacking to pay her bills during her financial shortfall during the summer of 2016.

The DSS and GAL reports unambiguously showed that Ms. Parker has struggled financially while caring for Nancy. The GAL's report stated that Ms. Parker had a problem with transporting Nancy to visits, because she "is a single mom with no income when she is not driving a school bus during the summer." The report prepared by DSS further stated, in pertinent part, as follows:

[Ms. Parker] had to cancel a recent orthopedic appt. due to transportation difficulties....
....
[Ms. Parker] has experienced financial difficulties in this process as she has provided transportation for the child for visitations, mental health appointments, physician appointments, school registration, etc. as well as providing for the minor child's basic needs.
....
Respondent mother has given the caregiver, [Ms. Parker], a one[-]time amount of $20 followed recently by a $10 support during times when [Ms. Parker] has experienced significant financial difficulties....
....
... The agency has provided the caregiver, [Ms. Parker], with gift cards of $30 per month to assist with purchasing food and gas.... [Social Worker] Banks made [a] referral to the Bair Foundation which has offered [Ms. Parker] some assistance with school supplies.

This evidence-in addition to Ms. Parker's own testimony about her lack of funds-demonstrated that Ms. Parker lacked the resources necessary to act as Nancy's guardian. As stated above, her own opinion of her future ability to financially care for Nancy, without more, was insufficient to support the court's finding that she possessed adequate resources as required under N.C. Gen. Stat. § 7B-906.1(j). See In re P.A. , 241 N.C. App. at 65, 772 S.E.2d at 248.

It is important to note that this is not a case in which there was conflicting evidence on this issue as to which it was the trial court's duty to weigh. To the contrary, the only evidence other than Ms. Parker's vague assurances showed that she has struggled to make ends meet. N.C. Gen. Stat. § 7B-906.1(j) clearly requires that before a person is appointed as guardian for a juvenile competent evidence must be presented that the prospective guardian will actually have adequate resources to take care of the child's needs. Here, such evidence simply was not presented to the trial court.

For these reasons, I would hold that the trial court's finding that Ms. Parker "has adequate resources to care appropriately for the minor child" is unsupported by the competent evidence presented at the permanency planning and review hearing and that the trial court's order must be vacated. Accordingly, I dissent.

DILLON, Judge, concurring.

In this matter, the trial court entered an order granting Ms. Parker guardianship over N.H. Our General Assembly requires that a trial court considering the appointment of a guardian must first verify that the potential guardian "will have adequate resources to care appropriately for the juvenile." N.C. Gen. Stat. § 7B-906.1(j) (emphasis added). The sole issue here is whether there was sufficient evidence before the trial court for it to determine that Ms. Parker had adequate resources to care for N.H. in the future . Whether the evidence was sufficient in this case is a close question. But based on our binding jurisprudence on the issue, we must conclude that the evidence presented at the hearing was sufficient.

I believe that this case is more similar to In re J.E. , 182 N.C. App. 612, 643 S.E.2d 70 (2007) (holding that the trial court's consideration of a home study was "adequate compliance" with the relevant statutes), than the three cases relied on in the dissenting opinion- In re P.A. , 241 N.C. App. 53, 772 S.E.2d 240 (2015), In re J.H. , --- N.C. App. ----, 780 S.E.2d 228 (2015), and In re T.W. , --- N.C. App. ----, 796 S.E.2d 792 (2016) -in which we held the evidence to be insufficient to justify the trial court's course of action. Specifically, like in In re J.E. , and unlike the three cases relied on in the dissent, there was evidence at the hearing in this matter that the current income of the prospective guardian, Ms. Parker, was adequate to care for the juvenile going forward. Specifically, Ms. Parker testified that she was employed as a bus driver and that her income was sufficient to cover her expenses in caring for N.H. with some left over for savings. Accordingly, I concur with the majority. I write separately to highlight the distinction between In re J.E. and the three cases relied upon in the dissent.

The key distinction between In re J.E. and the three cases relied upon in the dissenting opinion is that in In re J.E. there was at least some evidence regarding the prospective guardian's resources to care for the minor in the future . In the three cases relied upon in the dissent, the evidence we found insufficient consisted of nothing more than evidence that (1) the prospective guardian had adequately cared for the juvenile in the recent past , and (2) a conclusory statement that the prospective guardian would be able to care for the juvenile in the future, without any reference to the evidence forming the basis of the opinion.

In In re J.E. our Court held that evidence which consisted of a conclusion by DSS that the prospective guardians "have adequate income and are financially capable of providing for the needs of [the juvenile]" was sufficient. In re J.E. , 182 N.C. App. at 617, 643 S.E.2d at 73 (emphasis added). In other words, the distinguishing factor was that the trial court had some evidence regarding the current income of the prospective guardians, which our Court held was sufficient even though there was nothing in our opinion to suggest that the trial court itself delved into the math in its investigation of the guardians' resources. Our Court in In re P.A. (one of the three opinions relied upon in the dissent) held that the conclusion by DSS in In re J.E. distinguished In re J.E. from In re P.A. , where there was no evidence regarding the prospective guardian's current resources to care for the juvenile going forward:

In re J.E. is easily distinguishable from this case based upon the extensive evidence regarding the guardians presented in that case, which included the two home study reports.
It is correct that the trial court need not make detailed findings of evidentiary facts or extensive findings regarding the guardian's situation and resources, nor does the law require any specific form of investigation [by the trial court ] of the potential guardian . But the statute does require the trial court to make a determination that the guardian has "adequate resources" and some evidence of the guardian's "resources" is necessary as a practical matter[.]

In re P.A. , 241 N.C. App. at 61-62, 772 S.E.2d at 246 (citations omitted) (emphasis added).

Like in In re J.E. the evidence in the present case consisted of more than just a conclusory opinion by Ms. Parker that she could care for N.H. The evidence also consisted of her testimony about her job and the income from her job. This testimony appears almost identical to the conclusion by DSS in In re J.E. It may be argued that such testimony from the guardian herself is not as credible as similar testimony from DSS, but this issue goes to the weight of the evidence, not its sufficiency . Accordingly, based on our holding in In re J.E. , I fully concur in the majority opinion holding that the trial court had sufficient evidence to make a determination regarding the adequacy of Ms. Parker's resources to care for N.H. 
      
      Pseudonyms are used throughout to protect the juvenile's privacy and for ease of reading.
     
      
      Ms. Parker essentially testified that she worked as a school bus driver, that she had cared for N.H. during the prior school year and was able to save money during the year, that she was out of work during the summer where she spent her savings and ran out of money, but that at the time of the hearing she was again employed as a bus driver and the income was sufficient to cover her needs and the needs of N.H.
     
      
      In re P.A. , 241 N.C. App. at 58, 772 S.E.2d at 245 (prospective guardian's opinion that she could and would care for the juvenile was insufficient to allow the trial court to make an independent determination regarding the guardian's resources going forward); In re J.H. , --- N.C. App. at ----, 780 S.E.2d at 240 (trial court failed to consider any evidence regarding the potential guardians' current resources when it considered that the guardians had a history of caring for the juvenile in the past); In re T.W. , --- N.C. App. at ----, 796 S.E.2d at 797 (evidence that the home of the potential guardian was suitable in size and condition to care for the juvenile and a vague assurance that the guardian was looking for work to provide for the juvenile in the future was insufficient).
     
      
      "DSS" refers to the two departments of social services which had been involved in the matter.
     