An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-938

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

IN THE MATTER OF: Madison County

No. 11 JA 36

B.K.

Appeal by respondent-mother from order entered 5 October 

2012 by Judge F. Warren Hughes in Madison County District Court. 

Heard in the Court of Appeals 27 February 2014.

Larry Leake, for petitioner-appellee Madison County 

Department of Social Services.

Windy H. Rose, for respondent-appellant mother.

Womble Carlyle Sandridge & Rice, LLP, by Whitney A. 

Passmore, for guardian ad litem.

CALABRIA, Judge.

Mother (“respondent”) appeals from a permanency planning 

order awarding guardianship of B.K. (“Bryson”)1 to his paternal 

grandparents. We affirm in part and remand in part.

I. Background

 

1 We use this pseudonym to protect the juvenile’s privacy and for 

ease of reading.
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On 1 August 2011, the Madison County Department of Social 

Services (“DSS”) obtained non-secure custody of Bryson after 

filing a petition alleging that Bryson’s parents were using 

methamphetamine and other drugs and that Bryson was a neglected 

and dependent juvenile. The petition also alleged that a Child 

Abuse Medical Evaluation had been completed, and the findings 

were consistent for neglect due to exposure to domestic violence 

and substance abuse. Bryson’s one-year-old niece, who had also 

been in the home2, tested positive for methamphetamine in a hair 

follicle test. The petition further alleged that respondent was 

incarcerated, that Bryson’s father was a fugitive wanted for 

felony offenses, and that Bryson had been placed with James and 

Judy Fowler, his paternal grandparents. According to the 

petition, Bryson’s needs were being met by his grandparents, but 

they had no legal means of acquiring medical care or academic 

services for him. 

The trial court adjudicated Bryson dependent based upon the 

consent of both parents. In subsequent disposition orders, the 

trial court continued custody of Bryson with DSS and ordered 

respondent to comply with her case plan, including completion of 

a mental health assessment. The trial court was concerned that 

 

2 Only Bryson is the subject of this appeal.
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respondent needed mental treatment and appointed a Guardian ad 

litem for her. The Guardian ad litem reported to the trial 

court that respondent had submitted a fraudulent psychological 

evaluation to the court during a previous hearing in the instant 

case. The court ordered visitation ceased pending further 

orders, Bryson’s placement with his grandparents to continue, 

“appropriate action” for respondent’s perjury regarding the 

false evaluation, and a further permanency planning hearing on 

27 August 2012. 

At the permanency planning hearing, DSS presented evidence 

through the testimony of one social worker. Respondent did not 

offer any evidence. In an order entered 5 October 2012, the 

trial court found that it was not possible for Bryson to return 

home within the next six months and awarded guardianship of 

Bryson to his paternal grandparents. Respondent is the only 

parent to appeal this order. 

As an initial matter, we note that respondent filed her 

notice of appeal on 9 May 2013, well outside the thirty day 

provision of Rule 3 of the North Carolina Rules of Appellate 

Procedure. N.C.R. App. P. 3(c) (2012). Generally, failure to 

comply with Rule 3 of our Rules of Appellate Procedure requires 

dismissal of the appeal. In re I.S., 170 N.C. App. 78, 84, 611 
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S.E.2d 467, 471 (2005). However, under appropriate 

circumstances, “[t]his Court can exercise its discretion and 

treat an appellant’s appeal as a petition for a writ of 

certiorari.” Id. (citations omitted). Since cases regarding 

parental rights have such serious consequences and DSS did not 

contest respondent’s failure to comply with Rule 3, we exercise 

our discretion to grant certiorari and address the merits of 

respondent’s appeal. 

II. Permanency Planning Hearing

Respondent first argues that the trial court erred by 

failing to make sufficient findings required by N.C. Gen. Stat. 

§ 7B–907(b) (2011).

3 Specifically, she contends that the trial 

court failed to make any findings explaining why Bryson could 

not be returned home within six months. We disagree. 

“The purpose of the permanency planning hearing shall be to 

develop a plan to achieve a safe, permanent home for the 

juvenile within a reasonable period of time.” N.C. Gen. Stat. § 

7B-907(a) (2011). If the juvenile is not returned home, the 

 

3 This section was repealed on 1 October 2013 and replaced by 

N.C. Gen. Stat. § 7B-906.1(e) (2013). The effective date is 

applicable to actions filed or pending on or after this date. 

N.C. Session Laws 2013-129, §§ 25, 26, 41. Because the order at 

issue was entered on 5 October 2012, N.C. Gen. Stat. § 7B-907(b) 

still applies to respondent’s case. 
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statute requires the trial court to consider and make written 

findings regarding the relevant statutory factors:

(1) Whether it is possible for the juvenile 

to be returned home immediately or within 

the next six months, and if not, why it is 

not in the juvenile’s best interests to 

return home;

(2) Where the juvenile’s return home is 

unlikely within six months, whether legal 

guardianship or custody with a relative or 

some other suitable person should be 

established, and if so, the rights and 

responsibilities which should remain with 

the parents; 

. . .

(4) Where the juvenile’s return home is 

unlikely within six months, whether the 

juvenile should remain in the current 

placement or be placed in another permanent 

living arrangement and why; 

. . .

(6) Any other criteria the court deems 

necessary.

N.C. Gen. Stat. § 7B-907(b) (2011). “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 

J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), 

overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 

S.E.2d 489 (2005). “If the trial court’s findings of fact are 
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supported by any competent evidence, they are conclusive on 

appeal.” Id.

In the instant case, according to the trial court’s 

findings, both of Bryson’s parents were incarcerated, and he had 

been in DSS custody for more than twelve months. Respondent had 

made limited efforts toward her case plan, and DSS had made

reasonable efforts to reunite the family. The trial court also 

found that it was not possible for Bryson to return home in six 

months. Bryson’s placement with his paternal grandparents was 

an appropriate placement where he was doing well. Both the 

Guardian ad litem and DSS agreed that DSS custody should be 

terminated and Bryson’s paternal grandparents should be granted 

guardianship. 

Respondent contends that none of the findings explain why

Bryson could not be returned home within six months. However, 

the trial court specifically found that respondent was 

incarcerated. The social worker who testified for DSS at the 

hearing indicated she did not know whether respondent was 

awaiting trial or had been sentenced for the perjury offense

concerning her fraudulent psychological evaluation. The record 

also indicates that respondent faced additional pending charges 

in Tennessee at the time of the hearing. Respondent’s ongoing 
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legal issues and incarceration were also factors in the trial 

court’s award of custody to DSS in the 1 August 2011 Non-secure 

Custody Order finding Bryson was receiving improper care and 

supervision from his parents. Although the trial court’s 

findings of fact are sparse, they sufficiently explain why 

Bryson could not be returned home within the next six months,

and comply with N.C. Gen. Stat. § 7B-907(b).

III. Guardianship

Respondent also argues that the trial court erred by 

awarding guardianship to the grandparents without making the 

verifications required by N.C. Gen. Stat. §§ 7B-600 and 7B907(f)4 (2011). We agree.

When it is not in a juvenile’s best interests to return 

home and a trial court appoints a guardian for the juvenile as 

the juvenile’s permanent plan, “the court shall 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) (2011); see also N.C. Gen. Stat. § 7B-907(f)

(2011) (providing for the same verification). This Court has 

previously held that the trial court is not required to “make 

 

4 This section was also repealed and replaced by N.C. Gen. Stat. 

§ 7B-906.1(j). N.C. Session Laws 2013-129, §§ 25, 26. 
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any specific findings in order to make the verification.” In re 

J.E., 182 N.C. App. 612, 616–17, 643 S.E.2d 70, 73 (2007).

In J.E., the trial court received into evidence and 

considered home study reports for the juveniles’ grandparents, 

who were subsequently appointed as guardians. DSS noted that 

the maternal grandparents both had raised children in the past, 

and were aware of the importance of structure and consistency 

for children. The maternal grandparents also understood the 

responsibility of caring for the juveniles, were committed to 

raising the juveniles, and were financially capable of providing 

for the juveniles’ needs. Id. at 617, 643 S.E.2d at 73. This 

Court concluded that the findings in the home study reports were 

sufficient to demonstrate that the trial court complied with the 

requirements of N.C. Gen. Stat. § 7B-907(f) and § 7B-600(c). 

Id., 643 S.E.2d at 73. 

The length of time that a guardian has successfully raised a 

juvenile is also a factor that may support the trial court’s 

finding that the guardians understand the legal significance and 

have adequate resources. In re R.A.H., 182 N.C. App. 52, 58, 

641 S.E.2d 404, 408 (2007). 

In the instant case, neither of the grandparents testified 

at the hearing. The record includes a DSS court report and a 
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guardian ad litem report, as well as a letter from Bryson’s 

therapist. However, only the therapist’s letter was presented 

at the hearing. No home study report was entered into evidence. 

The DSS court report, guardian ad litem report, and letter all 

indicate that Bryson was doing well in his placement and that 

his grandparents were committed to Bryson’s long term care, but 

none of them confirm that his grandparents understood the legal 

significance of the appointment or had resources to 

appropriately care for Bryson. Nevertheless, the trial court 

awarded guardianship to Bryson’s grandparents, but made no 

findings that they understood the legal significance of the 

appointment or had adequate resources to appropriately care for 

Bryson. In addition, while the guardians in R.A.H. had raised 

the juvenile for six years, in the instant case Bryson had only 

been placed with his grandparents for approximately one year at 

the time of the hearing, and no additional evidence was 

presented regarding the required verification. Therefore, we 

hold that the trial court erred by failing to make the 

verifications required by N.C. Gen. Stat. §§ 7B-600(c) and 7B907(f). 

IV. Conclusion

The trial court’s findings adequately address the relevant 
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factors of N.C. Gen. Stat. § 7B-907(b). Where the court found 

that Bryson could not be returned home within six months, the 

court made additional findings that indicated the incarceration 

of both parents was at least one of the reasons. However, 

despite the grandparents’ apparent willingness to care for 

Bryson, the trial court made no findings and heard no evidence 

to indicate that the grandparents were aware of the legal 

significance of guardianship or had adequate resources to 

appropriately care for Bryson, and therefore failed to complete 

the statutorily required verification. Accordingly, we affirm 

the portion of the trial court’s order regarding guardianship 

for Bryson’s permanency plan and remand to the trial court for 

findings regarding appointment of Bryson’s guardians in 

accordance with N.C. Gen. Stat. §§ 7B-600(c) and 7B-907(f).

Affirmed in part and remanded in part.

Judges ELMORE and STEPHENS concur.

Report per Rule 30(e).