IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-793

Filed 15 August 2023

Wilkes County, No. 20 JA 127

IN THE MATTER OF: P.L.E.

Appeal by respondent-mother from order entered 7 June 2022 by Judge 

William F. Brooks in Wilkes County District Court. Heard in the Court of Appeals

31 July 2023.

Sherryl Roten West for petitioner-appellee Wilkes County Department of Social 

Services.

Schell Bray PLLC, by Christina Freeman Pearsall, for guardian ad litem.

Garron T. Michael, Esq., for respondent-appellant mother.

TYSON, Judge.

Respondent-mother (“Respondent”) appeals from a permanency planning 

order, which awarded guardianship of her minor child, P.L.E. (“Phoebe”) to Phoebe’s 

foster parents (“Mr. and Mrs. M.”) and denied Respondent any visitation with Phoebe. 

See N.C. R. App. P. 42(b) (pseudonym used to protect the identity of minor). We

vacate the order and award of guardianship and remand for further proceedings.

I. Background

Wilkes County Department of Social Services (“DSS”) filed a petition on 23 

September 2020 alleging Phoebe was a neglected juvenile. DSS stated it had received 

two reports regarding Phoebe’s younger brother, “Blake,” almost two years old, who 
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was taken and admitted into the hospital by Respondent with significant bruising on 

19 August 2020. Blake had sustained several injuries, including a broken clavicle, 

torn frenulum, and extensive bruising to his throat and other protected areas. The 

injuries were non-accidental. A subsequent skeletal survey conducted on 14 

September 2020 showed Blake had suffered other bone breaks on the ulna and radius 

of his right arm and a distal portion of his left arm.

Due to Blake’s extensive and unexplained injuries, which purportedly occurred 

while Phoebe, age three, was living inside the family home, and the parents’ inability 

to identify the perpetrator, DSS alleged Phoebe was neglected. DSS asserted she did 

not receive proper care, supervision, or discipline and lived in an environment 

injurious to her welfare, where she was also at risk for abuse. No physical injuries to 

Phoebe were ever documented by DSS. Phoebe and Blake were placed with kinship,

their maternal great-aunt, as a safety placement.

The district court held the adjudication and disposition hearing on 26 October 

2020, yet failed to enter orders until over six months later on 8 June 2021. The trial 

court’s order adjudicated Phoebe as neglected, based upon facts stipulated to by the 

parties. The same day, the district court entered a disposition order, which kept 

Phoebe in DSS’ custody and approved her placement with Mr. and Mrs. M. after the 

maternal great-aunt stated she was unwilling or unable to continue caring for her. 

Blake was also placed with Mr. and Mrs. M. at this time. Respondent was denied any 
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visitation with Phoebe “during the pendency of the investigation pertaining to the 

abuse allegations related to [Blake].”

The initial review hearing was held on 25 January 2021. Three and one-half 

months later, on 10 May 2021, the trial court entered an order, which found 

Respondent had signed a case plan on 12 November 2020. The court found her

substantial progress on that plan, including she: (1) was in consistent contact with 

DSS; (2) was employed; (3) was residing in a stable home; (4) had started parenting 

classes; but, (5) had not scheduled her mental health or substance abuse assessments. 

Respondent had also been charged with misdemeanor child abuse based on the 

injuries allegedly sustained by Blake. While that charge remained pending, 

visitation with Blake was not permitted, unless visitation was “therapeutically 

recommended.” As required by statute, DSS was ordered to continue reasonable 

efforts towards reunification. N.C. Gen. Stat. § 7B- 901(c) (2021).

The trial court next conducted a permanency planning hearing on 26 July 

2021. In its 10 August 2021 order, the court found Phoebe was attending therapy to 

address her “diagnosis” of “Unspecified Trauma and Stressor Related Disorder due to 

her reported and observed behaviors.” The trial court found Respondent’s continued 

progress, including she: (1) was attending parenting classes inconsistently; (2) had 

weekly contact with a DSS social worker; (3) had completed her mental health 

assessment; (4) had completed a substance abuse assessment; (5) had tested positive 
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for cannabinoids; (6) had inappropriate housing; (7) was not currently employed; and, 

(8) was attending all scheduled court dates and meetings with DSS.

The court also found Respondent had allowed another woman and her oneyear-old twins, who had an active DSS case, to reside with Respondent in her mobile 

home, which purportedly “smelled of marijuana.” During a visit to Respondent’s 

home, children who were present purportedly reported “the adults in the home 

smoked ‘weed’ via a bong or rolling it up in weird paper” and “snorted white stuff into 

their noses through a metal tube.”

The court changed the plan and established a primary permanent plan of 

adoption with a secondary plan of guardianship. DSS was relieved from its obligation 

to assist the parents to make reasonable efforts towards reunification. Respondent’s 

misdemeanor child abuse case remained pending, and she continued to be denied any 

visitation with Blake and Phoebe.

The next permanency planning hearing was held on 22 November 2021. The 

trial court again made findings regarding Respondent’s progress, which had 

worsened. Respondent had completed four of sixteen parenting classes, was in 

arrears in child support, had not complied with the recommendation that she attend 

virtual group therapy, had not been employed since March 2021, and had a new

criminal charge pending for misdemeanor larceny.

The court found Respondent had remained in contact with the social worker,

had obtained housing, and was regularly attending court hearings and meetings with 
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DSS. The court also found Phoebe’s therapy had been suspended “due to her progress 

in meeting all of her treatment goals.” No changes were made to the primary and 

secondary permanent plans, and reunification efforts remained ceased. Respondent 

was restored with “limited telephone and video visits” with Phoebe, but DSS retained 

“the discretion to cease these visits if they appear detrimental to the wellbeing of the 

child.”

The permanency planning hearing at issue in this appeal was held on 18 April 

2022. The trial court entered an order seven weeks later on 7 June 2022, which found:

Phoebe had resumed therapy based on “regressive behaviors” following the initial

video visits with Respondent; Respondent was not in full compliance with her case 

plan; DSS recommended the primary permanent plan be changed from adoption to 

guardianship. Mr. M. was present in court and provided the court with a financial 

affidavit, which demonstrated Mr. and Mrs. M. had adequate resources to take care 

of Phoebe and understood the legal significance of being appointed as Phoebe’s 

guardians. The court found by clear and convincing evidence Respondent and 

Phoebe’s father had “acted inconsistently with their constitutional rights to parent 

the minor child.”

The trial court changed the primary plan to guardianship with a secondary 

plan of adoption and awarded guardianship of Phoebe to Mr. and Mrs. M. Due to the 

therapist’s report of Phoebe’s negative reaction to her initial video visit with 

Respondent, no visitation was ordered. The court determined DSS had achieved the 
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permanent plan for Phoebe and ordered no further review hearings were necessary. 

Respondent appeals.

II. Jurisdiction 

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27 and 7B1001(4) (2021). 

III. Verification of Guardianship

A. Standard of Review

Appellate “review of a permanency planning review order ‘is limited to whether 

there is competent evidence in the record to support the findings [of fact] and whether 

the findings support the conclusions of law.’” In re H.A.J., 377 N.C. 43, 49, 855 S.E.2d 

464, 469 (2021) (quotation omitted). At a permanency planning hearing, any evidence 

may be considered, “including hearsay evidence as defined in [N.C. Gen. Stat. §] 8C1, Rule 801, or testimony or evidence from any person that is not a party, 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) (2021).

“The trial court’s findings of fact are conclusive on appeal if supported by any 

competent evidence.” In re H.A.J., 377 N.C. at 49, 855 S.E.2d at 469. Unchallenged 

findings of fact are “deemed to be supported by the evidence and are binding on 

appeal.” In re J.C.M.J.C., 268 N.C. App. 47, 51, 834 S.E.2d 670, 673-74 (2019) 

(citation omitted). This Court reviews conclusions of law de novo. Id.

B. Analysis 
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Respondent challenges the trial court’s award of joint guardianship to Mr. and 

Mrs. M. She contends insufficient evidence shows they understood the legal 

significance of being appointed as guardians for her children. Under the Juvenile 

Code, before placing a juvenile in a guardianship, the trial court is mandated to 

determine whether the proposed guardian “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), 7B-906.1(j) (2021).

To satisfy the requirement that the guardians understand the legal 

significance and responsibilities of the appointment, “the record must contain 

competent evidence demonstrating the guardian’s awareness of [his and] her legal 

obligations[.]” In re K.B., 249 N.C. App. 263, 266, 803 S.E.2d 628, 630 (2016) (citation 

omitted). This Court has explained that various types of evidence can satisfy this 

standard:

Evidence sufficient to support a factual finding that a 

potential guardian understands the legal significance of 

guardianship can include, inter alia, testimony from the 

potential guardian of a desire to take guardianship of the 

child, the signing of a guardianship agreement 

acknowledging an understanding of the legal relationship, 

and testimony from a social worker that the potential 

guardian was willing to assume legal guardianship.

In re E.M., 249 N.C. App. 44, 54, 790 S.E.2d 863, 872 (2016).

When two people are awarded joint guardianship, there must be sufficient 

evidence before the trial court that both persons understand the legal significance of 
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the appointment. See In re L.M., 238 N.C. App. 345, 348-49, 767 S.E.2d 430, 433

(2014) (vacating an order for guardianship where “there was no evidence that the 

foster mother accepted responsibility” for the juvenile and affirming the order in part 

because the record tended to show the foster father’s desire to take guardianship of 

the minor child).

In awarding guardianship jointly to Mr. and Mrs. M., the trial court found:

23. [Mr. M.] was present in court. He provided a financial 

affidavit to the Court. Per the affidavit, and evidenced by 

the fact that [Mr. and Mrs. M.] have provided for the minor 

child for more than six consecutive months, they have 

adequate resources to care appropriately for the minor 

child, and are able and willing to provide proper care and 

supervision of the minor child in a safe home. [Mr. and 

Mrs. M.] understand the legal significance of being 

appointed the minor child’s legal custodians.

24. The minor child has been placed with [Mr. and Mrs. M.] 

since October 28, 2020, and it is in the minor child’s best 

interest that she be placed in guardianship with [Mr. and 

Mrs. M.]. [Mr. and Mrs. M.] are committed to caring for 

the minor child and providing guardianship.

Respondent first contends the trial court’s findings and conclusions are 

erroneous because they state Mr. and Mrs. M. “understand the legal significance of 

being appointed the minor child’s legal custodians,” rather than being appointed 

Phoebe’s guardians. This error may be a misnomer and clerical in nature. See In re 

R.S.M, 257 N.C. App. 21, 23, 809 S.E.2d 134, 136 (2017) (“A clerical error is an error 

resulting from a minor mistake or inadvertence, especially in writing or copying 

something on the record, and not from judicial reasoning or determination.” 
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(citations, alterations, and quotation marks omitted)). The remainder of the order 

uses the term “guardianship” repeatedly, including in the trial court’s final decree 

that “guardianship of the minor child, [Phoebe], is hereby granted to [Mr. and Mrs. 

M.]” This error may be addressed and corrected upon remand.

Respondent next argues the trial court’s finding of fact that Mr. and Mrs. M. 

understood the legal significance and accepted the responsibilities of guardianship 

was not supported by any competent evidence, noting that “at no point in any of the 

testimony [at the permanency planning hearing], or contained within either admitted 

court report is there any direct evidence regarding the foster parent’s understanding 

of the guardianship appointment.”

DSS and the guardian ad litem dispute Respondent’s characterization of the 

evidence before the trial court. They point to a “Financial Affidavit of [Mr. and Mrs. 

M.] for Custody/Guardianship” purportedly filled out prior to the permanency 

planning hearing, which allegedly included the following section:

Part 5: RIGHTS AND RESPONSIBILITIES OF A 

CUSTODIAN/GUARDIAN

I understand the legal rights and responsibilities that will 

be bestowed upon me as the legal custodian/guardian for 

the above-named child(ren). I understand that this 

includes, but is not limited to, the responsibility to provide 

the child(ren) with food, shelter, care, and education until 

the child(ren) reach the age of majority. I understand that 

this includes, but is not limited to, the right to make all 

major decisions about the child’s health, education, and 

religious upbringing.
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The affidavit provided in the record to this Court is not signed by either Mr. or 

Mrs. M., and the portion of the affidavit containing a notary’s affirmation is also 

blank. The unsigned “affidavit” itself is not competent or self-proving evidence of Mr. 

and Mrs. M.’s understanding of the legal significance and responsibilities of 

guardianship.

At the permanency planning hearing, Mr. M. offered the following testimony 

regarding the purported affidavit on direct examination from the GAL attorney 

advocate:

Q. Sir, you filled out a financial affidavit earlier – earlier 

this week indicating your finances; is that correct?

A. Yes, sir.

Q. And everything on that affidavit is true to the best of 

your knowledge?

A. Yes, sir.

Q. And you and your significant other have the financial 

means and ability to care financially and emotionally for 

both [Phoebe] and [Blake]?

A. That’s correct.

The affidavit was purportedly entered into evidence during Mr. M.’s subsequent 

questioning by DSS:

Q. Sir, you said you filled out a financial affidavit?

A. Yes, ma’am.

. . . 
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[DSS Attorney]: May I approach again, your Honor?

THE COURT: Sure.

Q. And this is the financial affidavit that you filled out?

A. Yes, ma’am.

Q. And you and [Mrs. M.], you have been caring for both 

children for quite a while now?

A. Yes, since October of 2020.

Q. And – since October of 2020?

A. Yes, ma’am.

Q. Okay. So over a year-and-a-half?

A. Yes, ma’am.

Q. Okay.

[DSS Attorney]: Your Honor, and we’ll admit [sic] this as 

Department’s 2.

THE COURT: Okay. All right. Very well. Allow this being 

introduced into evidence without objection as Petitioner’s 

Exhibit No. 2.

Mr. M.’s testimony does not cure the issues with the unsigned financial 

affidavit before us nor satisfy the joint requirements and acceptance for Mrs. M. In 

re L.M., 238 N.C. App. at 348-89, 767 S.E.2d at 433. Mr. M. only acknowledges “filling 

out” the financial affidavit, and the only information that was “filled out” had to do 

with the couple’s finances. Part 5 of the affidavit, which sets out the legal rights and 

responsibilities of a custodian/guardian, did not include any space to acknowledge it 

was read and understood, and there are no markings near it.
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Mr. M.’s testimony did not discuss Part 5 nor otherwise address the legal 

obligations and responsibilities associated with guardianship. Mr. M.’s testimony did 

not provide any evidence that Mrs. M. was involved with filling out the affidavit or 

that he had discussed its contents with her, or that she understood and was in 

agreement with her joint responsibilities. Id.

Neither the unsigned financial affidavit nor Mr. M.’s testimony provides the 

evidence necessary to support the trial court’s findings and conclusions that Mr. and 

Mrs. M. understood the legal significance and responsibilities of being appointed as 

Phoebe’s guardians. No other witnesses offered testimony on the issue, and no other 

information is included in either the DSS or GAL court report to support the trial 

court’s findings.

The trial court erred by finding and concluding the foster parents jointly 

understood the legal significance and responsibilities of guardianship. See In re E.M., 

249 N.C. App. 44, 55, 790 S.E.2d 863, 872 (2016) (vacating and remanding an award 

of legal custody when one member of the custodial couple did not testify and there 

was no evidence he understood the legal significance of taking custody, the testimony 

from the other member of the couple did not address her understanding of the legal 

relationship, and the DSS court report did not reflect that “either of the custodians 

understood the legal significance of guardianship”); In re J.D.M.-J., 260 N.C. App. 56, 

59-61, 817 S.E.2d 755, 758-59 (2018) (vacating and remanding an award of legal 

custody when neither of the prospective custodians testified, no testimony was offered 
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by DSS that the custodians were aware of the legal significance of assuming custody 

of the juveniles, and the custodians did not “sign a guardianship agreement 

acknowledging their understanding of the legal relationship”). We vacate the trial 

court’s award of guardianship to Mr. and Mrs. M. and remand for further proceedings.

IV. Visitation

A. Standard of Review 

“This Court reviews an order disallowing visitation for abuse of discretion.” In 

re J.L., 264 N.C. App. 408, 421, 826 S.E.2d 258, 268 (2019) (citation omitted). “An 

abuse of discretion occurs when the trial court’s ruling is so arbitrary that it could 

not have been the result of a reasoned decision.” In re N.G., 186 N.C. App. 1, 10-11, 

650 S.E.2d 45, 51 (2007) (citation and internal quotation marks omitted). A trial 

court has no discretion to fail to recognize, follow, or to correctly apply the law, or to 

commit an error of law. See In re R.P., 276 N.C. App. 195, 198, 856 S.E.2d 868, 870

(2021) (“An abuse of discretion occurs when the trial court acts under a 

misapprehension of the law or its ruling is ‘so arbitrary that it could not have been 

the result of a reasoned decision.’” (citation omitted)).

B. Analysis 

Respondent argues the trial court abused its discretion and erred when it 

denied her all visitation with Phoebe without adequately considering the totality of 

the circumstances of her parental rights and Phoebe’s best interests. 

N.C. Gen. Stat. § 7B-906.1(d) governs review and permanency planning 
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hearings, provides a list of criteria the trial court “shall consider,” and states the trial 

court must “make written findings” regarding visitation. One of the items 

highlighted in the list is: “(2) Reports on visitation that has occurred and whether 

there is a need to create, modify, or enforce an appropriate visitation plan in 

accordance with [N.C. Gen. Stat. §] 7B-905.1.” N.C. Gen. Stat. § 7B- 906.1(d)(2). 

Under N.C. Gen. Stat. § 7B-905.1 (2021), 

[a]n order that removes custody of a juvenile from a parent, 

guardian, or custodian or that continues the juvenile’s 

placement outside the home shall provide for visitation

that is in the best interests of the juvenile consistent with 

the juvenile’s health and safety, including no visitation.

The court may specify in the order conditions under which 

visitation may be suspended.

N.C. Gen. Stat. § 7B-905.1(a) (emphasis supplied).

Another subsection of N.C. Gen. Stat. § 7B- 906.1 mandates the criteria the 

trial court “shall additionally consider” and “make written findings regarding” after 

“any permanency planning hearing where the juvenile is not placed with a parent.” 

N.C. Gen. Stat. § 7B-906.1(e). The list includes the following criteria: 

(1) Whether it is possible for the juvenile to be placed with 

a parent within the next six months and, if not, why such 

placement is not in the juvenile’s best interests.

(2) Where the juvenile’s placement with a parent 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 that should remain with the parents.

(3) Where the juvenile’s placement with a parent is 
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unlikely within six months, whether adoption should be 

pursued and, if so, any barriers to the juvenile’s 

adoption, including when and if termination of parental 

rights should be considered.

(4) Where the juvenile’s placement with a parent is 

unlikely within six months, whether the juvenile should 

remain in the current placement, or be placed in another 

permanent living arrangement and why.

(5) Whether the county department of social services has 

since the initial permanency plan hearing made 

reasonable efforts to implement the permanent plan for 

the juvenile.

(6) Any other criteria the court deems necessary.

N.C. Gen. Stat. § 7B-906.1(e)(1)-(6) (emphasis supplied).

This Court has vacated and remanded permanency planning orders for failure 

to make written findings and conclusions of law pursuant to the criteria listed in N.C. 

Gen. Stat. § 7B-906.1. See In re L.G., 274 N.C. App. 292, 851 S.E.2d 681 (2020). In 

In re L.G., the trial court “ma[de] no mention of the possibility of [the child’s] 

placement with either parent within the next six months” in the permanency 

planning order. Id. at 299, 851 S.E.2d at 687. Although the trial court “included 

findings of fact in the permanency planning order that could support a potential 

conclusion it was not possible for [the child] to be placed with [either parent] within 

six months, it failed to make that conclusion of law in the permanency planning 

order.” Id. at 302, 851 S.E.2d at 689 (emphasis supplied). This Court remanded the 

matter to the trial court for “consideration of this issue and if the trial court so 
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concludes, to include specific language regarding the possibility of [the child] being 

placed with a parent within six months in the permanency planning order.” Id.

The record only reflects Phoebe’s DSS-paid therapist’s opinion of her behavior 

following a video call visitation with Respondent after a long state-enforced absence

of visitation with Respondent. The sole finding of fact reflecting visitation is: 

Therapist Bailey wrote a letter following the beginning of 

video call visitation between [Phoebe] and her mother, 

[Respondent]. When visits were started, [Phoebe] would 

become nervous and hesitant to be in the same room as the 

video call. She was upset by the calls and continued to 

show inappropriate behavior following each of the calls 

that were made. Due to this, the therapist’s letter 

documented concerns of regressive behaviors following the 

visit that the therapist felt were harmful for [Phoebe] and 

that the video visitation should cease. Due to these 

behaviors, the therapist felt that it was necessary for 

[Phoebe] to resume regular sessions.

Here, the facts are similar to those in In re L.G., because the trial court failed 

to include language consistent with the mandated statutory criteria in N.C. Gen. 

Stat. § 7B-906.1(d)-(e). Id. “[W]hile the trial court included findings of fact in the 

permanency planning order [which may] support a potential conclusion it was not 

possible for [Phoebe] to be placed with [Respondent] within six months, it failed to 

make that conclusion of law in the permanency planning order.” Id. (emphasis 

supplied).

This matter is remanded to the trial court for further consideration and to 

make written and supported findings of fact as mandated and consistent with 
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Respondent’s parental rights and the criteria outlined in N.C. Gen. Stat. § 7B906.1(d)-(e), including “[r]eports on visitation that has occurred and whether there is 

a need to create, modify, or enforce an appropriate visitation plan in accordance with 

[N.C. Gen. Stat. §] 7B-905.1.” N.C. Gen. Stat. § 7B-906.1(d)(2); In re L.G., 274 N.C. 

App. at 302, 851 S.E.2d at 689.

V. Conclusion

The trial court’s conclusion that Mr. and Mrs. M. understood the legal 

significance of guardianship is not supported by findings based upon competent 

evidence in the record. The trial court’s award of guardianship to Mr. and Mrs. M. is

vacated and remanded for further proceedings.

The trial court’s denial of Respondent’s visitation with her children is vacated 

and remanded to the trial court for further consideration of the mandates of the

statutes and this opinion. See N.C. Gen. Stat. §§ 7B-905.1 and 7B-906.1(d)-(e). It is 

so ordered.

VACATED AND REMANDED

Judge FLOOD and RIGGS concur.