In re ADW and BRW by sZU1tC

VIEWS: 7 PAGES: 28

									No. COA06-213                             JUDICIAL DISTRICT 19B

                 NORTH CAROLINA COURT OF APPEALS

              * * * * * * * * * * * * * * * * * * *

                               )
IN RE:                         )   From Randolph
     A.D.W.                    )   04 J 206
     B.R.W.                    )   93 J 123
                               )


              * * * * * * * * * * * * * * * * * * *

     BRIEF FOR APPELLANT-RESPONDENT-MOTHER NICOLE KRIEGER
                     ii
                     INDEX

TABLE OF CASES AND AUTHORITIES.............iv

QUESTIONS PRESENTED FOR REVIEW..............1

STATEMENT OF THE CASE.......................3

JURISDICTION................................5

STATEMENT OF THE FACTS......................5

ARGUMENT:

I.    THE TRIAL COURT VIOLATED RESPONDENT-
      MOTHER’S SUBSTANTIAL RIGHTS AND
      COMMITTED REVERSIBLE ERROR WHEN IT
      FAILED TO FIND FACTS THAT RESPONDENT-
      MOTHER HAD COMMITTED ACTS OR OMMISSIONS
      INCONSISTENT WITH HER RIGHT OF
      VISITATION WITH THE CHILDREN AND
      SUBSEQUENTLY FAILED TO ORDER THAT
      RESPONDENT-MOTHER BE ALLOWED TO VISIT
      WITH HER CHILDREN.....................10

II.   THE TRIAL COURT VIOLATED RESPONDENT-
      MOTHER’S SUBSTANTIAL RIGHTS AND
      COMMITTED REVERSIBLE ERROR WHEN IT
      FAILED TO MAKE SUFFICIENT FINDINGS OF
      FACT UNDER N.C. GEN. STAT. § 7B-907
      REGARDING THE CHILDREN’S PERMANENT
      PLAN..................................14

III. THE TRIAL COURT ABUSED ITS DISCRETION,
     VIOLATED RESPONDENT-MOTHER’S SUBSTANTIAL
     RIGHTS, AND COMMITTED REVERSIBLE ERROR
     WHEN IT ORDERED THAT THE MATTER BE
     CLOSED AND FUTURE HEARINGS WAIVED.....14

IV.   THE TRIAL COURT’S FINDING OF FACT NUMBER
      12 WAS NOT SUPPORTED BY THE COMPETENT
      EVIDENCE OR THE OTHER FINDINGS OF
      FACT..................................17

CONCLUSION.................................19

CERTIFICATE OF SERVICE.....................21

APPENDIX A:
     In re Findley, No. COA01-239, 2002 N.C.
     App. LEXIS 1799 (April 2, 2002).......22
                    iii


APPENDIX B:
     Referenced pages of transcript........26
                    iv
       TABLE OF CASES AND AUTHORITIES

                    CASES

In re E.C., ___ N.C. App. ___,

     621 S.E.2d 647 (2005).................14

In re Findley, No. COA01-239, 2002 N.C. App.

     LEXIS 1799 (April 2, 2002)............12

In re Helms, 127 N.C. App. 505,

     491 S.E.2d 672 (1997).................11

State v. House, 285 N.C. 195,

     244 S.E.2d 654 (1978).................19

In re Isenhour, 101 N.C. App. 550,

     400 S.E.2d 71 (1991)..................11

In re Pope, 144 N.C. App. 32,

     547 S.E.2d 153 (2001).................11

In re Pope, 354 N.C. 359,

     554 S.E.2d 644 (2001).................11

In re Shue, 311 N.C. 586,

     319 S.E.2d 567 (1984).................11

In re Custody of Stancil, 10 N.C. App. 545,

     179 S.E.2d 844 (1971).................12

Starco, Inc. v. AMG Bonding and Ins.

     Services, Inc., 124 N.C. App. 332,

     477 S.E.2d 211 (1996).................11



                  STATUTES

N.C. Gen. Stat. § 7A-27 (2005)..............5
                     v
N.C. Gen. Stat. § 7B-600(c) (2005).........18

N.C. Gen. Stat. § 7B-906(b) (2005).........15

N.C. Gen. Stat. § 7B-907 (2005)............11

N.C. Gen. Stat. § 7B-907(b) (2005).........15

N.C. Gen. Stat. § 7B-1001 (2005)............5

N.C. Gen. Stat. § 7B-1002 (2005)............5
                       0
No. COA06-213                              JUDICIAL DISTRICT 19B

                  NORTH CAROLINA COURT OF APPEALS

              * * * * * * * * * * * * * * * * * * *

                                )
IN RE:                          )   From Randolph
     A.D.W.                     )   04 J 206
     B.R.W.                     )   93 J 123
                                )


              * * * * * * * * * * * * * * * * * * *

      BRIEF FOR APPELLANT-RESPONDENT-MOTHER NICOLE KRIEGER

                  QUESTIONS PRESENTED FOR REVIEW

I.    Did the trial court violate Respondent-Mother’s

      substantial rights and commit reversible error when it

      failed to find facts that Respondent-Mother had committed

      acts or ommissions inconsistent with her right of

      visitation with the children and subsequently failed to

      order that Respondent-Mother be allowed to visit with her

      children?

II.   Did the trial court violate Respondent-Mother’s

      substantial rights and commit reversible error when it

      failed to make sufficient findings of fact under N.C.

      Gen. Stat. § 7B-907 regarding the children’s permanent

      plan?

III. Did the trial court abuse its discretion, violate

      Respondent-Mother’s substantial rights, and commit

      reversible error when it ordered that the matter be

      closed and future hearings waived?
                      1
IV.   Was the trial court’s finding of fact number 12 supported

      by the competent evidence or the other findings of fact?
                        2
                     STATEMENT OF THE CASE

    Randolph County Department of Social Services

(hereinafter “DSS”) filed juvenile petitions on 8 October 2004

alleging neglect and dependency of the juveniles B.R.W. and

A.D.W. (R pp. 15-21).     The trial court continued these

children in non-secure custody at non-secure custody hearings

on 14 October 2004, 28 October 2004, and 18 November 2004 (R

pp. 26-34, 43-46).

    The trial court convened for the adjudication hearing on

2 December 2004 but continued the matter without hearing (R

pp. 47-50) and did the same thing on 13 January 2005 (R pp.

51-52).   The trial court adjudicated the matter on 3 March

2005 and concluded that both children were dependent juveniles

(R p. 66).

    At the subsequent disposition hearing the trial court

placed the children in the legal custody of DSS with physical

placement with the children’s paternal grandmother (R p. 66).

 The trial court reviewed the matter again on 26 May 2005 and

ordered that the children remain in the legal custody of DSS

with placement authority in that agency continuing physical

placement with the paternal grandmother (R pp. 66-71).

    The trial court conducted the permanency planning hearing

that is the subject of this appeal on 15 September 2005 (R pp.

80-84).   It ordered that the paternal grandmother have

guardianship of the children, that this be the permanent plan

for the children, and that future hearings be waived (R p.
                       3
84).    The trial court reduced its order to writing on 4

October 2005 (R p. 84).      Respondent-Mother filed motions for

review on 27 September 2005 for both children requesting that

the trial court re-examine the issue of her visitation with

the children (R pp. 85-86).

       Respondent-Mother filed notice of appeal on 5 October

2005 (R pp. 87-88).    The trial judge signed the Appellate

Entries form on 11 October 2005 finding her to be indigent and

qualified for court-appointed appellate counsel (R pp. 89-90).

 On 24 October 2005 the Appellate Defender’s Office appointed

counsel to represent Respondent-Mother for purposes of her

appeal (R p. 92).

       The court reporter served the transcript of trial on the

parties on or about 7 November 2005 (T COS).     Appellant served

a Proposed Record on Appeal on all parties on 5 December 2005

(R p. 98).    Ms. Alison Y. Ashe-Card made an appearance on

behalf of Appellee-Guardian ad Litem for the children

(hereinafter “Appellee-GAL”) on 3 January 2006 (R pp. 99-100).

 Ms. Ashe-Card requested additional time to review the

proposed record on appeal and received that additional time

from the trial court (R pp. 101-104).     Mr. David Perez made an

appearance on behalf of Appellee-DSS on 1 February 2006 (R p.

105).

       Having received no objections or proposed amendments to

the proposed record within the prescribed time frame,

Appellant filed the Record on Appeal with the Court of Appeals
                      4
on 9 February 2006 (R p. 109).    The Court of Appeals docketed

the record on 1 March 2006 and mailed the printed Record to

the parties on 8 March 2006.



                            JURISDICTION

    Respondent-Mother asserts she is authorized to appeal

under N.C. Gen. Stat. §§ 7A-27, 7B-1001, and 7B-1002 (2005).

Respondent-Mother gave written notice of appeal on 5 October

2005 (R p. 87).



                     STATEMENT OF THE FACTS

    B.R.W. was born in March 1991 to his parents, Nicole

Krieger and Danny Williams (R p. 2).       A.D.W., B.R.W.’s younger

sister, was born in March 1993 to the same parents (R p. 15).

 On 20 July 1993, DSS filed a juvenile petition alleging

neglect of B.R.W. in that B.R.W. was bitten by a dog of

unknown ownership or health and the parents were refusing to

get B.R.W. rabies vaccinations per doctor’s recommendation (R

pp. 2-3).   After the parents sought rabies vaccinations for

B.R.W. the trial court dismissed the petition on 24 August

1993 and returned legal custody to the parents (R pp. 12-14).

    On 20 November 1995, Guilford County Department of Social

Services filed a neglect petition and removed the children

from the home (R p. 23).    Eventually the children were

returned to Ms. Krieger’s care after she complied with

recommendations (R pp. 23, 62).    Sometime during this period
                       5
the parents separated (R p. 62).    Both parents had issues of

substance abuse and domestic violence (R p. 62).    Sometime in

1997 Ms. Krieger allowed Mr. Williams back in her home with

the children and Guilford County Department of Social Services

again substantiated neglect because Mr. Williams had not

completed substance abuse or domestic violence treatment (R

pp. 56, 62).

       Over the ensuing years Ms. Krieger became increasingly

transient with the children in her care (R p. 24).    She

neglected to send the children to school and attempted to

home-school them instead (R p. 24).    During the summer of 2004

the children stayed in six to ten different locations with

various people, some of whom the children did not know (R p.

24).    Ms. Krieger placed the children with their paternal

grandmother, Elva Overcash, on 2 October 2004 (R p. 24).

       On 5 October 2004, DSS received a report that Ms. Krieger

was abusing illegal substances, that she was transient, and

that the children had not attended school in some time (R p.

24).    DSS formally removed the children from Ms. Krieger’s

care by filing juvenile petitions on 8 October 2004 alleging

neglect and dependency of both children and sanctioning their

placement with Ms. Overcash (R pp. 15-21).    DSS did not place

the children with their father, Danny Williams, because of

1996 Guilford County court orders precluding him from having

custody (R pp. 24, 48).

       After a couple of continuances (R pp. 47-50, 51-52) the
                       6
trial court finally adjudicated the children dependent on 3

March 2005 and placed the children in the legal custody of DSS

with physical placement with Ms. Overcash (R p. 66).    The

trial court set the next review date for May 2005 (R p. 66).

       After she lost her children, Ms. Krieger began living

alone in a two-bedroom trailer in a trailer park owned by her

mother (T p. 49; R p. 55).    She got a job at the Waffle House

in January 2005 (R p. 55).    She changed jobs to Carolina’s

Diner in High Point in early 2005 (R p. 69).    She maintained

this job for three to four months until she quit because she

was being sexually harassed by her boss (T pp. 19, 36).     She

was unemployed but looking for work at the time of the

permanency planning hearing on 15 September 2005 (T pp. 19,

36).

       Ms. Krieger completed a substance abuse assessment and

was diagnosed with drug dependency on 4 January 2005 (R pp.

54, 63).    She began attending therapy sessions as part of her

treatment (R p. 54).    DSS gave her seven random drug screens

between December and February 2005 of which she completed five

testing positive for cocaine on two of those tests (R pp. 54-

55).    The two tests she missed were because she was

incarcerated on one occasion and out of town on the other

occasion (R p. 55).    However, her next five random drug

screens conducted between 17 February 2005 and 11 April 2005

were all negative (R p. 68).

       Ms. Krieger attended substance abuse therapy with Cynthia
                        7
Wessinger until mid-March 2005 (T pp. 11-12; R p. 63).      At

that point Ms. Wessinger went into private practice and was

not able to be certified for substance abuse treatment of

state-sponsored patients (R p. 63).    Thereafter Ms. Krieger

was no longer able to see Ms. Wessinger (T pp. 11-12; R p.

63).    Due to lack of communication with the social worker Ms.

Krieger did not resume substance abuse therapy after Ms.

Wessinger left (T p. 13).     However, she attended Narcotics

Anonymous (NA) and Alcoholics Anonymous (AA) meetings on

occasion (T p. 41).

       On 18 May 2005, DSS requested a random drug screen from

Ms. Krieger and gave her four hours to submit (R p. 68).        Ms.

Krieger did not comply because she had to go to work (R p.

68).    DSS asked Ms. Krieger to submit to hair and urine drug

tests after the 26 May 2005 court date (R p. 77).     She

submitted to the urine test which was negative but she refused

to submit to the requested hair sample (R p. 77).

       The trial court reviewed the case on 26 May 2005 and

ordered that the children remain in the legal custody of DSS

with placement authority in that agency and continued physical

placement with Ms. Overcash (R pp. 66-71).     The court noted

that the children did not want to have unsupervised visits

with their mother so it ordered that the visits continue to be

supervised (R p. 69).

       Over the next month thereafter Ms. Krieger missed two

weekly visits with the children because she was out of town (T
                      8
p. 24; R p. 76).   She left a third visit early on 27 June 2005

because she was so upset over A.D.W. crying at the visit (T p.

22; R p. 76).   This was her last visit with the children

although she called the social worker two months later to try

to re-establish visitation (T pp. 23-24, 57-58).     The social

worker promised to get back to her but had not yet done so by

the time of the permanency planning hearing on 15 September

2005 (T pp. 17-18, 23-24).

    At Ms. Overcash’s house the children were sleeping on

couches in the living room (T pp. 76-77).   The house had but

one bathroom that six people shared (T pp. 76-77).     Ms.

Overcash allowed the children’s father, Danny Williams, to

visit with the children at her house until DSS found out about

it and made her stop (T p. 81).

    The trial court conducted the permanency planning hearing

that is the subject of this appeal on 15 September 2005 (R pp.

80-84).   DSS did not call any witnesses; it relied solely on

the report submitted to the trial court by the social worker

who was not present for the hearing (T pp. 4-7; R pp. 75-79).

 Ms. Krieger called herself (T p. 8), her mother, Judy Hill (T

p. 58), and her son, B.R.W. (T p. 73).

    Ms. Hill testified that Ms. Krieger continued to live in

the trailer park that Ms. Hill owned (T p. 61).    Ms. Hill also

testified that she lived on the same road as Elva Overcash,

only a half mile away from her (T pp. 62-63).     Ms. Hill told

the court that she had seen the father, Mr. Danny Williams,
                       9
drive by her house on his way towards Ms. Overcash’s house

four to five times a week over the previous four months (T pp.

62-66).    No other witness or evidence put Ms. Hill’s testimony

in controversy on this issue.

       B.R.W. testified at the 15 September 2005 permanency

planning hearing that he liked visiting with his mother but

that he wanted to continue living with Ms. Overcash (T pp. 82-

83).    He gave the reason as being that if he went back to his

mother’s care, he could not skateboard like he did at Ms.

Overcash’s house (T pp. 84-85).

       The trial court ordered that the paternal grandmother

have guardianship of the children, that this be the permanent

plan for the children, and that future hearings be waived (R

p. 84).    The trial court refused to comment or even order

anything about Ms. Krieger having visitation with her children

(T pp. 101-02; R p. 84).     Ms. Krieger filed motions for review

on 27 September 2005 to specifically address the visitation

issue (R pp. 85-86).    However, the trial court did not act on

those motions before it reduced its permanency planning order

to writing on 4 October 2005 (R p. 84).     Ms. Krieger appealed

that order on 5 October 2005 (R pp. 87-88).

       Further facts will be set forth in the arguments below.



                              ARGUMENT

I.   THE TRIAL COURT VIOLATED RESPONDENT-MOTHER’S SUBSTANTIAL
RIGHTS AND COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO FIND
FACTS THAT RESPONDENT-MOTHER HAD COMMITTED ACTS OR OMMISSIONS
                     10

INCONSISTENT WITH HER RIGHT OF VISITATION WITH THE CHILDREN
AND SUBSEQUENTLY FAILED TO ORDER THAT RESPONDENT-MOTHER BE
ALLOWED TO VISIT WITH HER CHILDREN.

     ASSIGNMENT OF ERROR NO. 2, R p. 94

                       Standard of Review

     This is an appeal of a permanency planning order.    As

such, the trial court’s order must comply with the statutory

provisions of N.C. Gen. Stat. § 7B-907 (2005) and all other

statutory sections referenced by N.C. Gen. Stat. § 7B-907.

All dispositional orders of the trial court after abuse,

neglect and dependency hearings must contain findings of fact

based upon the credible evidence presented at the hearing.      In

re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 676 (1997).

 If the trial court's findings of fact are supported by

competent evidence, they are conclusive on appeal.   In re

Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991).

This Court can review a trial court’s conclusions of law de

novo.   In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158

(2001), citing, Starco, Inc. v. AMG Bonding and Ins. Services,

Inc., 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996),

aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001).

     In addition, all findings, conclusions, and orders of the

trial court must ultimately be in the best interests of the

juvenile.   In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574

(1984).   “Whenever the trial court is determining the best

interest of a child, any evidence which is competent and

relevant to a showing of the best interest of that child must
                    11
be heard and considered by the trial court, subject to the

discretionary powers of the trial court to exclude cumulative

testimony.”   Id.

                     ____________________

    In an action involving custody of a child, the awarding

of visitation rights is a judicial function.     In re Custody of

Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971).

The exercise of this particular judicial function should not

be delegated by the court to the custodian of the child.       Id.

 When the parent’s right to visitation arises, the court

should consider whether the parent has by conduct forfeited

the right or whether the parent’s exercise of the right would

be contrary to the child’s best interests.     Id.   If the court

finds that the parent has by conduct forfeited the right or

that the parent’s exercise of the right would be contrary to

the child’s best interests, the court may, in its discretion,

deny a parent the right of visitation.   Id.    However, the

court may not delegate this authority to the custodian.        Id.

This Court has upheld the Stancil visitation ruling in an

unpublished abuse, neglect, and dependency case.     In re

Findley, No. COA01-239, 2002 N.C. App. LEXIS 1799 (April 2,

2002) (see Appendix A of this brief).

    Here, the trial judge issued no order from the bench

regarding visitation at the end of the hearing (T pp. 95-101).

 When Respondent-Mother asked him about visitation at the end

of the hearing the trial judge told her to contact DSS to see
                      12
if visitation could be arranged (T p. 101-02).

       Before the trial court had reduced its order to writing

Respondent-Mother filed a motion to review the matter on the

issue of visitation (R pp. 85-86).    The record is void of any

evidence that the trial court ever acted on Respondent-

Mother’s motion for a hearing to review the visitation issue,

before or after issuing its written order for the 15 September

2005 permanency planning hearing.

       The only findings of fact in the written order that

reference visitation are findings #33 and #34 which

Respondent-Mother does not dispute (R p. 83).    However, these

findings merely describe what had recently transpired with

regards to visitation and do not indicate that Respondent-

Mother had forfeited by conduct her visitation rights (R p.

83).    The written order lacks a finding or a conclusion of law

that Respondent-Mother had by conduct forfeited her right to

visitation or that it would be contrary to the children’s best

interests for them to have visitation with their mother (R p.

84).    The written order contains no provision for visitation

in its decretal section (R p. 84).

       Adding to the perplexity of the situation is the fact

that the trial court ordered that the children be in the

guardianship of their paternal grandmother, Ms. Elva Overcash

(R p. 84).    The written order does not continue the children’s

legal custody in DSS (R p. 84).    This leads one to wonder if

DSS had any say in Respondent-Mother’s visitation when the
                      13
trial judge told Respondent-Mother to see DSS about arranging

visitation (T p. 102).

    These acts and ommissions by the trial court are

tantamount to the trial court having delegated its authority

to allow Respondent-Mother visitation with her children to a

party or entity other than the trial court.    It is unclear to

whom or to what party the trial court delegated that

authority.    The facts in this case are not distinguishable

from the facts in those cases giving rise to the ruling on

visitation between a non-custodial parent and her child.       This

violates well-established North Carolina case law on the

issue.   In re E.C., ___ N.C. App. ___, ___, 621 S.E.2d 647,

651 (2005).

    For the reasons stated above, Respondent-Mother

respectfully urges this Court to rule that the trial court’s

order is in contravention to North Carolina law because it

lacks provisions that allow for her visitation with her

children.    Respondent-Mother urges this Court to remand this

case to the trial court so that it may enter a visitation

order that comports with North Carolina law.



II. THE TRIAL COURT VIOLATED RESPONDENT-MOTHER’S SUBSTANTIAL
RIGHTS AND COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO MAKE
SUFFICIENT FINDINGS OF FACT UNDER N.C. GEN. STAT. § 7B-907
REGARDING THE CHILDREN’S PERMANENT PLAN.

    ASSIGNMENTS OF ERROR NOS. 1, 3, R p. 94

III. THE TRIAL COURT ABUSED ITS DISCRETION, VIOLATED
RESPONDENT-MOTHER’S SUBSTANTIAL RIGHTS, AND COMMITTED
                     14

REVERSIBLE ERROR WHEN IT ORDERED THAT THE MATTER BE CLOSED AND
FUTURE HEARINGS WAIVED.

    ASSIGNMENT OF ERROR NO. 12, R p. 96

           Appellant will argue the above-referenced
              Assignments of Error simultaneously.

    Respondent-Mother references and incorporates the prior

argument as if fully set out herein.

                       Standard of Review

    Respondent-Mother references and incorporates the prior

Standard of Review as if fully set out herein.   In addition,

the controlling statutory provision mandates that “If at any

time custody is restored to a parent or findings are made in

accordance with G.S. 7B-906(b), the court shall be relieved of

the duty to conduct periodic judicial reviews of the

placement.”   N.C. Gen. Stat. § 7B-907(b) (2005).   There exists

no other language in N.C. Gen. Stat. § 7B-907 that discusses

the waiving of future hearings.   N.C. Gen. Stat. § 7B-907

(2005).   N.C. Gen. Stat. § 7B-906(b) mandates the following:

    “Notwithstanding other provisions of this Article,
    the court may waive the holding of review
    hearings..., if the court finds by clear, cogent,
    and convincing evidence that: (1) The juvenile has
    resided with a relative or has been in the custody
    of another suitable person for a period of at least
    one year; (2) The placement is stable and
    continuation of the placement is in the juvenile’s
    best interests;....”

N.C. Gen. Stat. § 7B-906(b) (2005).

                      ____________________

    First and foremost it should be noted that the written

order in this case is void of any language indicating that the
                      15
trial court’s findings of fact were by clear, cogent, and

convincing evidence (R pp. 80-84).    While there exists no case

law indicating that Chapter 7B permanency planning hearings

must be conducted under the clear, cogent, and convincing

standard of evidence (see Standard of Review in Argument I),

the statutory language of N.C. Gen. Stat. § 7B-906(b) requires

findings by clear, cogent, and convincing evidence in order to

waive future reviews of the case.    N.C. Gen. Stat. § 7B-906(b)

(2005).

       The trial court conducted this permanency planning

hearing on 15 September 2005 (R p. 80).    The trial court made

a written finding that the children had been in their current

placement with Elva Overcash since 8 October 2004 (R p. 81,

FOF #9).    The trial court ordered that the children’s

permanent plan be guardianship with Elva Overcash (R p. 84).

The trial court ordered that future hearings be waived (R p.

84).

       When the trial court conducted this hearing on 15

September 2005 it simply had no evidence or authority before

it that allowed it to waive future hearings in accordance with

Article 9 of Chapter 7B of the Juvenile Code.    This is because

the children had not been in their placement for a period of

one year.    Further, the trial court cannot predict the future.

 While the trial court could make a finding that the

children’s placement had been continuous and stable for the

last 342 days, it could not make a finding that the children’s
                    16
placement would be continuous and stable for the 23 days

following the hearing.    The trial court simply cannot know

what will happen in those 23 days.    Three hundred and forty-

two (342) days is not equivalent to “one year.”    Thus, the

trial court was not authorized to waive future hearings on 15

September 2005.

    For the reasons stated above, Respondent-Mother

respectfully urges this Court to vacate the trial court’s

order and to remand this case to the trial court so that it

may conduct future review hearings until it can properly find

that those hearings may be waived in accordance with Article 9

of Chapter 7B of the Juvenile Code.



IV. THE TRIAL COURT’S FINDING OF FACT NUMBER 12 WAS NOT
SUPPORTED BY THE COMPETENT EVIDENCE OR THE OTHER FINDINGS OF
FACT.

    ASSIGNMENT OF ERROR NO. 8, R pp. 95-96

    Respondent-Mother references and incorporates the prior

arguments as if fully set out herein.

                         Standard of Review

    Respondent-Mother references and incorporates the prior

Standards of Review as if fully set out herein.    In addition,

“If the court appoints an individual guardian of the person

pursuant to this section, 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.”
                        17
  N.C. Gen. Stat. § 7B-600(c) (2005).

                          ____________________

         Here the trial court made the following finding of fact:

  “The Court has verified that Ms. Overcash understands the

  legal significance of the appointment of guardianship and has

  adequate resources to care appropriately for the minor child

  (sic)1.”   (R p. 81, FOF #12)   There is simply no evidence

  anywhere in the record to support this finding.    Evidence for

  this finding does not exist in the social worker’s report to

  the court (R pp. 75-79), the other findings of fact in the

  trial court’s written order (R pp. 80-84), or the transcript

  (T pp. 1-106).    It is not even clear that Ms. Overcash

  attended the 15 September 2005 permanency planning hearing

  (although the children were present (R p. 80)).

         The statutory language contains the word “shall.”    N.C.

  Gen. Stat. § 7B-600(c) (2005).    As such, the provision is

  mandatory.    The trial court must verify that the guardian

  understands the legal significance of the appointment and that

  she has adequate means to meet the children’s needs.       The

  trial court cannot simply assume these facts are true.

  Respondent-Mother contends that this language is not mere form

  over substance.    She argues that the language is intended to

  protect the best interests of the child and as such is of

  paramount importance.    In determining the mandatory nature of

     1
       The trial court placed two children in Ms. Overcash’s
guardianship (R p. 84).
                      18
a statute, the Court may take into consideration the

importance of the provision involved.      State v. House, 285

N.C. 195, 203, 244 S.E.2d 654, 661 (1978).

    Thus, the trial court did not properly carry out its

duties in ascertaining whether the appointed guardian

understood the legal implications of guardianship per N.C.

Gen. Stat. § 7B-600(c).      Likewise, there exists a question

about whether Ms. Overcash would be able to financially

provide for the children.     There was very little evidence, if

any, concerning her income.     The children slept on couches in

the living room of her home and the house had but one bathroom

that six people shared (T pp. 76-77).      Were any of those other

people contributing to the income of the household?     If so and

if they moved out, would that create a financial burden for

the household?   The trial court did not ascertain the answers

to these questions.   Thus, the order lacks the necessary

findings to show that the appointed guardian could provide

adequate resources to properly care for the children.



                              CONCLUSION

    Based on the arguments and authorities cited herein

Respondent-Mother urges the Court to rule that the trial court

committed reversible error and violated her substantial rights

for the reasons stated above.     Respondent-Mother requests that

this case be reversed and remanded for the reasons stated

herein.
                   19
    Respectfully submitted this _____ day of ______________,

2006.



              ________________________________
              Richard Croutharmel
              Attorney at Law
              303-200 Blake St, Suite 211
              Raleigh, NC 27601
              Phone: (919) 755-1113
              Fax: (919) 755-1162
              Email: rcroutharmel@earthlink.net
              Attorney for Appellant-Respondent-Father
                    20

                    CERTIFICATE OF SERVICE

     The undersigned attorney hereby certifies that the
original of the foregoing BRIEF FOR APPELLANT-RESPONDENT-
MOTHER NICOLE KRIEGER was duly served with the Office of the
Clerk of the North Carolina Court of Appeals by hand delivery
to the following address:

         Mr. John Connell, Clerk
         North Carolina Court of Appeals
         1 West Morgan Street
         Raleigh, NC 27601

     The undersigned attorney hereby certifies that copies of
the foregoing BRIEF FOR APPELLANT-RESPONDENT-MOTHER NICOLE
KRIEGER were duly served upon the Appellees this day by
placing copies thereof in a depository under the exclusive
care and custody of the United States Postal Service in first
class, postage-prepaid envelopes and properly addressed as
follows:

David Perez
32-C Trade Street
Thomasville, NC 27360

Alison Y. Ashe-Card
Womble, Carlyle, Sandridge & Rice, PLLC
One West Fourth Street
Winston-Salem, NC 27101

Danny Ray Williams
7085 Riverchase Drive
Thomasville, NC 27360

    THIS the _____ day of _______________, 2006.


               ________________________________
               Richard Croutharmel
               Attorney at Law
               303-200 Blake St, Suite 211
               Raleigh, NC 27601
               Phone: (919) 755-1113
               Fax: (919) 755-1162
               Email: rcroutharmel@earthlink.net
               Attorney for Appellant-Respondent-Father
         21




                APPENDIX A:

      In re Findley, No. COA01-239,
2002 N.C. App. LEXIS 1799 (April 2, 2002)
    26




           APPENDIX B:

Referenced Pages of Transcript

								
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