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Domestic Relations – Parent & Child – Guardianship – Insufficient Progress – Futility Finding

Domestic Relations – Parent & Child – Guardianship – Insufficient Progress – Futility Finding

In its findings in support of guardianship for the respondent-Mother’s four children, the trial court could rely on a social worker’s testimony that she had talked to Mother’s housing manager, who told her that Mother’s public housing was in jeopardy because (1) Mr. H, the father of two of Mother’s daughters, was banned from the premises but still visited Mother’s apartment and (2) Mother had not responded to the housing manager’s repeated inquiries about Mr. H’s visits. In a permanency hearing, the court may consider hearsay evidence that the court finds to be relevant, reliable and necessary to determine the needs of the children and the most appropriate disposition.

We affirm the guardianship order in part and remand in part for necessary findings.

The evidence supports the trial court’s finding that Mother’s housing was in jeopardy. Although Mother completed domestic violence classes, she continued to make 911 calls because of domestic violence. While DSS recommended that Mother pursue a domestic violence protective order, she did not obtain one because she failed to appear in court. Mother did not present evidence to refute the testimony regarding domestic violence or the 911 reports. The record supports the trial court’s finding.

As part of its Finding of Fact 11, the trial court found that Mother had “tested positive for Narcan and there is no reason to test positive for Narcan other than Respondent Mother was on the verge of overdosing and someone administered it to her.” However, the naxolone that showed up on Mother’s drug tests is an expected result for both Narcan and Mother’s reported prescription medication, Suboxone. We strike this portion of Finding of Fact 11.

Before a trial court may order the cessation of reunification efforts, it must make the findings required by G.S. § 7B-906.2. The trial court’s findings adequately cover most of the findings. However, the trial court failed to make the § 7B-906.2(d)(3) finding as to whether Mother remains available to the court, DSS and the guardian ad litem. The proper remedy is remand. On remand, the trial court may, in its discretion, take additional evidence.

Affirmed in part, remanded in part.

In re M.S. (Lawyers Weekly No. 012-116-23, 26 pp.) (Allison Riggs, J.) (Hunter Murphy, J., concurring in part and concurring in result only in part without separate opinion) Appealed from Robeson County District Court (Gregory Bullard, J.) Edward Yeager for petitioner; Sophie Goodman for guardian ad litem; Benjamin Kull for respondent. North Carolina Court of Appeals (unpublished)

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