In re: M.S., L.S. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-615
Filed 06 June 2023
Rutherford County, Nos. 21JA20, 21JA21, 21JA22
IN THE MATTER OF: M.S., L.S., A.S., Minor Children.
Appeal by defendant from judgment entered 28 April 2022 by Judge Corey J.
MacKinnon in Rutherford County District Court. Heard in the Court of Appeals
9 May 2023.
Hanna Frost Honeycutt, for the petitioner-appellee.
Attorney for GAL, Matthew D. Wunsche, for the other-appellee.
Gillette Law Firm PLLC, by Jeffrey William Gillette, for the respondent-
appellant.
Emily Sutton Dezio, PA, by Emily S. Dezio, for the respondent-appellant.
TYSON, Judge.
Respondent-Mother (“Mother”) and Respondent-Father (“Father”) appeal from
a disposition and adjudication order entered on 28 April 2022, which ceased DSS’s
reunification efforts and all visitation of Mother and Father with their three children.
We affirm in part, vacate in part, and remand.
I. Background
Rutherford County Department of Social Services (“DSS”) obtained custody of
Mother’s and Father’s three children, six-year-old Micky, five-year-old Lucy, and
three-year-old Annette, on 7 February 2021. See N.C. R. App. P. 42(b) (pseudonyms
IN RE M.S., L.S., & A.S.
Opinion of the Court
used to protect the identity of minors).
DSS received a report on 8 January 2021 alleging Mother and Father suffered
from substance abuse issues, engaged in a history of domestic violence, and their
home lacked electricity. DSS received another report three days later alleging
improper supervision of the children, alcohol abuse by Father, and asserting Mother
was often covered in bruises. A third report was received in early February and
alleged Father had assaulted one of the minor children while visiting Father’s family
in Michigan and an “amber alert” was subsequently issued.
DSS investigations revealed a history of domestic violence between Mother and
Father. The youngest child, Annette, who was one year old at the time, tested positive
for methamphetamines two days after being removed from Mother’s and Father’s
home. DSS also discovered Mother’s and Father’s parental rights had been
terminated in Michigan for five other minor children: two children were Father’s
biological children, two children were Mother’s biological children, and one was the
biological child of both Mother and Father.
Shortly after DSS began investigating, Mother agreed to reside in the local
PATH shelter to protect herself and the juveniles from Father, given the recent
assault charges and amber alert accusations in Michigan. Mother left the PATH
shelter after only a few days. DSS filed juvenile petitions for neglect, took custody
of the children, and asserted:
The Department received reports regarding this family on
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January 10, 11, and February 4, 2021. These reports
included concerns of domestic violence, improper
discipline, improper care, and substance use. The
allegations were denied by the family. Throughout the
assessment it was found that the family has significant
history in Michigan. The parents were TPR’d [sic] on in
Michigan due to sexual abuse. Throughout the assessment
the professional collaterals had serious concerns for the
children, due to being around [Father]. The family fled
Michigan when they found out they were pregnant with
[Micky], for fear that Michigan DSS would take this child.
Due to severe concerns of domestic violence and sexual
abuse and the children not being verbal, Social Worker [sic]
scheduled a medical exam for the children. Before this
exam took place, the family fled to Michigan. The report
received on February 4, 2021, had serious concerns of
substance use and domestic violence. Social Worker [sic]
has not been able to reach or locate the family since the last
week of January 2021. There are serious concerns
regarding the risk of harm to these children based on the
history of the parent’s behavior with no evidence of
treatment or behavior[al] change.
An order for nonsecure custody was entered because Mother and Father had
“created conditions likely to cause injury or abuse or has failed to provide or is unable
to provide, adequate supervision or protection.” The juveniles were adjudicated as
neglected for living in an environment injurious to their welfare pursuant to N.C.
Gen. Stat. § 7B-101(15)(e) (2021).
The 9 February 2021 order on need for continued nonsecure custody provided
Mother and Father should receive one hour of supervised visitation each week.
Father’s case plan provided he:
a) Agrees to complete a domestic violence batterer’s
assessment and take classes if recommended by the
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provider.
b) Agrees to abide by the no-contact order in place between
him and the children’s mother, [ ].
c) Agrees to complete a Comprehensive Clinical
Assessment (CCA) and follow all recommendations.
d) Agrees to complete a Sex Offender Evaluation.
e) Agrees to submit random drug screens within 24 hours
of the request.
f) Agrees to maintain appropriate housing.
g) Agrees to actively seek employment and notify the Social
Worker of submitted job applications and interviews.
Mother’s case plan on 17 February 2021 provided she:
a) Agrees to complete a domestic violence victim’s
assessment and take classes if recommended by the
provider.
b) Agrees to abide by the no-contact order in place between
her and the children’s father, [ ].
c) Agrees to participate in and graduate from parenting
classes.
d) Agrees to complete a Comprehensive Clinical
Assessment (CCA) and follow all recommendations.
e) Agrees to engage in therapy.
Mother attended one hour of supervised visitation. Nothing was noted in the
record of any issues arising during that visit. A DSS witness testified shortly after
that visit, Annette and Lucy began experiencing asserted “sexualized behaviors.”
Visitation was ceased after a pre-adjudication hearing held on 16 March 2021. The
pre-adjudication order found:
4. That the minor child and siblings have been exhibiting
sexualized behaviors that are not appropriate for their
ages.
5. That the Department has obtained TPR orders from the
State of Michigan regarding other minor children where
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the respondent parents had their rights terminated due to
sexual abuse of those children and allowing the sexual
abuse to occur.
6. That the potential harm to the minor child is greater
than the benefit of visitation occurring at this time.
A hearing was held on 22 March 2022. DSS called several witnesses, including
social workers, a foster care worker, foster care parents for the children, and the
officer who had dealt with several domestic violence calls at Mother’s and Father’s
home. Certified copies of the petitions and orders terminating Mother’s and Father’s
parental rights to other children in Michigan were entered. Evidence at trial
indicated Mother failed to acknowledge Father’s domestic violence:
[DSS ATTORNEY]: And did you ask the Respondent
Mother about the domestic violence?
[SOCIAL WORKER]: I did.
[DSS ATTORNEY]: Okay. What was her answer?
[SOCIAL WORKER]: She denied it. I’d spoke to her
multiple times just offering my help if she needed it and
she continuously denied it. I believe she actually told me
there was some domestic violence in the past but that he
was better now.
The trial court made identical findings for all three children and found:
8. That the Department received a report on the 8th of
January, 2021 alleging substance abuse in the home and a
lack of power at the residence.
9. That the social worker went to the home and found the
home to be without running water. That the home did have
power.
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Opinion of the Court
10. That all three children and the respondent parents
were at the home.
11. That another report was received on the 11th of
January, 2021 alleging improper supervision and alcohol
abuse.
12. That the social worker went to the residence and
noticed the respondent mother to be visibly upset and that
she acts differently when the respondent father is present
for the conversation.
13. That there is a history of 911 calls out to the house
regarding domestic violence.
14. That the respondent father was charged with
disorderly conduct and assault on a female after an
incident in December of 2020.
15. That during that incident Officer James Greene found
the respondent father in the middle of the road yelling
obscenities towards another gentleman. He stopped to talk
to the respondent father and the respondent father told
him that the officer should go and check on his wife.
16. Officer Greene suspected that he was under the
influence based on his behaviors.
17. Office[r] Greene arrived at the home where the
respondent mother and three minor children were present.
He observed the respondent mother to be beaten up with a
blood[y] lip and bleeding from the side of her eye. The
respondent mother stated the respondent father assaulted
her. She was offered but refused medical care.
18. The assault on a female was ultimately dismissed due
to the respondent mother’s failure to cooperate with the
prosecution.
19. That part of his bond release conditions was to not have
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Opinion of the Court
any contact with the respondent mother. He violated this
condition on multiple occasions.
20. That when questioned by the social worker about the
domestic violence, the respondent acknowledged a prior
history of domestic violence but denied any current issues.
21. That the Department received another report alleging
the respondent father assaulting one of the minor children
and the respondent mother while they were in Michigan at
the paternal grandmother’s house. That an amber alert
was issued on the 4th of February, 2021.
22. That the family returned to North Carolina and the
social worker went to the home on the 6th of February,
2021.
23. That during this home visit the respondent mother
stated that “ [Father] is not well right now,” referring to
the respondent father. She stated that he is a “whole other
person” and “needs help.”
24. She denied the incident of domestic violence[,] but the
social worker noticed a bruise on the respondent mother’s
arm.
25. The respondent mother did not allow a photograph to
be taken of the bruise.
26. That the respondent father was in jail on this date, but
bonded out on the 7th of February, 2021. That the social
worker talked to the respondent father[,] and he
acknowledged a history of domestic violence but stated it
was in the past.
27. That the respondent mother agreed to go to the PATH
Shelter with the minor children.
28. That she ultimately did not stay at the PATH Shelter
and the Department took custody of the minor children.
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Opinion of the Court
29. That the social worker obtained DSS records from the
State of Michigan. The respondent parents had their
parental rights involuntarily terminated for multiple
minor children due to the respondent father sexually
abusing a minor child and physically abusing another
minor child. The respondent mother allowed the abuse.
30. The records also indicate a history of domestic violence
between the respondent parents while residing in
Michigan.
31. That there are no records to indicate the respondent
father received any type of sex offender treatment to
address the concerns from the prior case.
32. The respondent parents moved to North Carolina
shortly after their rights were terminated in Michigan.
33. That on the 9th of February, 2021, the minor child
[Annette] was drug screened and her hair was positive for
methamphetamines.
34. That after the minor children were placed in the
custody of the Department[,] they were placed in foster
home.
35. That the minor children had significant delays and
were assessed to need speech and occupation therapy.
None of the minor children were able to communicate
verbally.
....
37. The minor child, [Lucy], was placed by herself in a
foster home. The foster mother observed her to have
nightmares and to be scared of the bathroom.
38. She also observed [Lucy] to push toys against her
private area and that she would grind her private area on
the side of the bathtub.
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Opinion of the Court
39. She was also observed to keep her legs tightly crossed
and could be heard say “no no” at night.
40. On one occasion she was given lotion after a bath[,] and
she immediately went to rub the lotion on her private area.
41. On another occasion, she was handed a phone and
immediately pointed the camera at her private area.
42. That [Lucy] demonstrated sexualized behaviors that
are not age appropriate.
43. That initially, [Anette] and [Micky] were placed
together in a foster home.
44. The foster parents observed [Micky] to have severe
physical tantrums and to be non-verbal. That he would
have nightmares where he would start screaming. That he
was 4 at the time.
45. That [Micky] would have food aggression.
46. That he avoided bath time and had to be carried in the
bathroom to be cleaned.
47. That [Annette] was observed to have fear of everyone,
especially males. That she would scream and cry a lot.
48. That she, like her siblings, did not want to take a bath.
The placement had to use baby wipes to clean her for the
first few weeks while in their care.
49. She also demonstrated sexualized behaviors of rubbing
her private area against her car seat, high chair, and in the
bathtub.
50. She had nightmares every night and would wake up
drenched in sweat. She could be heard saying “no.”
51. That the foster parents observed [Micky] and [Anette]
not to have a sibling bond.
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52. That all of the minor children have significant delays.
53. That there is a long-standing history of domestic
violence between the respondent parents and these
children have been exposed to the domestic violence. There
was at least one incident of significant domestic violence in
front of the minor children in North Carolina.
54. All three children exhibit overly sexualized behaviors
for their age.
55. The Court took Judicial Notice of 20 CR 53048.
56. That the minor child named above is a neglected
juvenile as defined by N.C. G[en.] S[tat.] § 7B-101(15).
During the dispositional hearing held on the same day, a foster care worker
testified regarding Mother’s and Father’s compliance with their case plans. The
possibility of other family members obtaining custody of Micky, Annette, and Lucy
was also discussed.
At the disposition hearing, the trial court found these additional facts:
7. That as of March 22, 2022, the respondent mother has
not completed any of the [case plan] items. She has not
engaged in domestic violence classes even though DSS has
provided her with the contact information for the program.
8. That the no contact order was dismissed and the
respondent mother is now living with the respondent
father again. They are both homeless or living in different
motels when they have the money. They can be found
walking on the trail or sitting at Wal-Mart holding signs
asking for money.
9. That DSS made a referral for the respondent mother to
complete her Comprehensive Clinical Assessment[,] but
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Opinion of the Court
she never followed through with this.
10. That DSS made another referral[,] and the respondent
mother completed the assessment on October 8, 2021 but
did not return for services until the dates listed below:
February 14, 2022 (Outpatient therapy), February 21, 2022
(outpatient therapy), March 11, 2022 (medication
management) NO SHOW, March 25, 2022 (Outpatient
therapy.
11. That the respondent mother has refused drug screens
on two separate occasions.
12. That the respondent mother has not made any progress
on her case plan. She does sometimes attend court in this
matter.
...
14. That as of March 22, 2022, the respondent father has
submitted one drug screen at the beginning of the case. He
completed a domestic violence batterer’s assessment and
was recommended to participate in batterer’s classes. The
respondent father has not followed through with his classes
or completed any of the other items listed above.
15. That the respondent father completed an assessment
for the Batterer’s Intervention Program in April 2021 but
did not return to begin classes. He has since been
discharged.
16. That he did not obtain a sex offender evaluation.
17. That the no contact order was dismissed[,] and the
respondent mother is now living with the respondent
father again. They are both homeless or living in different
motels when they have the money. They can be found
walking on the trail or sitting at Wal-Mart holding signs
asking for money.
18. That the respondent father has a criminal court date of
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Opinion of the Court
April 11, 2022 to address the current pending charges. If
convicted[,] his probation will be revoked[,] and he will be
looking to serve jail time. The respondent father also has
a felony charge that will be addressed after the April 11,
2022 court date.
1[9]. That the respondent father reports he is engaged in
TASC services[,] but he has not signed a release for DSS to
receive this information. That the respondent father’s
probation officer reports he is not passing drug screens.
[20]. That the respondent father has not made any progress
on his case plan.
[21]. That a Court Report for the Dispositional Hearing was
received into evidence and reviewed by the Court, and the
facts contained in said summary are incorporated herein
as further findings of fact. The Court Report, marked as
Exhibit “A”, is attached hereto and incorporated herein by
reference.
2[2]. That the Department has made reasonable efforts
towards the permanent plan of reunification in this matter.
2[3]. That reasonable efforts for reunification have been
made by the agency to include: development of the Out of
Home Service Agreement for the respondent mother; Child
and Family Team Meetings, home visits, and other services
as described in the attached court report.
2[4]. That the conditions which led to the placement of the
Child in DSS custody still exist and the return of the Child
to the home of the respondent parents would be contrary to
the welfare of the Child at this time. That the respondent
father is appropriate for a trial home placement.
2[5]. That it is in the best interest of the Child to remain in
the custody of Rutherford County Department of Social
Services.
2[6]. That the recommendation for th[ese] [juveniles] is a
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Opinion of the Court
plan of non-reunification and to come back within 30 days
to set a permanent plan for the minor child[ren].
2[7]. That both respondent parents have had their parental
rights involuntarily terminated in Michigan. That neither
testified in this matter.
The trial court adjudicated all minor children as neglected under N.C. Gen.
Stat. § 7B-101(15) (2021). The trial court concluded grounds existed for the
termination of parental rights under N.C. Gen. Stat. § 7B-901(c) (2021). Mother and
Father timely appealed.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2021).
III. Issues
Father argues several findings of fact are not supported by competent evidence.
He also argues the evidence, taken as a whole, fails to support an adjudication of
neglect.
Father and Mother both argue the trial court erred by ceasing reunification
efforts in the initial dispositional orders. They argue the trial court improperly based
its decision on the involuntary termination of Mother’s and Father’s parental rights
for the five other children in Michigan.
Father and Mother both assert the district court abused its discretion by
ordering no visitation between the parents and their children.
IV. Neglect Adjudication
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Opinion of the Court
Father challenges several findings of fact, including findings of fact 12, 14-17
and 24. He argues those findings of fact are not supported by competent evidence.
Without those facts, Father argues the findings of fact only demonstrate a “raw
suspicion” of domestic violence, and no evidence exists to demonstrate direct violence.
A. Standard of Review
In reviewing an adjudication order, this Court must determine “(1) whether
the findings of fact are supported by clear and convincing evidence, and (2) whether
the legal conclusions are supported by the findings of fact.” In re Gleisner, 141 N.C.
App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations and internal quotation marks
omitted). “In a non-jury neglect adjudication, the trial court’s findings of fact
supported by clear and convincing competent evidence are deemed conclusive, even
where some evidence supports contrary findings.” In re Helms, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997).
Unchallenged findings of fact are presumed to be supported by sufficient
evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991).
B. Analysis
“The allegations in a petition alleging that a juvenile is abused, neglected, or
dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-
805 (2021).
1. Finding of Fact 12
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Finding of fact 12 provides: “the social worker went to the residence and
noticed the respondent mother to be visibly upset and that she acts differently when
the respondent father is present for the conversation.”
The DSS attorney asked the social worker about Mother’s demeanor during
direct examination. The social worker answered: “Most of the time when I went to
the home [Mother] was upset and crying, just tearful most of the time.” On redirect,
the DSS attorney had the following exchange with the social worker:
[DSS ATTORNEY]: All right. And on your first, I’m
looking at your dictation again, and on your first trip out
there [Father] was there when you first arrived but he had
to leave for a little bit and you described that when he left
. . . Respondent Mother, began to cry?
[SOCIAL WORKER]: Yes.
[DSS ATTORNEY]: She was upset. Do you remember
that?
[SOCIAL WORKER]: I do.
[DSS ATTORNEY]: And did she state why she was upset?
[SOCIAL WORKER]: She never really would. I remember
specifically multiple home visits, me going and her crying
for no alleged, I mean she never really gave me a reason as
to why she was so upset.
The social worker testimony revealed her multiple personal observations and
rationally-based perception regarding Mother’s behavior. Finding of Fact 12 was
based on clear, cogent, and convincing evidence. Father’s argument is without merit.
2. Findings of Fact 14-17
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Father also argues findings of fact 14-17 are not supported by clear, cogent,
and convincing evidence. Those findings of fact collectively describe Officer Greene’s
encounter with Father in late 2020 and his follow-up encounter with Mother. Father
asserts Officer Greene’s testimony omits the date the domestic violence incident
occurred, and the trial court’s finding was not based on clear, cogent, and convincing
evidence. Officer Greene testified to the following at trial:
[DSS ATTORNEY]: Officer Greene, I’m going to show you
a shuck, criminal file. Is this the one where you took out
the charge?
[OFFICER GREENE]: Yes, sir.
[DSS ATTORNEY]: Okay. And can you just tell me the
events of how that charge came about that day?
[OFFICER GREENE]: That day we dealt with [Father].
He was in front of Tri-City Motel on the East, at the
intersection of East Main Street and Ledbetter Road in our
city limits of Spindale. We got a call about a subject being
disruptive in the middle of the roadway. Myself and my
partner, Officer Edwards, got there. [Father] was in the
middle of the roadway shouting obscenities towards Tri-
City Motel. We asked [Father] on several occasions to step
out of the roadway. He didn’t listen. We then placed him
under arrest for [being] disruptive and shouting
obscenities towards the hotel. And at the time during his
arrest he made the comment to me that I need to go check
on his wife at the residence and that’s where the charge
came from when I went to check on his wife at the residence
after we had arrested him for the other charge.
[DSS ATTORNEY]: Did you go, did you go check on his
wife?
[OFFICER GREENE]: I did, at 175 Illinois Street.
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[DSS ATTORNEY]: So what was the scene when you
arrived?
[OFFICER GREENE]: When I got there it was dark inside
the residence, knocked on the door. [Mother] came to the
door and let us in. Well, actually she didn’t let us in. She
knocked on the door and we walked [sic], was checking on
her to make sure she was okay. Opened the door, seen her
sitting on the couch. It was dark in there. She had her three
children in there with her and she was beat up in her face,
eye swelled up, bleeding from her lip, from the side of her
eye. I asked her then did she need medical treatment. She
didn’t want medical treatment. She didn’t want us to be
there. I asked her what had happened and she stated that
her and her husband, [Father], had got into an argument
and he had assaulted her but she didn’t want to press
charges against him.
[DSS ATTORNEY]: Did [Father], so was he being carried
to the jail?
[OFFICER GREENE]: Yes, he was already in custody at
the county jail at the time, yes.
[DSS ATTORNEY]: So when he told you to go check on his
wife, I mean that’s kind of an abnormal thing to say –
[OFFICER GREENE]: It was.
[DSS ATTORNEY]: – after being arrested. Did he offer
any explanation?
[OFFICER GREENE]: He didn’t. He just stated a couple
of times you may want to go check on my wife.
Officer Greene’s testimony was based on personal observations and provided
clear, competent and convincing evidence to support the trial court’s findings of fact.
Officer Greene was presented with the criminal file of the charges he initiated at trial
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Opinion of the Court
and testified about what he had remembered from the encounter. Later, during the
testimony of the social worker, the court acknowledged the incident had actually
occurred in November 2020:
THE COURT: Any other follow-ups? You said that it was
January. Are we talking about January of ‘21?
THE WITNESS: Yes.
THE COURT: So after the criminal charge which was looks
like November of –
THE WITNESS: Yeah.
Whether the trial court’s findings indicate the exact date the incident occurred
does not affect the underlying validity of the findings. A minor error about the exact
date upon which a domestic violence incident occurred is not prejudicial. In re Clark,
72 N.C. App. 118, 126, 323 S.E.2d 754, 759 (1984) (explaining any “ambiguity” in the
evidence or findings of fact regarding the exact date of an assault are “minor” and
“non-prejudicial”). Additionally, the children’s court reports provide the exact day
Father was arrested on 19 November 2020. Father’s argument is without merit.
3. Finding of Fact 24
Father lastly asserts finding of fact 24, which provided Mother “denied the
incident of domestic violence[,] but the social worker noticed a bruise on the
respondent mother’s arm,” was based on improper hearsay evidence. Father’s
argument refers to the following exchange:
[DSS ATTORNEY]: When you went to see the Respondent
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Mother when they got back from Michigan, did you observe
any marks or bruises on her?
[SOCIAL WORKER]: In reading the dictation on-call did.
She observed a bruise on her arm.
[DSS ATTORNEY]: Did anyone ask the Respondent
Mother about the bruise?
[SOCIAL WORKER]: They did. They asked what
happened and –
[FATHER’S ATTORNEY]: Objection. This is hearsay.
THE COURT: Who – are you testifying about the
conversation you had with her or –
[SOCIAL WORKER]: No, just what was in dictation from
the on-call social worker.
[FATHER’S ATTORNEY]: I’d ask to voir dire (inaudible).
THE COURT: I’m going to actually sustain the objection
but, sure.
The record indicates Father objected to any testimony regarding what the
social worker had asked Mother about the bruise, which the Court sustained as
hearsay. Finding of fact 24 is instead based upon the statement elicited prior to the
hearsay objection, which asserted the social worker had observed a bruise on Mother’s
arm. Father failed to object to this portion of the testimony at trial. His argument is
overruled.
V. Ceasing Reunification Efforts
Father and Mother each argue the trial court erred by ceasing reunification
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Opinion of the Court
efforts pursuant to N.C. Gen. Stat. § 7B-901(c).
A. Standard of Review
If the trial court follows the factors in the statute and enters supported findings
of fact, a trial court’s permanency planning decision to cease reunification efforts
pursuant N.C. Gen. Stat. § 7B- 901(c) is reviewed for an abuse of discretion. In re
B.R.W., 278 N.C. App. 382, 409, 863 S.E.2d 202, 221 (2021) (explaining “as long as
the trial court considers the factors as required by N.C. Gen. Stat. § 7B-901(c) and
makes the appropriate findings, we can find no abuse of discretion by the trial court’s
decision”), aff’d, 381 N.C. 61, 871 S.E.2d 764 (2022).
B. Analysis
Our General Assembly amended the statute governing dispositional hearings
in 2015. The current version of the statute provides:
(c) If the disposition order places a juvenile in the custody
of a county department of social services, the court shall
direct that reasonable efforts for reunification as defined in
G.S. 7B-101 shall not be required if the court makes written
findings of fact pertaining to any of the following, unless
the court concludes that there is compelling evidence
warranting continued reunification efforts:
...
(2) A court of competent jurisdiction has terminated
involuntarily the parental rights of the parent to
another child of the parent.
N.C. Gen. Stat. § 7B-901(c)(2) (2021) (emphasis supplied).
Here, the trial court concluded: “a ground exists under N.C.G.S. 7B-901(c) and
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Opinion of the Court
therefore a reunification plan is not appropriate in this matter. That no compelling
interest exists to order a plan of reunification.” The court made no findings on
reasons, culpability, or temporal proximity of that ground to conclude “no compelling
interest exists to order . . . reunification,” where the constitutional safeguards and
the statute mandates “the court shall direct that reasonable efforts for reunification”
be made. Id. (emphasis supplied).
Mother argues she was not bound by her case plan because she never signed
it. The record on appeal does not contain any case plan which bears the Mother’s
signature. Father’s attorney cross-examined the foster care worker on this issue. The
social worker testified each time she contacted Mother and Father she would “go over
their case plans and discuss[:] are you guys working on this, what can I help you with,
do I need to call and make appointments, those types of things, so they were aware
of what was on their case plans.”
The social worker testified Father and Mother had failed to comply with the
vast majority of their case plans, and neither parent had fully completed a single item
therein. The trial court found Mother had initialed many of the aspects of her
purported plan, but had failed to follow up on or complete the requirements. The trial
court also found the conditions which led to the children’s placement in DSS custody
still existed, and Mother and Father had failed to address the issues which led to the
children’s removal. DSS entered into evidence certified copies of the petitions and
orders from Michigan terminating Mother’s and Father’s parental rights to other
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Opinion of the Court
children.
Respondents have failed to show the trial court prejudicially erred by not
ordering DSS’s reunification efforts be continued under N.C. Gen. Stat. § 7B-
901(c)(2). In re B.R.W., 278 N.C. App. at 409, 863 S.E.2d at 221.
VI. Visitation
Father and Mother both assert the district court abused its discretion by
ordering no visitation with their children.
A. Standard of Review
If the trial court follows the factors and mandates in the statute and case law
and enters supported findings of fact, “appellate courts review the trial court’s
dispositional orders of visitation for an abuse of discretion, with an abuse of discretion
having occurred only upon a showing that the trial court’s actions are manifestly
unsupported by reason.” In re L.E.W., 375 N.C. 124, 134, 846 S.E.2d 460, 468 (2020)
(citations, internal quotation marks, and alterations omitted); accord In re J.H., 244
N.C. App. 255, 269, 780 S.E.2d 228, 238 (2015) (“We review a trial court’s
determination as to the best interest of the child for an abuse of discretion.”) (citation
and quotation marks omitted).
“Abuse of discretion exists when the challenged actions are manifestly
unsupported by reason.” In re S.R., 207 N.C. App. 102, 110, 698 S.E.2d 535, 541
(2010) (citation and internal quotation marks omitted); see also In re A.J.L.H., __ N.C.
__, at __, 884 S.E.2d 687, 695-96 (2023).
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Opinion of the Court
B. Analysis
When reunification is not required pursuant to N.C. Gen. Stat. § 7B- 901(c),
subsection (d) provides that the “court shall schedule a permanency planning hearing
within 30 days to address the permanent plans in accordance with G.S. 7B-906.1 and
G.S. 7B-906.2.” N.C. Gen. Stat. § 7B- 901(d).
N.C. Gen. Stat. § 7B- 906.1(d) provides a list of criteria the trial court “shall
consider” and must “make written findings.” 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 G.S. 7B-905.1.”
N.C. Gen. Stat. § 7B- 906.1(d)(2) (2021). N.C. Gen. Stat. § 7B- 905.1 addresses
visitation between a parent and their children who are removed from home and taken
from their custody:
An 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) (2021) (emphasis supplied).
Another subsection of N.C. Gen. Stat. § 7B- 906.1 mandates 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:
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Opinion of the Court
(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
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).
“The [trial] court may consider any evidence, including hearsay evidence . . . 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).
This Court has remanded permanency planning orders for failure to make
written findings and conclusions of law pursuant to the criteria listed in N.C. Gen.
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Opinion of the Court
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 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.
In addition to the parental protections contained in the statutes, the Supreme
Court of the United States has repeatedly confirmed there is a fundamental and
constitutional right of parents to the “care, custody and control” of their children.
Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000) (citations omitted).
“It is cardinal with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158,166,
88 L. Ed. 645, 652 (1944).
In subsequent cases also, we have recognized the
fundamental right of parents to make decisions concerning
the care, custody, and control of their children. See, e.g.,
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Opinion of the Court
Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain
that the interest of a parent in the companionship, care,
custody, and management of his or her children ‘come[s] to
this Court with a momentum for respect lacking when
appeal is made to liberties which derive merely from
shifting economic arrangements’” (citation omitted));
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history
and culture of Western civilization reflect a strong
tradition of parental concern for the nurture and
upbringing of their children. This primary role of the
parents in the upbringing of their children is now
established beyond debate as an enduring American
tradition.”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
(“We have recognized on numerous occasions that the
relationship between parent and child is constitutionally
protected.”); Parham v. J. R., 442 U.S. 584, 602 (1979)
(“Our jurisprudence historically has reflected Western
civilization concepts of the family as a unit with broad
parental authority over minor children. Our cases have
consistently followed that course.”)[.]
Troxel, 530 U.S. at 66, 147 L. Ed. 2d at 57.
DSS must overcome the constitutional and “the traditional presumption that
a fit parent will act in the best interest of his or her child.” Id. at 69, 147 L. Ed. 2d at59 (citing Parham, 442 U.S. at 602, 61 L. E. 2d at 121). Mere disagreement with or
failing to follow a DSS recommendation does not render a parent unfit, nor is
necessarily conduct inconsistent with the rights of a parent. Id. Those decisions rest
with the parent.
There is often “testimony in the record below that could have supported
different factual findings and possibly, even [ ] different conclusion[s,] [b]ut an
important aspect of the trial court’s role as finder of fact is assessing the demeanor
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Opinion of the Court
and credibility of witnesses, often in light of inconsistencies or contradictory
evidence.” In re J.A.M., 372 N.C. 1, 11, 822 S.E.2d 693, 700 (2019). While the trial
court is “uniquely situated to make [a] credibility determination,” and “appellate
courts may not reweigh the underlying evidence presented at trial,” the constitutional
and “the traditional presumption that a fit parent will act in the best interest of his
or her child” must be overcome by the State proving unfitness or conduct inconsistent
with parental rights by the prescribed burden of proof. Id.; Troxel, 530 U.S. at 69, 147
L. Ed. 2d at 59 (citing Parham, 442 U.S. at 602, 61 L. E. 2d at 121).
Findings describing a parent’s failure to engage with a case plan or services,
even if previously agreed to, does not compel, but may support a finding that
visitation is inconsistent with a child’s health and safety and may indicate probability
of future neglect without a change in the parent’s circumstances, status, or
conditions. In re C.M., 273 N.C. App. 427, 432, 848 S.E.2d 749, 753 (2020).
Here, the facts are similar to those in In re L.G., because the trial court failed
to include language consistent with the criteria in N.C. Gen. Stat. § 7B-906.1(d)-(e).
In re L.G., 274 N.C. App. at 302, 851 S.E.2d at 689. “[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 [Micky, Annette, and Lucy] to be placed with
[Mother or Father] within six months, it failed to make that conclusion of law in the
permanency planning order.” Id. (emphasis supplied). The trial court initially
ordered visitation of the children with Mother and Father. Only Mother visited her
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Opinion of the Court
children, while under DSS supervision. The record does not reflect any issues that
arose during the visitation.
This matter is remanded to the trial court for further consideration. The trial
court is instructed to make written and supported findings of fact as mandated and
consistent with the criteria outlined in N.C. Gen. Stat. § 7B-906.1(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 G.S. 7B-905.1.”
In re L.G., 274 N.C. App. at 302, 851 S.E.2d at 689; N.C. Gen. Stat. §§ 7B-906.1(d)-(e)
and 7B-905.1.
VII. Conclusion
The trial court’s findings of fact related to adjudication and disposition of
placement of the children outside the home are supported by clear, cogent, and
convincing evidence. In re Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365; In re
Helms, 127 N.C. App. at 511, 491 S.E.2d at 676; Koufman, 330 N.C. at 97, 408 S.E.2d
at 731.
The trial court’s decision to cease DSS’ required reunification efforts of the
children with Father and Mother is not shown to be an abuse of discretion. In re
B.R.W., 278 N.C. App. at 409, 863 S.E.2d at 221. The record shows no efforts by
Father to relieve the conditions which led to the children’s removal from the home.
The disposition order concerning visitation is remanded to the trial court for
further consideration and compliance with the statute. The trial court must make
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Opinion of the Court
supported written findings of fact consistent with the criteria outlined in N.C. Gen.
Stat. § 7B-906.1(d)-(e) and include the appropriate criteria regarding visitation in
N.C. Gen. Stat. § 7B-905.1. In re L.G., 274 N.C. App. at 302, 851 S.E.2d at 689; N.C.
Gen. Stat. §§ 7B-906.1(d)-(e) and 7B-905.1 (2021). It is so ordered.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Judges ARROWOOD and RIGGS concur.
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