In re B.R.W., 381 N.C. 61 (2022)

• Facts: At a permanency planning hearing, the court ordered guardianship to the paternal grandmother after determining mother was unfit and that she acted inconsistently with her parental rights. Mother appealed. In a divided opinion, the court of appeals affirmed in part (acting inconsistently with parental rights; mother had left children in care of paternal grandmother for 3 years before DSS involvement and delayed seeking appropriate housing for the children during DSS case) and reversed in part (mother successfully completed her case plan, including exercising unsupervised overnight visits, and was not unfit). See summary here. Mother appealed by right to the supreme court.
• The standard of review of a permanency planning order is whether there is competent evidence to support the findings and whether the findings support the conclusion. A determination that a parent has acted inconsistently with their constitutionally protected rights is a conclusion of law and is reviewed de novo. The conclusion must be supported by clear and convincing evidence.
• There is no bright-line rule for determining whether a parent has acted inconsistently with their protected status. The conduct must be reviewed on a case-by-case basis, and the parent’s conduct should be cumulatively viewed.  As previously held, “a period of voluntary nonparent custody[] may constitute conduct inconsistent with the protected status of natural parents and therefore result in the application of the ‘best interest of the child test.’ ” 381 N.C. at 83 (quoting Price v. Howard, 346 N.C. 68, 79 (1997)). Similarly, “a parent’s ‘failure to maintain personal contact with the child or failure to resume custody when able’ could amount to conduct inconsistent with their protected parental interests[.]” Id. (quoting Owenby v. Young, 357 N.C. 142, 146 (2003)). An important factor is whether the parent intended the nonparent custodial arrangement to be temporary or indefinite (no notice of it being temporary). “[P]ast circumstances or conduct which could impact either the present or future of the child is relevant, notwithstanding that such circumstances or conduct did not exist or was not being engaged in at the time of the custody proceeding.’ ” 381 N.C. at 84 (quoting Speagle v. Seitz, 354 N.C. 525, 531 (2001)).
• The court’s findings show that before DSS involvement, mother left the children with grandmother for 3 years and made no efforts to reunify with the children until DSS became involved. During the 3 years, mother visited the children on birthdays and holidays only. During the DSS case where the children were in care for 19 months, mother had a more active role, including regular visitation and paying child support, but she did not obtain suitable housing until right before the permanency planning hearing. Although mother completed her case plan, the children’s strongest bond was with their grandmother, which was the existing family unit created by mother leaving children in grandmother’s care. These finding supports the conclusion that mother acted inconsistently with her protected status by voluntarily giving the grandmother custody and care of the children for 3 years. Mother’s minimal contact during the 3-year period show that she intended the custodial arrangement to be for an indefinite period.
• Mother’s progress on her case plan is relevant to parental fitness; however, her compliance with her case plan “does not overcome the effect of her prior decision to surrender custody of her children to the paternal grandmother….” 381 N.C at 88.  This opinion should not be understood “to preclude any possibility that a parent who has taken affirmative steps, including compliance with the directives of a district court or social services agency, would be able to overcome the effects of past behavior that would be otherwise be inconsistent with his or her constitutionally protected right to parent his or her child….” Id.
• There was no error in applying the best interests of the child standard when awarding guardianship to the grandmother.

Dissent: Not every parent who places their child with a nonparent acts inconsistently with their protected status. Without findings as to whether the custodial arrangement with grandmother was intended to be temporary, the case should be remanded. The message of the majority opinion is unfortunate for parents who are working toward reunification as their progress on their case plan should be a factor when the court is considering whether the parent can exercise their parental rights.