In re A.S., ___ N.C. App. ___ (Dec. 31, 2020)

Held: 
Vacated and Remanded
  • Facts: The juveniles were adjudicated neglected. Starting with nonsecure custody and continuing through two permanency planning hearings, the juveniles were placed with their paternal grandparents. Based on the grandparents’ request prompting a motion for review by DSS, one of the juveniles was placed in a different home. The permanent plans were primary of reunification and secondary of guardianship. Throughout the case, mother complied with her case plan and made progress. At the last permanency planning hearing, DSS and the GAL recommended reunification continue to be a permanent plan for both juveniles. The court ordered reunification with mother continue as a permanent plan for the one juvenile who was no longer placed with paternal grandparents and awarded custody of the other juvenile to the grandparents and eliminated reunification as a secondary plan as permanency had been achieved. Mother appeals.
  •  Standard of review is whether competent evidence supports the findings and whether the findings support the conclusions of law. Conclusions of law are reviewed de novo.
  • DSS characterizes one challenged finding of fact as a clerical error – the finding states mother has not remained available to the court, DSS, or GAL when other findings of fact contradict that challenged finding, and no evidence supports that finding. “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.” Sl.Op. at 8. Using the word “not” changes the entire meaning, making it unclear as to whether it is a clerical error. The finding is unsupported by the evidence.
  • Findings that mother delayed participating in her case plan and services are unsupported by the evidence. The record shows mother started engaging in her services before the adjudication and continued to engage in the services. Further the finding that mother has not alleviated the conditions leading to the children’s removal is unsupported as the evidence shows the opposite.
  • The conclusion that mother was unfit and acted inconsistently with her constitutionally protected status is based on the findings of her delaying engaging in services and not alleviating the conditions that led to the children’s removal – both of which are unsupported by the evidence.  Employing a de novo review, the conclusion of law is error.
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
Findings of Fact
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