In re A.C., 247 N.C. App. 528 (2016)

  • Facts and Timeline re:  Respondent Mother
    • 5/2012 mother agrees to kinship placement of 5-month old child with maternal aunt.
    • 8/2012 petition alleging neglect is filed (without request for nonsecure as child is still living with maternal aunt).
    • 3/2013 child is adjudicated neglected and initial disposition grants legal custody to mother and placement with maternal aunt.
    • 11/2013 first review hearing is held and court renders order of sole legal and physical custody of child to mother (order is entered on 1/24/2014). Because placement is with a parent, further 7B-906.1 hearings are waived, but the court retains jurisdiction rather then enter Ch. 50 custody order pursuant to G.S. 7B-911.
    • 11/2013-12/2014 child remains in care of maternal aunt.
    • 12/2014 mother picks up child from day care using January 2014 court order awarding her custody and refuses to return the child to the maternal aunt.
    • 1/2015 maternal aunt files a motion to intervene as a caretaker (granted),to reopen, and for custody based on a substantial change in circumstances since the January 2014 order.
    • 7/2015 court enters a review order granting maternal aunt sole legal and physical custody and schedules a permanency planning hearing for November 2015. Respondent mother appeals.
  • Constitutional Rights
    • A parent has a paramount constitutional right to custody and control of his or her child. The government may only take a child away from a parent upon a showing, supported by clear and convincing evidence, that the parent is unfit or has acted inconsistently with his or her constitutionally protected status. This standard applies to both civil custody (Ch. 50) and abuse, neglect, and dependency (Ch. 7B) proceedings.
    • There is no bright line test when determining if a parent has acted inconsistently with his or her parental rights. Instead, a court employs a case-by-case analysis. The court looks to the parent’s conduct and intentions. In this case the mother acted inconsistently with her parental rights when she voluntarily allowed her child to continuously remain in the maternal aunt’s custody for 13 months after obtaining legal and physical custody of her daughter. The mother did not voice any agreement or expectation that the situation would be temporary but instead created a situation that “induced the [maternal aunt and child] to flourish as a family unit in a relationship of love and duty with no expectation that it would be terminated.” For 13 months, the mother failed to bear any responsibility for her child. She did not make any effort to take custody of her daughter, develop a plan to transition custody to her, provide any legal mechanism for the maternal aunt to authorize medical or educational care for the child, only sporadically visited with the child, failed to regularly call the maternal aunt or child, and failed to provide any financial support despite having an ability to do so and a court order to pay child support. It was reasonable for the court to infer that the mother intended to presume the natural consequences of her actions. Despite her refusal to agree to the maternal aunt’s appointment as guardian, the mother’s actions showed she had no meaningful intention that custody with the maternal aunt would be temporary. Her objection to the maternal aunt becoming guardian did not evince an intention that the mother would assume her responsibilities as a parent.
    • If the court finds a parent has acted inconsistently with his or her parental rights, it must move to the best interests of the child standard when determining custody. The court does not need to also find the parent is unfit. Because the court found this mother acted inconsistently with her parental rights, the court of appeals declined to address the mother’s appeal of the trial court’s conclusion that she was unfit.  
Abuse, Neglect, Dependency
Disposition (All Stages Post-Adjudication)
Custody Order
Click on a term below for additional case summaries tagged with the same term.