In re A.C., 2021-NCCOA-280

Held: 
Vacated and Remanded
  • Facts: The juvenile was adjudicated neglected and dependent in 2016. The court conducted a permanency planning hearing on September 26, 2019 and rendered a decision that it was granting permanent guardianship.  The court did not address the parent’s constitutional rights, although the DSS attorney raised the issue in closing argument. A permanency planning order (PPO) was entered on October 9, 2019 that granted guardianship to the juvenile’s foster parents.  A subsequent PPO was entered November 13, 2019 that determined each parent acted inconsistently with their constitutional rights and that guardianship was in the child’s best interests. The subsequent PPO was based on sufficient and competent evidence. Father appeals the subsequent PPO.
  • A finding that a parent acted inconsistently with their constitutional rights must be supported by clear and convincing evidence. The trial court did not state the standard during its oral rendition and the order refers to sufficient and competent evidence. This is not harmless error as the GAL and DSS argue but must be remanded for the proper standard to be applied.
  • A parent may waive the finding that they acted inconsistently with their constitutional rights. The court of appeals has issued conflicting opinions on this issue of whether the parent waived appellate review and “would benefit from the guidance of our Supreme Court concerning when and how the constitutional issue of whether parents have acted inconsistently with their constitutionally protected rights must be raised and preserved in the trial court.” Sl.Op.¶17.
Category:
Abuse, Neglect, Dependency
Stage:
Disposition (All Stages Post-Adjudication)
Topic:
Parent’s Rights
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