In re A.J.J., ___ N.C. App. ___ (July 2, 2025)

Held: 
Affirmed in Part; Vacated in Part; and Remanded
  • Facts: The child at issue was adjudicated neglected and dependent. During permanency planning the child was placed with the child’s paternal uncle and his girlfriend. Mother was living in Rocky Mount and the child in Greenville. The trial court ultimately granted legal and physical custody of the child to the uncle and his girlfriend (custodians), terminated jurisdiction, and transferred the case to a Chapter 50 proceeding. The trial court entered a Chapter 50 order that granted Mother weekly phone calls and monthly supervised visitation with the child at a location agreed upon by the custodians and Mother. The order granted the custodians discretion to transition to unsupervised visits as well as to cease visits if the visits or contact triggered regressive behavior in the child or ‘causes discord between the [Custodians] that may lead to possible placement disruption.’ Sl. Op. at 21. Mother appeals, arguing the trial court abused its discretion by granting the custodians the discretion to modify or cease visitation. Mother further argues the visitation order does not accommodate her physical disability under the Americans with Disabilities Act.
  • Appellate courts review a trial court’s order regarding visitation for an abuse of discretion.
  • Because the order for visitation was included in the Ch. 50 order, the visitation provisions of G.S. 7B-905.1 do not apply. The trial court properly terminated jurisdiction in the Chapter 7B proceeding under G.S. 7B-911 and opened a new Chapter 50 civil custody case. Therefore, caselaw governing the award of visitation in civil custody orders applies. Caselaw under G.S. Chapters 7B and 50 “draw the same conclusion with respect to the trial court’s improper delegation of authority to award visitation of a minor child.” Sl. Op. at 20-21, n.5. The Chapter 50 order improperly delegates the judicial authority of modifying or ceasing visitation to the custodians.
  • The visitation provisions of the Chapter 50 order are vacated and remanded.
  • Mother waived her argument that the court should have considered her physical disability and apply the Americans with Disabilities Act to the visitation provision when addressing the location of the visits. “Claims that DSS violated the Americas with Disabilities Act must be asserted at the time the service plan is adopted to be preserved for appeal.” Sl. Op. at 23 (citation omitted). Mother did not raise this argument at the hearing and cannot argue it for the first time on appeal.
Category:
Abuse, Neglect, Dependency
Stage:
Visitation
Topic:
Order
Tags:
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visitation
delegate authority
Chapter 50