In re A.J.L.H., 289 N.C. App. 644 (2023)
Stay granted
and writ of supersedeas granted August 23, 2023
Held:
Vacated and Remanded in Part
- Facts and procedural history: Returned on remand from the supreme court, see 384 N.C. 45 (2023), this matter involves an appeal of the adjudication and visitation portion of the initial disposition order. All three children share the same mother. Respondent step-father is the biological father of the youngest child; the two older children have different biological fathers. DSS filed a petition based on the repeated use of corporal punishment with a belt that caused bruising and marks on the oldest child, who was 9 years old, as well as a requirement to stand in the corner for hours at a time and to sleep on the floor. The parents did not believe their disciplinary methods were cruel or unusual. After hearing, the oldest child was adjudicated abused and neglected and the younger siblings were adjudicated neglected. At initial disposition, the oldest child was placed with a relative and the younger siblings were placed in foster care. Only the biological father of one of the younger children was granted supervised visitation; respondent mother, and respondent (step)father, and the third biological father, were denied visitation, after a determination that visitation was not in the children’s best interests while respondents were working on their case plans with DSS. The court also denied placement of the younger juveniles with respondent-father’s relatives and denied requests to attend medical appointments. The court of appeals vacated and remanded the adjudication of neglect for the oldest juvenile, ordered the trial court to dismiss the adjudications of the siblings, and ordered on remand that if the older juvenile was adjudicated the trial court order general and increasing visitation with the mother. The supreme court reversed the court of appeals decision, thereby affirming the adjudication orders, and held the court of appeals instruction to the trial court regarding disposition improper. The supreme court returned the matter to the court of appeals to address the respondents’ remaining arguments regarding the disposition order. Respondents argue the trial court abused its discretion when it prohibited any visitation between respondent parents and their children.
- “The assessment of the juvenile’s best interests concerning visitation is left to the sound discretion of the trial court and ‘appellate courts review the trial court’s assessment of a juvenile’s best interests solely for an abuse of discretion.’ ” Sl Op. at 7, citing In re A.J.L.H., 384 N.C. at 57. “The standard of review that applies to an [assertion] of error challenging a dispositional finding is whether the finding is supported by competent evidence.” Sl. Op. at 8.
- Visitation may be denied “when it is in the juvenile’s best interest consistent with the juvenile’s health and safety.” Sl. Op. at 8 (citation omitted). Based on precedent, factors a court must consider is whether the parent has a long DSS history, if the reason for the child’s removal is related to previous issues that led to another child’s removal, whether the parent failed to or minimally participated in the case plan, whether a parent failed to consistently attend visits, and whether a parent relinquished their rights.
- “After initially concluding a parent is either unfit or has acted inconsistent with his or her parental rights, ‘even if the trial court determines that visitation would be inappropriate in a particular case. . . it must still address that issue in its dispositional order and either adopt a visitation plan or specifically determine that such a plan would be inappropriate in light of the specific facts under consideration.’ ” Sl. Op. at 8.
- The trial court failed to make specific determinations of the factors affecting visitation for “each child with each parent.” Sl. Op. at 9 (emphasis in original). There were no findings or conclusions regarding unfitness or conduct inconsistent with their parental rights, which must occur when no visitation is ordered. The dispositional findings must be supported by clear and convincing evidence.
- Author’s note: This author believes the requirement that the dispositional findings be made by clear and convincing evidence relate to those that support a conclusion that parent is unfit or has acted inconsistently with their constitutionally protected rights.
- “Neither the record nor the order provides a finding or explanation for the objectively disparate treatment accorded to [one of the younger children]’s biological father and the other three parents involved in the matter, nor the denial of family or relative placement, and participation in the children’s medical appointments.” Sl. Op. at 11. These failures constitute an abuse of discretion.
- Court vacated the dispositional portions of the order and remanded to the trial court to make the “required findings of fact and conclusions of law concerning visitation, family placement, and parental involvement in medical treatment in the best interests of each child for each respective parent of each child.” Sl. Op. at 11 (emphasis in original).
Category:
Abuse, Neglect, DependencyStage:
VisitationTopic:
Findings