In re B.C.T., 265 N.C. App. 176 (2019)

Reversed and Remanded
  • Facts:    DSS received a report about mother’s home and her younger child. At the time, her older child was living with a family friend. Mother, her live-in boyfriend (a caretaker), and DSS entered into a family services agreement that focused on emotional and mental health issues, family relationships/domestic violence, and parenting skills. Mother voluntarily agreed to allow her younger child to be placed with the same family friend who was caring for her older child. Months later, DSS filed two petitions (one for each child) alleging abuse and neglect and noting that the petitions were filed because boyfriend, who mother was still living with, had not completed the family services agreement although mother had made progress on her plan. Based on mother’s stipulations, the children were adjudicated neglected. Mother complied with the case plan, exceeded DSS recommendations, and throughout the entirety of the case (investigation through appeal) had unsupervised and unlimited contact with both children. At disposition, DSS recommended the younger child’s reunification with mother but based on the wishes of the older child and time that he had spent with family friend, that custody of the older child be ordered to family friend. The court ordered (1) the younger child remain in DSS custody with placement with family friend and supervised visits with mother of at least one hour every other week, and (2) Chapter 50 custody (via G.S. 7B-911) of the older child to family friend with one hour of supervised visits per week with mother.  Mother appeals the disposition orders.
  • Findings of Fact: The standard of review is whether the findings are supported by competent evidence. Findings based on competent evidence are binding even when there is evidence that would support a contrary finding. Here, the challenged findings were not supported by competent evidence.
    • The finding that the family friend’s home is safe, suitable, and appropriate is not supported by the evidence, which consists of the children having toys that a child desires including a four-wheeler or ATV and video games. Having what one desires is not necessarily in the best interests of the child. There is no evidence regarding substantive information about the home or care of the children.
    • The finding that it is not likely the child will be returned home within the next 6 months and placement with the parent is not in the older juvenile’s best interests is not supported by the evidence. The evidence showed mother did everything required of her.
    • Findings related to conditions which led to the child’s removal still exist, a return home is contrary to the child’s welfare, and mother is not a fit and proper person are not supported by the evidence. The evidence showed that by the disposition hearing mother and boyfriend had fully complied with the family services agreement and DSS recommendations. There was no evidence that the conditions leading to the removal still existed other than the older child wished to remain with family friend. Custody to a third party requires that the parent is unfit or has acted inconsistently with her constitutionally protected rights and cannot be based on a child’s preference or the material advantages a third party may offer the child. There were no findings and no evidence that mother acted inconsistently with her parental rights.
  • Conclusion of Law of Child’s Best Interests: A conclusion of law must be supported by findings. A determination of best interests is reviewed for an abuse of discretion. Conclusions of law are reviewed de novo. Best interests findings include characteristics of the parties competing for custody and may concern physical, mental, or financial fitness or other relevant factors and are more than mere conclusions. See Hunt v. Hunt, 112 N.C. App. 722 (1993). Here, the findings cannot support the conclusion of law regarding the child’s best interests as the evidence does not support the findings.
Abuse, Neglect, Dependency
Disposition (All Stages Post-Adjudication)
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