In re B.C.T., ___ N.C. App. ___, 828 S.E.2d 50 (2019)

Held: 
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.             
  • Swapping Horses: At trial, DSS recommended the younger child be returned to mother’s custody. The court is not required to, and did not, follow DSS recommendations. On appeal of that disposition order, DSS argued the order should be affirmed. DSS is not exempt from the rule that “parties are not allowed to make different arguments on appeal than before the trial court to ‘swap horses between courts in order to get a better mount.’ ” Sl. Op. at 24. “DSS is not obligated to adopt a different position on appeal just to oppose the appealing parent if it has previously determined the parent has a safe and appropriate home and the child should be returned to the parent.” Sl. Op. at 25.
Category:
Abuse, Neglect, Dependency
Stage:
Appeal
Topic:
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