In re B.R.W., 278 N.C. App. 382 (2021), aff'd 381 N.C. 61 (2022)

Affirmed in Part
Reversed in Part
There is a dissent
in part, concur in part; separate concurrence
  • Facts: In 2018, DSS became involved with the family and the juveniles were adjudicated neglected. Circumstances were created by father’s violent behaviors, which were in the home the juveniles lived in with father and paternal grandmother. Prior to DSS involvement, starting in 2015, mother left the juveniles with grandmother. Mother had not been involved with the children on a regular basis prior to entering a case plan with DSS after the children were removed from father’s home. Despite the lack of mother’s involvement with the children, she declared them as dependent for IRS tax purposes. Mother complied with her case plan and obtained unsupervised overnight visits. Mother’s sole issue to be resolved in her case plan was obtaining appropriate housing for the children; her current home was overcrowded. At prior permanency planning hearing, DSS recommended reunification with mother, and the children’s GAL recommended otherwise. At the last permanency planning hearing, DSS and the GAL recommended permanent guardianship to the paternal grandmother, which was ordered after the court found mother was unfit and acted inconsistently with her constitutional rights. Mother appeals, challenging findings were not supported by clear and convincing evidence and a misapplication of the law.
  • Standard of review: A permanency planning order must have competent evidence in the record to support the findings, and the findings must support the conclusion. Conclusions of law are reviewed de novo. The conclusion that a parent acted inconsistently with their parental rights or is unfit is reviewed de novo.
  • The findings were supported by competent evidence as “the trial court is the sole judge of the weight and credibility of the evidence, and even if there is contrary evidence [a prior DSS report], the trial court’s finding is supported by the evidence presented by the GAL, as well as by other evidence regarding Mother and Stepfather.” 278 N.C. App. at 393.
    • The children expressed their preferences to live with grandmother and displayed adjustment issues at school after overnight weekend visits with their mother. A trial court may consider a child’s preference, although their preference is not controlling since the court determines the child’s best interests.
  • Acting inconsistently with constitutional rights and a parent’s unfitness are two separate determinations and are reviewed independently. For both, the determination must be made by clear and convincing evidence. In some cases, a parent’s acting inconsistently may include unfitness (e.g., abuse or neglect), but not all cases involve both elements. A parent may act inconsistently with parental rights without also being unfit. The determination is examined on a case-by-case basis.
  • Acting inconsistently with constitutional rights:  “[A] parent may cede her constitutionally protected status to another by leaving her child in that persons care.” 278 N.C. App. at 401. For example, when a parent voluntarily allows the child to reside with a non-parent and allows that non-parent to support and make decisions for the child’s care and education, and “continuing this condition of affairs for so long a time that the love and affection of the child and [non-parent] have become mutually engaged, to the extent that a severance of this relationship would tear the heart of the child, and mar his happiness[.]” Id. The court looks at the parent’s intentions and conduct about the relationship between the child and non-parent.
    • Here, the children resided with their grandmother since birth (2015) after mom left to find stable housing. Although mom obtained stable housing in 2017, she did not make an effort to change the children’s living situation until DSS got involved in 2018. Prior to DSS involvement, mother rarely called the children, saw them, or inquired about them. Grandmother made all parental decisions and supported both children. Mother’s lack of involvement with the children prior to DSS involvement was once of the circumstances resulting in the juveniles neglect adjudication. The trial court properly considered the 3 years prior to DSS involvement when determining whether mother acted inconsistently with her constitutional rights. Mother left her children with grandmother for an indefinite period of time without showing any intention that it was temporary.
  • Parent’s unfitness: The findings about mother’s compliance with her case plan, which included completed parenting classes, a domestic violence assessment, negative random drug screens, unsupervised visitation, obtaining suitable housing just before the permanency planning hearing, and making adequate progress within a reasonable period of time do not support a determination that mother was unfit. Because the court properly determined mother acted inconsistently with her parental rights, the court did not err in awarding guardianship to grandmother.
  • Mother preserved this issue for appeal, complying with Appellate Rule 10, and did not waive it. Constitutional issues may be waived if not raised before the trial court. Here, mother presented evidence and argued against an order of guardianship and instead sought reunification and a trial home placement. A parent can object to the introduction of evidence, but findings of fact are not evidence, and parties cannot object to a rendition of an order. Mother had the opportunity and did raise the issue at the hearing when she presented her evidence and request for reunification and trial home placement. Mother had no other opportunity to object to the court’s findings and rulings at the hearing, and it would not have been proper.
  • Eliminating reunification: A parent’s compliance with a case plan “does not automatically lead to a conclusion that the conditions which led to the removal do not exist.” 278 N.C. App. at 407. Trial court’s conclusions were supported by findings of fact and the court reviewed the required factors.
  • Concurrence: The court of appeals could benefit from the supreme court resolving a conflict between this opinion and In re C.P., 258 N.C. App. 241 (2018) about when a parent must raise and preserve the constitutional issue at the trial court.
  • Dissent in part: The findings do not support the conclusion that placement of the children in mother’s home is contrary to the children’s health, safety, welfare, and best interests and conditions leading to the children’s removal continue to exist. The children were never removed from mother’s home; mother completed her case plan. Further, the findings were insufficient to support the determination that mother acted inconsistently with her constitutional rights. Since 2018, mother was making consistent progress, and ignoring a parent’s compliance with a case plan would discourage parents and will be detrimental to the success of the DSS program. There may be evidence in the record to make sufficient findings and so vacate and remand should be the remedy.
Abuse, Neglect, Dependency
Disposition (All Stages Post-Adjudication)
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