In re D.A., 258 N.C. App. 247 (2018)

for a new hearing

• Facts: Child is adjudicated abused and neglected. Respondent mother pleads guilty to misdemeanor child abuse related to same incident in the abuse/neglect proceeding. Criminal charges against respondent father are dismissed. At a second permanency planning hearing, custody is ordered to the foster parents and further reviews are waived. Respondent father appeals, challenging findings and conclusion that he acted inconsistently with his constitutionally protected status as a parent.
• Before ordering custody to a non-parent, there must be clear and convincing evidence and a finding that a parent is unfit or has acted inconsistently with his or constitutionally protected status as a parent. This finding applies to a permanent custody order, even when custody is transferred from a non-parent (in this case DSS) to a different non-parent (in this case the foster parents).
• The appellate court reviews de novo whether that conduct is inconsistent with the parent’s constitutionally protected status. The trial court’s findings were insufficient to support the conclusion that respondent father acted inconsistently with his protected status as a parent as the findings do not address how the father is unfit or acted inconsistently with his parental rights. Distinguishing the case from In re Y.Y.E.T., 205 N.C. App. 120 (2010), there were no findings that the child’s injuries were non-accidental or that the mother and father were the sole caregivers when the non-accidental injuries were sustained and were jointly and individually responsible. The findings suggest the trial court intended to hold both parents responsible or that mother caused the injuries and do not explain how father was culpable for the injuries, unfit, or acted inconsistently with his constitutionally protected status.