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

for further proceedings

• Facts: Child is adjudicated abused and neglected. Respondent mother pleads guilty to misdemeanor child abuse related to same incident in the abuse/neglect proceeding. At a second permanency planning hearing, custody is ordered to the foster parents and further reviews are waived. Respondent mother appeals, challenging that the findings to cease reunification efforts were not support by clear, cogent, and convincing evidence.
• Standard of review of an order ceasing reunification efforts is whether the trial court made appropriate findings, whether the findings are based on credible evidence and support the conclusions of law, and whether the trial court abused its discretion when ordering the disposition.
• An order effectively ceases reunification efforts when it awards permanent custody to a non-parent (in this case foster parent), eliminates reunification as a permanent plan, waives further review hearings, and releases the attorneys for the parties and the child’s GAL.
• The court may cease reunification efforts at permanency planning after making findings under
  • G.S. 7B-906.2(b) that those efforts clearly would be unsuccessful or inconsistent with the child’s health and safety and
  • G.S. 7B-906.2(d)(1)-(4), which demonstrate lack of success.
• Here the court failed to make the G.S. 7B-906.2(d)(4) and G.S. 7B-906.2(b) findings. A finding that “the home remains an injurious environment” and “a return home would be contrary to the best interests of the juvenile” are not a finding that reunification efforts would be unsuccessful or inconsistent with the child’s health and safety.
• “All findings must be supported by clear, cogent, and convincing evidence.”
  • Author’s Note:  It is unclear to this author whether this statement applies to the findings required under G.S. 7B-906.2(b) and (d) as no statutory or case citation was referenced and In re L.M.T., 367 N.C. 165, 180 (2013) states there is no burden of proof in a permanency planning hearing and “the trial court’s findings of fact need only be supported by sufficient competent evidence.” This appeal does involve a separate challenge by respondent father on the issue of whether he was unfit or acted inconsistently with his constitutionally protected parental rights such that custody could be awarded to a non-parent. Father’s appeal was remanded for findings on that issue, and case law has established clear and convincing evidence as the standard when determining whether a parent’s conduct is inconsistent with his/her constitutionally protected status.