In re I.K., 273 N.C. App. 37 (2020), aff'd 2021-NCSC-60
Held:
Affirmed
There is a dissent.
- Facts and Procedural History: Two children were adjudicated dependent due to circumstances related to unstable housing, substance abuse, and domestic violence in the home. A 2017 permanency planning order that awarded guardianship of the children to their grandmother and eliminated reunification was appealed. The court of appeals vacated and remanded that permanency planning order to address respondents’ constitutional rights to care, custody, and control of their children before applying the best interests of the child standard in granting guardianship. On remand, the court awarded guardianship of one child to the grandmother, and that order was not appealed. Later, after hearing, the court awarded guardianship of the other child to grandmother. Visitation of a minimum of one hour/week, supervised, with discretion to the guardian to allow for additional visitation was ordered. Respondents appeal that order.
- A parent acting inconsistently with their constitutionally protected paramount status must be supported by clear and convincing evidence. The determination is not a bright-line test but is instead fact-specific and is based on the parent’s conduct and intention toward the child. The totality of the circumstances in the case support the determination that the parents acted inconsistently with their constitutional rights.
- The findings are supported by clear and convincing evidence, and the findings support the conclusion that the parents acted inconsistently with their constitutionally protected rights.
- Housing: The findings describe a cluttered (hoarding), crowded (parents living with one of their parents and their infant), dilapidated (holes in the floor) trailer and were supported by testimony and reports. The trial court gave more credibility to those reports and testimony when determining the day to day living conditions in the home than mother’s photographic evidence of recent improvements. Credibility and weight of the evidence determinations are the role of the trial court and not the appellate court.
- Domestic violence and substance abuse: Evidence of father’s verbal aggression toward his mother, mother’s drug seeking behavior, and both parents marijuana use support the court’s findings that the issues with domestic violence and substance abuse have not been satisfactorily resolved.
- Visitation orders are reviewed for an abuse of discretion. There was no abuse of discretion and the order complied with G.S. 7B-905.1(c) and (d).
- Dissent: Competent evidence does not support the findings re: housing, domestic violence, and substance abuse. Findings do not support conclusion of father acting inconsistently with his parental rights (but do support conclusion regarding mother).
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights