In re J.L., ___ N.C. App. ___, 826 S.E.2d 258 (2019)

Held: 
Affirmed in Part
Vacated and Remanded in Part
  • Facts: After filing a petition alleging neglect and dependency, DSS obtained nonsecure custody of a newborn and placed the child with Mr. and Mrs. C (foster parents). After adjudication, the initial disposition continued custody with DSS, who continued the child’s placement with Mr. and Mrs. C. In a permanency planning order, custody with DSS continued (as did DSS’s placement with Mr. and Mrs. C); reunification efforts with mom were ceased; and a primary plan of guardianship with a court-approved caretaker and secondary plan of adoption was ordered. Mother’s visitation was ordered for one hour of supervised visits/month. At a subsequent permanency planning hearing, DSS and the GAL recommended a change in placement to foster parents who had adopted two of the child’s older half-siblings. Although not parties, Mr. and Mrs. C as the current placement provider testified, and the court permitted their counsel to facilitate their testimony on direct examination. Two experts testified. The expert procured by Mr. and Mrs. C and called by the child’s GAL attorney advocate was directly examined by Mr. and Mrs. C’s counsel. The permanency planning order awarded guardianship to Mr. and Mrs. C. and ordered that mom have no in-person visits with the child but could have telephonic communication that was monitored by Mr. and Mrs. C. Respondent mother appeals.
  • Visitation.
    • When awarding guardianship, a determination that the following rights and responsibilities remain with mother -   inheritance, financial responsibility, and visitation -  is a conclusion of law. That conclusion of law is not inconsistent with a provision for no visitation but for monitored telephonic communication. The court determines the scope and duration of visitation that is in the child’s best interests and consistent with his health and safety. A review of an order denying visitation is for an abuse of discretion. There was no abuse of discretion. The court’s ultimate finding that visitation was not in the child’s best interests and consistent with his health and safety was supported by evidentiary findings of mother’s (1) long CPS history resulting in the removal of her other children with the same issues identified for this child, (2) minimal participation in services to resolves the issues, (3) failure to attend visits, and (4) executed relinquishment of the child.
    • G.S. 7B-905.1(d) requires that “if the court retains jurisdiction, all parties shall be informed of the right to file a motion for review of any visitation plan entered…” Neither the order nor transcript review indicate the court notified mother of her right to file a motion for review of the visitation plan. Vacated and remanded for compliance with G.S. 7B-905.1(d).

 

Category:
Abuse, Neglect, Dependency
Stage:
Visitation
Topic:
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