In re K.C., 288 N.C. App. 543 (2023)
Stay granted
(Stay denied as moot) writ of supersedeas granted June 8, 2023
Held:
Vacated
There is a dissent
by Carpenter, J.
- Facts: DSS filed a neglect petition based on circumstances related to mother’s substance use, mental health, domestic violence, and housing issues. Parents and DSS agreed to a safety plan where the juvenile would reside with father, who was the non-removal parent. DSS did not seek nonsecure custody. After the juvenile was adjudicated neglected, the court held the initial dispositional hearing. The court ordered temporary custody to a parental aunt and uncle, which is the first time the court contemplated removing the juvenile from her father. The court determined father acted inconsistently with his parental rights. Father was ordered to comply with a case plan and received 3 hours a week of unsupervised visitation. Father appeals.
- A determination that a parent acted inconsistently with their parental rights is a conclusion of law that is reviewed de novo.
- The findings are that father temporarily had the juvenile stay with his sister and husband (aunt and uncle). In those 3 months, father visited with the child. The child returned to father’s home, which is also the home of his mother and aunt who assisted with childcare. Father was arrested and DSS discovered father has an extensive criminal history. Some findings of fact addressed socioeconomic factors, which are irrelevant to whether a parent has acted inconsistently with their parental rights and are not considered by the appellate court. They are relevant to a best interests determination. These findings include father living with his mother, moving frequently, the house was not clean, and a history of unstable employment.
- While the juvenile was in father’s care for approximately 15 months, DSS did not seek nonsecure custody and reported that the child was doing well, father was meeting her needs, is utilizing family supports, and is providing a safe home. DSS recommended placement with the aunt and uncle.
- The temporary time the child lived with her aunt and uncle does not undermine father’s constitutional protected status. Viewing father’s conduct cumulatively, having support from family to care for the child, taking the child with him when he worked, having past criminal convictions, and having a domestic violence charged is not a forfeiture of father’s constitutionally protected status. The petition does not contain any allegations that father neglected his child, was unfit, or acted inconsistently with his parental rights. Father’s constitutional rights remain.
- Dissent: At initial disposition, the court does not need to address whether father acted inconsistently with his parental rights when awarding temporary custody. This conclusion is only required when permanent custody is being ordered. The standard of review should have been an abuse of discretion of the initial disposition and not a de novo review of a conclusion of law that was premature and unnecessary. The court did not abuse its discretion when awarding temporary custody to relatives based on the child’s best interests.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights