In re K.W., 272 N.C. App. 487 (2020)

  • Facts: DSS became involved after mother reported to the child’s therapist that the children were abused and neglected by their father when there were in his care (joint custody had been ordered under a G.S. Chapter 50 order). Mother made numerous reports of the children’s mistreatment by father to various professionals, including medical providers who were assessing the children for abuse, and law enforcement. All of mother’s allegations were false. The children would repeat mother’s false disclosures and the older child was fearful and anxious about seeing her father and was diagnosed with Generalized Anxiety Disorder. DSS filed a petition and obtained a nonsecure custody order where the children were placed with their father. Based on several inappropriate incidents involving mother and visitation, the court limited her visitation to electronic only. The court adjudicated the older juvenile abused and neglected and the younger juvenile neglected. At disposition, no new evidence was taken; mother was self-represented (with standby counsel), and after arguments were made the court ordered mother visitation remain the same but authorized DSS to allow for in-person visitation when she made progress on her case plan. Mother appeals the abuse adjudication and disposition.
  • G.S. 7B-905.1 allows the court to order no visitation to a parent if no visitation is in the child’s best interests. The standard of review is an abuse of discretion. The court found that the safety of the children required electronic visitation and only and relied on the findings in the adjudication order about mother causing distress for the children.  FN 2 refers to In re T.R.T., 225 N.C. App. 567 (2013) that held electronic visitation is not visitation.
  •  A visitation order that establishes a plan and allows DSS to expand visitation is not an abuse of discretion. Although the court may not delegate its authority to a custodian, here the discretion was not granted to a custodian but to DSS, which has been given significant discretion by the legislature under G.S. 7B-905.1(b) to manage visits. The order allows DSS to expand visits, not reduce it below the minimum visitation the court established in its order, and is not an impermissible delegation of its authority.
  • G.S. 7B-905.1(d) requires the court notify the parties of their right to motion for review of the visitation plan. No such notification was provided at hearing (after reviewing the transcript) or in the order. Remanded for compliance with G.S. 7B-905.1(d).
Abuse, Neglect, Dependency
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