In re M.S., 289 N.C. App. 127 (2023), superseding WL 3829185
Held:
Affirmed in Part; Vacated in Part; and Remanded
- Facts: DSS filed a neglect petition for the juveniles based on improper care and supervision and an injurious environment caused by domestic violence, substance use, amber alert notification, and prior TPR of other children based on sexual abuse. Prior to the adjudication hearing, the parents agreed to caseplans with DSS that included no contact between the parents, parenting classes, a comprehensive clinical assessment, for mother a domestic violence assessment and classes, and for father sex offender evaluation, drug screens, domestic violence batterer’s assessment, housing, and an employment search. At nonsecure custody, mother and father had one hour of supervised visits a week. Mother attended one visit where no concerns were raised. At the pre-adjudication hearing, no visits were ordered after the court found the children started to show sexualized behaviors and there was a prior TPR based on sexual abuse. The court held an adjudication hearing and adjudicated the children neglected. The court moved to the dispositional hearing. The children were ordered in DSS custody; reunification efforts with the parents were ceased based on prior TPR orders; no visitation was ordered; and a permanency planning hearing was scheduled within 30 days. Both parents appeal. This summary is about the disposition.
- G.S. 7B-901(c)(2) authorizes the cessation of reunification efforts when there has been a court order involuntarily terminating the parental rights of the parent to another child. The standard of review of an order ceasing reunification efforts under G.S. 7B-901(c) is reviewed for an abuse of discretion.
- The court ceased reunification efforts based on G.S. 7B-901(c)(2) and is not an abuse of discretion. Certified copies of the TPR petitions and orders were admitted to evidence. The court also found that mother and father did not follow components of their case plan.
- A visitation order is reviewed for an abuse of discretion. Visitation is addressed by G.S. 7B-905.1 when the child is placed outside the home.
- No visitation may be ordered when the court finds the parent forfeited their right to visitation or that denying visitation is in the child's best interests. Factors a court considers when denying visitation include whether the parent has a long history with DSS, if the issues causing the child's removal is related to issues that resulted in another child's removal, if the parent failed to or only minimally participated in their case plan, if the parent failed to attend current visits, and whether the parent relinquished their rights. Parents have a constitutional right to care, custody, and control of their children and the state must overcome the presumption that a parent will act in their child's best interests by proving the parent is unfit or has acted inconsistently with their constitutional parental rights. Not engaging in services may support but does not compel a finding that visitation is not in the child's best interests (health and safety). The court order does not address issues that arose during visitation or whether mother and father used their visitation rights. On remand, visitation may be denied only if there is a finding that the parent forfeited their right to visitation and it is in the child's best interests to deny visits.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Findings