In re M.T.-L.Y., 265 N.C. App. 454 (2019)

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Held:

Affirmed in Part; Vacated in Part; and Remanded

Facts: An infant was adjudicated neglected. At disposition, the child was placed in DSS custody. At the dispositional hearings (this author believes those hearings were the initial dispositional and then a review hearing), the court ordered as conditions of reunification that mother abstain from alcohol or drugs, submit to drug testing as requested by DSS, have a psychological evaluation, enter into a family services agreement for reunification, complete parenting classes, attend her two weekly supervised visits, confirm her employment and wages, notify DSS within 24 hours of any change in her employment or household status, participate in the child’s medical appointments, and maintain regular communication with DSS. At the first permanency planning hearing, mother did not appear but was represented by her attorney. The court found that mother did not comply with her court-ordered conditions and that there was slim likelihood of reunification, mother failed to make adequate progress within a reasonable period of time, was not available to the court, and acted inconsistently with the child’s health and safety. The court ordered (1) DSS cease reunification efforts and (2) a primary permanent plan of adoption and secondary plan of guardianship. (“PPO”). DSS filed a motion to TPR, which was granted. Mother appeals the TPR and as part of that appeal, the PPO.
Reunification as a Permanent Plan: At the permanency planning stage involving a neglected juvenile, the court must adopt concurrent permanent plans, designating a primary and secondary plan. When determining which plans to order, reunification is addressed in G.S. 7B-906.2(b). Although that statutory language seems to plainly allow the trial court to omit reunification as permanent plan in any permanency planning hearing (PPH), this court is bound by In re C.P., 812 S.E.2d 188 (2018). C.P. held the trial court may remove reunification as a concurrent plan in “subsequent” PPHs and not the initial PPH. Bound by that holding, the trial court erred in removing reunification as a concurrent plan in the first and only PPH. The PPO and TPR are vacated.
Reunification Efforts Ceasing: Before In re C.P., the court of appeals held in In re H.L., 807 S.E.2d 685 (2017), that reunification efforts could be ceased at the first permanency planning hearing if the required findings of G.S. 7B-906.2(b) were made. Although In re C.P. believed the trial court is prohibited from ceasing reunification efforts at the first PPH, it recognized it was bound by the prior holding of In re H.L. The standard of review of an order ceasing reunification efforts is whether the trial court made appropriate finding based on credible evidence; whether the findings support the conclusions; and whether the court abused its discretion with respect to disposition. The court’s findings are not contradictory. “[P]artially performing a required condition does not necessarily preclude a conclusion that the performance is inadequate”. Sl. Op. at 22. The findings are sufficient and are based on evidence that mother failed to verify her participation in substance abuse treatment, her employment and her living arrangements with DSS; did not comply with the family services agreement, visitation schedule, drug testing, or attendance at her child’s medical appointments; violated the safety plan; and tested positive for drugs. Although the court did not use the statutory language in G.S. 7B-906.2(b) that reunification efforts clearly would be unsuccessful or inconsistent with the juvenile’s health and safety, the findings address the statute’s concerns. See In re L.M.T., 367 N.C. 165 (2013).
Reservations about In re C.P. are based on the statutory language in G.S. 7B- 906.2(c) and 7B-906.1(d)(3), which was not examined in C.P. Those statutes seem to contradict the interpretation of G.S. 7B-906.2(b) in C.P. Additionally, the holding of C.P. raises more questions than answers, affecting “what ‘efforts’ social services must perform [under G.S. 7B-906.2(b)] when reunification efforts have been ceased but reunification is still included in a permanent plan” (Sl. Op. at 18); rights (or lack thereof) to appeal an order ceasing reunification efforts but keeping reunification as a permanent plan; and creating a dichotomy between reunification and reunification efforts as opposed to keeping them as a unitary concept. “To avoid confusion of our DSS workers and trial courts and to promote permanency for children in these cases, we encourage the North Carolina General Assembly to amend these statutes to clarify their limitations.” Sl. Op. at 19.