In re N.Z.B., 278 N.C. App. 445 (2021)

Held: 
Vacated and Remanded
  • Facts:  The juvenile was adjudicated as a dependent juvenile. At a permanency planning hearing, the court determined the mother was unfit for care, custody, and control of the child and had acted inconsistently with her constitutional rights to care, custody, and control of her child. Guardianship was ordered to the paternal grandmother. Mother appealed, challenging the lack of an evidentiary standard applied to the court’s determination about mother’s constitutional rights as a parent and that the evidence did not support the conclusion. Mother also raised a UCCJEA argument.
  • Standard of review of whether a parent has acted inconsistently with their constitutionally protected status de novo.
  • The determination of a parent’s constitutionally protected status must be made by clear, cogent, and convincing evidence. There is not bright line rule for making that decision; instead, it requires a fact-specific inquiry by examining the parent’s conduct and intentions toward the child. The order did not state what standard was applied, nor did the court state the standard in open court. The case is vacated and remanded for the application of the clear and convincing standard. Because it is vacated, the appellate court declined to hear mother’s remaining arguments.
  • Author’s Note: Mother also challenged UCCJEA subject matter jurisdiction, which the appellate court did not address since it vacated the trial court’s permanency planning order. On remand, the district court should make findings addressing its jurisdiction under the UCCJEA. This opinion does not address the record re: UCCJEA jurisdiction. Note that the N.C. Supreme Court has held that the trial court is not required to make specific findings of fact showing it has jurisdiction under the UCCJEA so long as the record reflects that jurisdiction exists. See In re A.S.M.R., 375 N.C. 539 (2020); In re L.T., 374 N.C. 567 (2020).
Category:
Abuse, Neglect, Dependency
Stage:
Disposition (All Stages Post-Adjudication)
Topic:
Guardianship
Tags:
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constitutional rights
inconsistent with constitutional rights
clear and convincing