In re B.R.W.

278 N.C.App. 382

863 S.E.2d 202

In the MATTER OF: B.R.W., B.G.W.

No. COA20-675

Court of Appeals of North Carolina.

Filed July 20, 2021

James N. Freeman, Jr., Elkin, for petitioner-appellee.

J. Thomas Diepenbrock, Asheville, for respondent-appellant-mother.

Paul W. Freeman, Jr., Wilkesboro, for Guardian ad Litem.

STROUD, Chief Judge.

¶ 1 Mother appeals a permanency planning review order awarding guardianship of her daughters to their paternal grandmother. Mother argues that the trial court's determination that she was unfit and acted in a manner inconsistent with her constitutionally protected status was not supported by clear and convincing evidence and, therefore, the trial court erred by applying the "best interest of the child" standard in its custody determination. Mother also challenges the evidentiary support for several of the trial court's findings of fact and conclusions of law.

¶ 2 Because the trial court's determination that Mother acted in a manner inconsistent with her constitutionally protected status was supported by clear and convincing evidence, making the "best interest of the child" standard applicable, we affirm that portion of the permanency planning order. The trial court's determination that Mother was unfit, however, was not supported by clear and convincing evidence, and we reverse that portion of the order.

I. Background

¶ 3 On 1 May 2018, the Yadkin County Human Services Agency ("DSS") received a Child Protective Services report alleging that Brittany and Brianna,¹ ages four and seven at the time, were at home when their intoxicated father ("Father") began "busting plates and throwing glasses[.]" Brittany and Brianna lived in a house with Father, Father's mother ("Grandmother"), and Father's grandmother ("Great Grandmother").

Grandmother removed Brittany and Brianna from the house and called law enforcement. Father² was arrested, cited for a probation violation, charged with resisting a public officer and drunk and disorderly conduct, and scheduled to appear in court on 27 June 2018. On 14 June 2018, DSS filed a juvenile petition alleging that Brittany and Brianna were neglected juveniles in that they "live[d] in an environment injurious to [their] welfare." The trial court approved the children's relative placement with Grandmother and Great Grandmother.

¶ 4 Following a 25 June 2018 hearing, the trial court entered an order finding that Mother lived in Alexander County with her husband ("Stepfather"), who had "an extensive criminal history including drug-related convictions, assault on a female, larceny, and multiple DWIs." Following her separation from Father in 2015, Mother had "occasionally visited" with her daughters at Father's home or family gatherings, but the court found that Mother had "not made decisions regarding the minor children's education or welfare, contributed financially to their support and maintenance, or otherwise filled the role of parent/caretaker of the minor children[.]"

The trial court directed DSS to coordinate with Alexander County to conduct a home study on Mother's home in order "to assess whether it is a suitable and appropriate placement for the minor children" and awarded "bi-weekly visitation, lasting at least one hour per visit, contingent upon the parents not being incarcerated."

¶ 5 On 13 July 2018, Mother and Stepfather each entered an Out of Home Family Services Agreement ("OHFSA") with DSS which required: completion of psychological assessments and any resulting recommendations; participation in substance abuse assessments and any resulting recommendations; submission to random drug screens; completion of a parenting education program; and demonstration of stable employment.

¶ 6 On 31 August 2018, the trial court entered an Adjudication and Dispositional Order which adjudicated the children neglected. The written order found that Mother and Stepfather had been participating in biweekly telephone conversations and had visited with the children on "multiple" occasions. Although the trial court noted "the fact that a significant period of time ha[d] elapsed since [Mother] ha[d] been involved in the lives of the minor children on a regular basis[,]" the court found that Mother still appeared to have "some bond" with her daughters. Mother was given "a minimum of biweekly visitation, for at least one hour per visit ... with [DSS] having the discretion to increase the duration and frequency of visitation." The trial court established a primary permanent plan of reunification and a secondary plan of guardianship.

¶ 7 Mother informed the Alexander County Department of Social Services on 16 August 2019 "that her landlord [was] selling their mobile home and they [were] going to be forced to move. She stated, ‘I don't know how we are going to do this’ in regards [sic] to completing the home study." Subsequently, citing concerns regarding the lack of stable housing and Stepfather's criminal history, the Alexander County Department of Social Services denied Mother and Stepfather's home study on 29 August 2018.

¶ 8 In a 90 Day Review Order entered on 6 December 2018, the trial court found that Mother was in compliance with many requirements of her OHFSA: she was employed, had access to transportation, found a temporary residence in Thurmond, North Carolina, maintained regular contact with DSS, submitted to random drug screens at DSS's request, and completed a psychological evaluation. However, Mother had "not completed a substance abuse assessment" or "a parenting education program[.]" Stepfather had completed a psychological assessment and was "regularly attending visitation" with the children, maintaining communication with DSS, and submitting to random drug screens, but the trial court found that Stepfather was not employed "due to a back injury" and, like Mother, had not completed a substance abuse assessment or a parenting education program. Finding that Mother "consistently visited" with her daughters, the trial court awarded Mother "a minimum of biweekly visitation, for at least one hour per visit ... with [DSS] having the discretion to increase the duration and frequency of visitation and to allow unsupervised visitation." The permanent plan remained reunification with a secondary plan of guardianship.

¶ 9 Prior to the 16 May 2019 permanency planning hearing, DSS filed a report noting that Mother had "been working diligently on her OHFSA" and Stepfather had "made substantial progress on his OHFSA[.]" The DSS report indicated that Mother and Stepfather had been participating in unsupervised visitation with the children on Sundays from 12:00 p.m. to 6:00 p.m. and had been taking the children to church on the last Sunday of each month. Mother was in compliance with the terms of her child support order and "ha[d] sent extra money to pay down her arrears on her own." Noting that Mother and Stepfather had made "substantial progress" on their respective OHFSAs, DSS recommended the children remain in their placement with Grandmother and Great Grandmother, as "[p]arenting classes need to be completed and the home is not yet ready to house the children." DSS recommended that "overnight visits [with Mother and Stepfather] begin at the discretion of the agency[.]"

¶ 10 In a report revised on 3 May 2019, the guardian ad litem ("GAL") reported that she witnessed Stepfather "become increasingly angry" with social workers before "storming out mad" and demanding Mother follow at a 26 April 2019 Child and Family Team meeting. The GAL expressed her "extreme ... concern ... about the safety of the girls, as well as [Mother] after this display" as well as her concern

that a primary desire for [Mother] and Stepfather ... for gaining custody of the girls involves regaining the multiple $thousands [sic] tax refund that comes along with them. When [Mother] left 3 years ago, she threatened [G]randmother ... that she would take the girls if [Father] and [Grandmother] didn't allow her and [S]tepfather to claim the girls for tax refunds even though they did not live with them. This went on for 3 years prior to the current [DSS] issue. This was the first year [Mother] and Stepfather did not receive that money. Grandmother ... told GAL she only cares about keeping peace and making sure the girls are safe.

The GAL recommended Stepfather be assessed for "domestic violence and anger issues" and Mother "be assessed for effects of domestic violence."

¶ 11 On 16 July 2019, the trial court entered a permanency planning order finding that Mother and Stepfather's home in Thurmond was "safe and appropriate for the minor children." The court found Mother was an "active participant" in her parenting classes and her parenting educator reported that she was "implementing the lessons she [was] learning during her interactions with the minor children." Mother's visitation remained unchanged except that DSS was "given the discretion to implement overnight visitation[,]" and the primary plan remained reunification with a secondary plan of guardianship. The trial court directed Mother and Stepfather to participate in domestic violence assessments.

¶ 12 On 13 July 2019, the children began overnight visitation with Mother at Stepfather's mother's two-bedroom house. The GAL reported that Mother and the children slept in one bedroom, Stepfather's mother slept in one bedroom, Stepfather slept on the recliner in the living room, and Stepfather's uncle slept on the couch. DSS reported that Mother had "completed all objectives on her OHFSA[,]" and "recommended that a Trial Home Placement begin immediately" with Mother and Stepfather.

DSS recommended a primary plan of reunification with a concurrent plan of guardianship.

¶ 13 On 23 August 2019, the doctor who conducted the anger and domestic violence assessments on Mother and Stepfather wrote "after a very extensive domestic violence evaluation of both individuals and an anger management assessment of the husband plus having interviewed the couple separately and...