In re C.T.

1

IN THE MATTER OF: C.T., C.T., C.T., C.T.

No. COA22-843

Court of Appeals of North Carolina

July 5, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 16 June 2023.

Appeal by respondents from order entered 14 July 2022 by Judge Micah J. Sanderson in Lincoln County District Court Nos. 20 JA 22-25

R Scott Hudson for petitioner-appellee Lincoln County Department of Social Services.

Brooks, Pierce, McLendon, Humphrey &Leonard, L.L.P., by Daniel F.E. Smith for the guardian ad litem.

Richard Croutharmel for respondent-appellant father.

Freedman Thompson Witt Ceberio &Byrd PLLC, by Christopher M. Watford for respondent-appellant mother.

TYSON Judge.

Respondents, the parents of C.R'M.T. ("Megan"), C.L.T. ("Colin"), C.R.T. ("Rachel"), and C.W.T. ("Will"), appeal from a permanency planning order that awarded legal guardianship of Megan and Colin to their respective foster parents and awarded legal guardianship of Rachel and Will to respondent-father's aunt and her husband. See N.C. R. App. P. 42(b) (pseudonyms used to protect the identities of the juveniles). We vacate the order and remand for further proceedings.

I. Background

Lincoln County Department of Social Services ("DSS") has been involved with the family dating back to July 2016 due to concerns of neglect, improper supervision, substance abuse, injurious environment, and domestic violence. DSS became reinvolved with the family in November 2019 after receiving a Child Protective Services ("CPS") report asserting: an injurious environment due to the negligent treatment of a child during an altercation between Respondents; substance abuse by respondentmother; and, domestic violence. At that time, Will was six years old, Rachel was four-and-a-half years old, Colin was one-and-a-half years old, and Respondent-mother was pregnant with Megan.

Between November 2019 and January 2020, DSS placed Respondents on numerous safety plans directed at keeping Respondent-mother from being in Respondent-father's home with the children. Despite the safety plans, DSS repeatedly discovered Respondent-mother in the home with the children while Respondent-father was away. DSS also received reports of Respondent-mother's substance abuse, including assertions that Respondent-mother had been arrested in South Carolina in December 2019 for possession of methamphetamine and cocaine, and of domestic altercations between Respondents in the presence of the children.

In January 2020, Respondent-mother gave birth to Megan. Hospital staff reported Respondent-mother had behaved as if she was under the influence. A blood screen of the umbilical cord was positive for Subutex, Subutex metabolites, amphetamines, and methamphetamines. Respondent-mother admitted she had used methamphetamine and may have taken Adderall during her pregnancy. Though Megan exhibited withdrawal symptoms, which necessitated her admission to the NICU, Respondents minimized her symptoms and refused treatment, exacerbating her symptoms.

Respondent-father became angry and aggressive with hospital staff and DSS because he was not allowed to take Megan home and was banned from the birthing center. Megan was eventually discharged on 18 January 2020 with a directive that Respondents return for a follow-up appointment in forty-eight hours. Respondents attended the follow-up appointment, but they did not continue Megan's treatment thereafter.

DSS scheduled Respondent-mother to attend a substance abuse assessment as part of a January 2020 safety plan. Respondent-mother's assessment revealed unusually high levels for prescribed Buprenorphine and Norbuprenorphine. She was recommended to complete a Substance Abuse Intensive Outpatient Program and eight weeks of follow-up care. Respondent-mother did not complete these recommendations. In late February 2020, DSS again discovered Respondent-mother in Respondent-father's home while he was away, in violation of safety plans.

DSS filed a series of petitions between March 2020 and May 2020 alleging the children were neglected and dependent. DSS first filed petitions alleging Will, Rachel, and Colin were neglected and dependent and obtained nonsecure custody of the children on 2 March 2020. DSS filed additional petitions on 24 March 2022, alleging Will, Rachel, Colin, and Megan were neglected and dependent, but filed a voluntary dismissal of those petitions on 26 March 2022. DSS filed an "amended" petition alleging all four children were neglected and dependent. DSS later filed "second amended" petitions alleging all four children were neglected and dependent on 19 May 2020.

The juvenile petitions were heard together on 23 June 2020. On 15 July 2020, the trial court entered a "Consolidated Order of Adjudication and Disposition" adjudicating all children neglected. Both Respondents were ordered to complete mental health, domestic violence, and substance abuse assessments and follow recommendations; complete parenting classes; and sign releases of information to DSS.

Respondent-father was additionally ordered to complete a parental fitness evaluation and to follow recommendations. Respondent-mother was separately ordered to actively engage in a substance abuse program and to immediately comply with any drug screens requested by DSS. The court allowed Respondent-father to have ninety minutes of weekly visitation with Will, Rachel, and Colin at their placements and with Megan at DSS. Respondent-mother was granted ninety minutes of weekly supervised visitation with each child at DSS.

The trial court conducted routine permanency planning hearings throughout the case. The court's findings from the hearings generally provide Respondentmother failed to make substantial progress on her case plan, and Respondent-father, while completing a substantial portion of his case plan, did not complete approved anger management classes, did not demonstrate a change in his behaviors, and did not recognize the impact on the children of Respondent-mother's substance abuse. The court changed the primary plan for the children to adoption following a permanency planning hearing on 6 April 2021. The court changed the primary plan for the children to guardianship at Respondents' request at the next permanency planning hearing on 25 May 2021.

As Respondent-father continued to make progress on his case plan and reported no longer living with Respondent-mother, the court gradually increased his visitation with the children to unsupervised visits in the community following a hearing on 29 June 2021 and to weekend overnight visits following a hearing on 27 July 2021, on the condition Respondent-mother would not be present during visits. Despite a brief period where overnight visits were suspended due to concerns Respondent-mother was living with Respondent-father and was present during the children's visits, Respondent-father's weekend overnight visits with the children continued until 23 March 2022, when DSS filed a motion to suspend visitation following a threatening phone call between Respondent-father and DSS, in which Respondent-father made "statements constitut[ing] an imminent threat of mass violence towards [DSS] and all other parties involved in this case."

That phone call occurred the day after a 22 March 2022 permanency planning hearing at which concerns were raised Respondent-father was facing eviction and did not have adequate plans for future housing. Respondent-mother had given birth to a baby in October 2021. Respondent-father was suspected to be the putative father, and his paternity of the newborn would refute his assertions they were no longer in a relationship. Upon learning of the newborn, the court ordered paternity testing and ordered if Respondent-father's paternity was established, his visitation with the children would revert to two hours of weekly supervised visitation at DSS.

On 24 March 2022, the trial court suspended Respondent-father's visits until it could fully review the matter. Following a hearing on 29 March 2022, the court found Respondent-father had threatened physical violence out of frustration, but he was remorseful and would follow court orders. The trial court re-instated ninety minutes of weekly supervised visitation at DSS.

A permanency planning hearing was held on 31 May 2022. DSS and the GAL recommended to the court to proceed with guardianship for the children. The trial court entered a permanency planning order on 14 July 2022, which granted legal guardianship of the children, concluding Respondents "have waived their paramount constitutional rights to care, custody[,] and control of the Minor Children because they have neglected the Minor Children's welfare and are acting inconsistently with their constitutionally protected status[,]" and "[t]hat it is in the best interests of the Minor Children that guardianship be granted[.]" Guardianship of Megan and Colin was granted to their respective foster parents, and guardianship of Rachel and Will was granted to Respondent-father's aunt and her husband. Respondents appeal.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B-1001(a)(4) (2021). Challenges to the trial court's subject matter jurisdiction may be raised at any stage of a juvenile proceeding, even for the first time on appeal. In re M.R.J., 378 N.C. 648, 654, 862 S.E.2d 639, 643 (2021). Whether the trial court possesses subject matter jurisdiction is a question of law subject to de novo review. Id.

III. Issues

Respondents raise the same three arguments...