In re I.K.

858 S.E.2d 607

In the MATTER OF: I.K.

No. 403A20

Supreme Court of North Carolina.

Filed June 11, 2021

Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee Orange County Department of Social Services.

Sean P. Vitrano, Wake Forest, Wake Forest, for respondent-appellant father.

BARRINGER, Justice.

¶ 1 Respondent is the biological father of I.K. (Iliana)¹ and appeals from the Court of Appeals decision affirming the trial court's permanency-planning order granting guardianship of Iliana to her maternal grandmother. Since we conclude that the trial court's findings of fact are supported by clear and convincing evidence and the findings of fact support the conclusion that respondent acted inconsistently with his constitutionally protected status as Iliana's parent, we affirm.

I. Factual and Procedural Background

¶ 2 Iliana was born to respondent and Iliana's mother (Patty)² in 2012. On 10 November 2014, the Rockingham County Department of Social Services (RCDSS) received an initial Child Protective Services (CPS) report for Iliana and her half sibling.³ CPS was concerned that Iliana was living in a hoarder home, that Iliana's parents were using illegal substances, that her parents were selling their food stamps, and that her parents were having domestic discord. After RCDSS completed an assessment, services were not recommended, and the case was closed on 6 January 2015.

¶ 3 On 16 October 2015, the Orange County Department of Social Services (OCDSS) received a CPS report alleging that Iliana's half sibling was exposed to drug abuse and domestic violence while in Patty's care. Respondent and Patty did not live together at the onset of OCDSS's involvement with Patty. On 8 January 2016, Patty was sentenced to forty-five days in jail for shoplifting and violating her probation. On 26 April 2016, Patty tested positive for cocaine and was jailed for violating her probation.

¶ 4 After Patty was jailed, respondent stated that he could not care for Iliana due to his work schedule, and he voluntarily placed Iliana in her maternal grandmother's care. After Patty was released from jail, respondent and Patty met with OCDSS and agreed that Iliana would remain with her maternal grandmother "until the housing situation was resolved and [respondent and Patty] engaged in substance abuse treatment."

¶ 5 On 27 May 2016, respondent completed an intake with a substance abuse recovery center but refused to submit to drug screens and admitted to the social worker that he would test positive for marijuana. By August 2016, respondent and Patty were homeless and were staying with respondent's mother. Due to respondent's substance abuse and lack of stable housing, OCDSS obtained nonsecure custody of Iliana on 10 August 2016. Shortly thereafter, respondent and Patty agreed to the entry of a consent order that granted temporary custody of Iliana to her maternal grandmother.

¶ 6 After a hearing on 15 September 2016, the trial court entered an order on 6 December 2016 adjudicating Iliana to be a dependent juvenile and ordering her to remain in the temporary legal and physical custody of her maternal grandmother. The trial court ordered respondent and Patty to complete drug screens, seek substance abuse treatment, and comply with all treatment recommendations. However, respondent was arrested in October 2016 and was subsequently convicted of assault on a female after a domestic violence incident between himself and Patty.

¶ 7 The trial court held a hearing on 15 December 2016 to review the case and found that respondent was not complying with drug screens and that domestic violence was a new concern due to the domestic violence incident between respondent and Patty.

¶ 8 After the first permanency-planning hearing held on 2 March 2017, the trial court entered an order setting the permanent plan for Iliana as guardianship and a secondary plan of reunification. At the time of the hearing, respondent had refused eight out of fifteen requested drug screens and stated on one of the refusals that he would likely test positive for marijuana.

¶ 9 On 4 May 2017, respondent requested that the trial court review the case to determine whether the trial court's last order was in Iliana's best interests, including the provisions regarding visitation. The trial court granted respondent unsupervised visits for a minimum of one hour each week after a review hearing on 18 May 2017. However, the trial court stated that the visits would be suspended or revised if respondent was not in full compliance with his substance abuse treatment and did not submit negative drug screens.

¶ 10 On 15 June 2017, a second permanency-planning hearing was held. In an order entered on 17 July 2017, the trial court maintained the permanent plan of guardianship and the secondary plan of reunification for Iliana. The trial court found that respondent and Patty had refused a significant number of drug screens and had not engaged in services to address their domestic violence issues. The trial court subsequently ordered respondent and Patty to submit to random drug screens, continue substance abuse treatment, abstain from domestic violence, and maintain safe and stable housing. Respondent was also required to participate in a program for domestic violence perpetrators.

¶ 11 On 4 July 2017, respondent and Patty appeared under the influence of a substance while in Iliana's presence. OCDSS rescinded unsupervised visitation on 19 July 2017. Respondent and Patty had another child together in September 2017.

¶ 12 On 7 November 2017, the trial court entered a permanency-planning order in which it granted guardianship of Iliana to her maternal grandmother and ceased reunification efforts with respondent due to a lack of progress on his case plan. The trial court incorporated by reference the social worker's court report, which documented that respondent continued to reside in his mother's home despite safety concerns, respondent and Patty had another child that resided in respondent's mother's home, respondent could only miss one more session before being terminated from the domestic violence perpetrator program, and both respondent and Patty last refused a drug screen on 5 June 2017. Respondent and Patty timely appealed the trial court's order granting guardianship to Iliana's maternal grandmother.

¶ 13 In March 2018, both respondent and Patty completed their substance abuse program at the substance abuse recovery center. However, on 20 April 2018, Patty displayed drug-seeking behavior evidenced by text messages she sent to respondent.

¶ 14 On 7 August 2018, in a unanimous decision, the Court of Appeals vacated the trial court's order and remanded the case to the trial court based on its conclusion that there were insufficient findings to support the trial court's conclusion that respondent was acting inconsistently with his constitutionally protected status as a parent.

¶ 15 Shortly thereafter, on 23 August 2018, respondent was involved in a domestic incident with his mother. The emergency response call log indicated that respondent was verbally aggressive toward his mother and was "tearing up" respondent's mother's home. On 4 September 2018, respondent tested positive for marijuana. Also, RCDSS completed a home visit on 12 December 2018 and found that respondent's mother's home continued to pose safety concerns for Iliana.

¶ 16 On 3 and 18 January 2019, the trial court held another permanency-planning hearing regarding Iliana. The trial court again found that respondent had acted inconsistently with his protected status as a parent and determined that guardianship with Iliana's maternal grandmother was in Iliana's best interests.

II. Respondent's Appeal

¶ 17 Respondent timely appealed to the Court of Appeals. In a divided opinion filed on 18 August 2020, the Court of Appeals affirmed the trial court's order. See In re I.K. , 273 N.C.App. 37, 50-52, 848 S.E.2d 13, 24 (2020). Respondent then appealed to this Court.

¶ 18 On appeal, respondent argues that the trial court's conclusion that he acted inconsistently with his constitutionally protected status as a parent to Iliana is not supported by clear and convincing evidence. Respondent specifically challenges the trial court's findings of fact 26(b)-(c), 28, 30, 37, and 43(a), which relate to his substance abuse, housing situation, and involvement in domestic violence.

III. Standard of Review

¶ 19 "[A] trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence." Adams v. Tessener , 354 N.C. 57, 63, 550 S.E.2d 499 (2001). "The clear and convincing standard requires evidence that should fully convince. This burden is more exacting than the preponderance of the evidence standard generally applied in civil cases, but less than the beyond a reasonable doubt standard applied in criminal matters." Scarborough v. Dillard's, Inc. , 363 N.C. 715, 721, 693 S.E.2d 640 (2009) (cleaned up) (first quoting In re Will of McCauley , 356 N.C. 91, 101, 565 S.E.2d 88 (2002) ; then quoting Williams v. Blue Ridge Bldg. & Loan Ass'n , 207 N.C. 362, 363–64, 177 S.E. 176 (1934) ), cert. denied , 563 U.S. 988, 131 S.Ct. 2456, 179 L.Ed.2d 1211 (2011).

¶ 20 The trial court's legal conclusion that a parent acted inconsistently with his constitutionally protected status as a parent is reviewed de novo to determine whether the findings of fact cumulatively support the conclusion and whether the conclusion is supported by clear and convincing evidence. See Boseman v. Jarrell , 364 N.C. 537, 549, 704 S.E.2d 494 (2010) ; Adams , 354 N.C. at 65–66, 550 S.E.2d 499. The trial court's findings of fact are conclusive on appeal if unchallenged, see Boseman , 364 N.C. at 549, 704 S.E.2d 494 ; Adams , 354 N.C. at 65–66, 550 S.E.2d 499, or if supported by competent evidence in the record, see In re L.R.L.B. , 2021-NCSC-49, ¶ 11, 857 S.E.2d 105.

IV. Analysis

¶ 21 The trial court relied on...