In re L. D. M.

1

IN THE MATTER OF: L. D. M.

No. COA22-739

Court of Appeals of North Carolina

August 1, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 23 May 2023.

Appeal by respondent-mother from order entered 17 June 2022 by Judge Resson O. Faircloth in Harnett County No. 19 JA 103 District Court.

Rebekah W. Davis for respondent-appellant mother.

Marie H. Mobley for guardian ad litem.

Duncan B. McCormick for petitioner-appellee Harnett County Department of Social Services.

DILLON, JUDGE

Respondent-mother ("Mother") appeals a permanency planning order awarding guardianship of her son ("Luke")^[1] to nonparents. We affirm.

I. Background

Mother is the mother of Luke, as well as two other children, who are not subject to this appeal.

The Harnett County Department of Social Services ("DSS") has been involved with Mother and Luke since August 2018. In November 2018, DSS found Mother was unstable and was not receiving treatment for her mental and emotional health. Mother has diagnoses of borderline personality disorder, factitious disorder imposed on another, and anxiety. Mother also has a history of drug and alcohol use.

On 21 August 2020, the trial court entered its adjudication and disposition order, adjudicating Luke as a neglected juvenile. In its order, the court authorized placement of Luke with a married couple, the Williamses, whom Mother had developed a close relationship with during the time they supervised visitation prior to COVID-19 restrictions. Additionally, the trial court ordered Mother to participate in long-term psychotherapy and treatment for her bi-polar disorder, take her medication as prescribed, participate in outpatient substance abuse treatment, cooperate with random and scheduled drug screens, obtain and maintain suitable housing, and complete a parenting education program.

Six weeks later, on 2 October 2020, the trial court conducted a permanency planning review hearing, in which it continued to authorize placement of Luke with the Williamses. The trial court established a primary plan of reunification and a secondary plan of guardianship. During the following year, the trial court conducted two additional review hearings and established a primary plan of custody, a secondary plan of reunification, and a concurrent secondary plan of guardianship.

On 17 June 2023, after hearings on the matter, the trial court entered an order (the "Order") establishing a primary plan of guardianship, ceasing reunification efforts, and appointing the couple as Luke's permanent guardians. Mother appealed.

II. Analysis

Mother raises three arguments, which we address in turn.

A. Guardianship

Mother argues that the trial court failed to make sufficient findings to support its conclusion she acted inconsistently with her parental rights. We disagree.

Our appellate review of the Order "is limited to whether there is competent evidence in the record to support the findings of fact and whether the findings support the conclusion of law." In re B.R.W., 381 N.C. 61, 77, 871 S.E.2d 764, 775 (2022). The trial court's findings of fact are "conclusive on appeal if supported by any competent evidence." In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453 (2013).

We review the trial court's conclusions of law de novo.

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. The trial court's findings of fact are conclusive on appeal if unchallenged, or if supported by competent evidence in the record.

In re I.K., 377 N.C. 417, 421-22, 858 S.E.2d 607, 611 (2021) (citations omitted).

The Due Process Clause in the Fourteenth Amendment of the United States

Constitution protects a natural parent's paramount constitutional right to the custody and control of his or her children. See Troxel v. Granville, 530 U.S. 57 7273, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Absent a finding that a parent is (1) unfit or (2) has acted inconsistently with his or her constitutionally protected parental status, the parent's right to the custody, care, and control of his or her child must prevail. In re B.R.W., 381 N.C. at 77, 871 S.E.2d at 775-76. 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, 503 (2001).

Here, the trial court awarded guardianship of Luke to the Williamses because Mother "neglected the juvenile and acted inconsistently with [her] respective parental rights, duties, and obligations." Mother makes numerous arguments challenging this determination, but we also note the trial court made extensive findings of fact which Mother does not challenge on appeal. We discuss only the arguments necessary to support the trial court's conclusion that Mother acted inconsistent with her parental rights.

First, Mother takes issue with the trial court's conclusion that:

By clear, cogent, and convincing evidence, the court finds that the parents neglected the juvenile and acted inconsistently with their respective parental rights, duties, and obligations.

Mother contends this conclusion was erroneous because it references "the parents" instead of her specifically. She cites two cases from our Court to support her argument. However, unlike the Order here, the trial court's orders in those cases were reversed because of the trial court's failure to make any findings or conclusions regarding whether the parent was unfit or had acted inconsistently with his/her constitutional right to parent. In re D.M., 211 N.C.App. 382, 385, 712 S.E.2d 355, 357 (2011) ("Because the trial court failed to make any findings of fact or conclusions of law as to whether respondent-father had acted inconsistently with his parental rights, it erred in awarding permanent custody to [the] grandmother"); In re B.G., 197 N.C.App. 570, 574, 677 S.E.2d 549, 552 (2009) ("Contrary to the trial court's conclusions otherwise, to apply the best interest of the child test in a custody dispute between a parent and a nonparent, a trial court must find that the natural parent is unfit or that his or her conduct is inconsistent with a parent's constitutionally protected status."). Here, however, the trial court made the requisite finding that Mother, herself, acted inconsistently with her constitutional right. We, therefore, conclude that the specific reference to "the parents" rather than just to her, does not constitute reversible error.

Next, Mother contends the trial court's findings regarding whether she acted inconsistently with her parental rights were not supported by the evidence. However, this is a conclusion of law, not a finding of fact, and Mother does not challenge most of the trial court's extensive findings of fact, which are binding on appeal. Specifically, she contends the "implication that [Mother] did not understand past problems or minimized them and she will not deal with mental health issues" was not supported by evidence. However, the trial court's unchallenged findings specifically note Mother's efforts in detail, but the trial court ultimately found Mother did not make sufficient progress. For example, the trial court found:

kkk. The mother has made efforts. The mother has made progress. She has checked the boxes on her case plan, and she believes that checking these boxes is the equivalent of substantial completion of the case plan.....

mmm. The mother does not acknowledge the significance of her history of mental illness or the impact of her mental illness on the juvenile and the older % sibling.

Mother does not challenge that these findings are unsupported by the evidence. Rather, she argues they are "inaccurate" based upon her contention that her progress was greater than the trial court found. We, however, do not reweigh the evidence or determine its credibility. And there is evidence in the record showing that Mother continuously failed to engage in dialectical behavioral therapy (DBT) to treat her bipolar disorder. During trial, when asked by the DSS attorney whether she acknowledged her mental health issues, Mother responded that "[she] wouldn't say it's severe at all." Mother later testified the following:

[Mother]: I don't believe I'm cured. And I, that's why I'm still attending therapy. I have a lot of past traumas that I have to work through. But none of them affect my parenting or affect how I will be a parent to, to my children.

[DSS attorney]: You acknowledge they've effected your parenting in the past.

[Mother]: The drugs effected my parenting in the past. Nothing to do with my mental health has ever [a]ffected my parenting.

Additionally Mother's therapist noted concerns over Mother's apparent impression her medication was only prescribed on an "as-needed" basis. And instead of addressing her mental health issues, Mother obtained a mental health assessment that was not recommended by DSS. This evaluation concluded Mother did not meet the diagnostic criteria for any psychological or mental health disorder. The evaluation was unreliable because, as the trial court found, "the evaluator did not review [the former therapist's] psychological evaluation... did not consider any information from [Mother's] therapist. [and] did not consider any information other than information...