In re L.E.W.

375 N.C. 124

846 S.E.2d 460

In the MATTER OF: L.E.W.

No. 390A19

Supreme Court of North Carolina.

Filed August 14, 2020

Anné C. Wright, Boone, and John Benjamin "Jak" Reeves, West Jefferson, for petitioner-appellee Alleghany County Department of Social Services.

Erin K. Otero, GAL Appellate Counsel, for appellee Guardian ad Litem.

Deputy Parent Defender Annick Lenoir-Peek, for respondent-appellant mother.

ERVIN, Justice.

Respondent-mother Christine W. appeals from orders eliminating reunification from the permanent plan for her daughter L.E.W.¹ and terminating her parental rights in the child. After careful consideration of the arguments advanced in respondent-mother's brief in light of the record and the applicable law, we hold that the challenged permanency planning and termination of parental rights orders should be affirmed.

I. Factual Background

The Alleghany County Department of Social Services became involved with respondent-mother and respondent-father Brandon W. in February 2017, prior to Luna's birth, based upon reports alleging domestic violence between and substance abuse involving the parents. Following an investigation into these reports, the parents entered into an in-home services agreement with DSS on 30 March 2017.

Luna was born on 28 April 2017. In June 2017, DSS received reports that the parents were continuing to engage in acts of domestic violence and were failing to properly feed Luna. In an attempt to address these concerns, the parents entered into a safety plan with DSS in which they agreed to feed Luna every two hours and to attend regular appointments at which Luna's weight would be checked.

On 26 June 2017, Luna was diagnosed with failure to thrive. On 3 July 2017, the parents failed to bring Luna to an appointment to check her weight despite the fact that multiple attempts had been made to have the parents keep that appointment. On 5 July 2017, DSS filed a petition alleging that Luna was a neglected juvenile and obtained the entry of an order authorizing it to take Luna into non-secure custody.

On 5 December 2017, Judge Houston entered an order adjudicating Luna to be a neglected and dependent juvenile,² placing Luna in the legal and physical custody of DSS, granting supervised visitation to the parents, and ordering the parents to comply with an Out of Home Family Services Agreement into which they had entered with DSS. After a permanency planning review hearing held on 3 July 2018, Judge Crumpton entered an order on 31 July 2018 in which he set the permanent plan for Luna as termination of parental rights with a concurrent plan of reunification.

On 27 September 2018, DSS filed a petition seeking to have both parents’ parental rights in Luna terminated on the grounds of neglect, willful failure to make reasonable progress toward correcting the conditions that had led to Luna's removal from the family home, failure to pay a reasonable portion of the cost of the care that had been provided to Luna, dependency, and abandonment. N.C.G.S. § 7B-1111(a)(1)–(3), (6)–(7) (2019). On 5 March 2019, Judge Crumpton conducted a permanency planning hearing, which led to the entry of an order on 1 April 2019 that eliminated reunification with the parents from Luna's permanent plan, relieved DSS from any obligation to attempt to effectuate reunification between Luna and the parents, and changed Luna's permanent plan to a primary plan of termination of parental rights coupled with a concurrent plan of guardianship. On 29 April 2019, respondent-mother filed a notice preserving her right to seek appellate review of Judge Crumpton's permanency planning order.

After a hearing held on 1 April 2019, Judge Houston entered an order on 16 July 2019 in which she found that both parents’ parental rights in Luna were subject to termination based upon each of the grounds for termination set out in the termination petition and that it would be in Luna's best interests for the parents’ parental rights in Luna to be terminated. As a result, the trial court terminated the parents’ parental rights in Luna.³

On 5 August 2019, respondent-mother noted an appeal from Judge Houston's termination order to this Court pursuant to N.C.G.S. §§ 7A-27(a)(5) and 7B-1001(a1)(1). On 17 December 2019, DSS and the guardian ad litem filed a motion seeking to have respondent-mother's appeal from the 1 April 2019 permanency planning review order dismissed on the grounds that no reference to that order had been made in respondent-mother's notice of appeal. On 20 December 2019, respondent-mother filed a petition seeking the issuance of a writ of certiorari authorizing appellate review of the 1 April 2019 permanency planning order. On 9 January 2020, this Court entered orders granting the dismissal motion and allowing respondent-mother's certiorari petition. As a result, we are reviewing both the permanency planning and the termination orders.

II. Substantive Legal Analysis

A. Permanency Planning Review Order

1. Standard of Proof

As an initial matter, respondent-mother contends that Judge Crumpton misstated the applicable standard of proof in the 1 April 2019 permanency planning order. More specifically, respondent-mother contends that Judge Crumpton erroneously stated in the challenged permanency planning order that "the court finds that the following findings of fact have been proven by clear, cogent, and convincing evidence." We conclude that respondent-mother is not entitled to relief from the trial court's permanency planning order on the basis of this argument.

As this Court has stated:

"The essential requirement[ ] at ... the review hearing[ ] is that sufficient evidence be presented to the trial court so that it can determine what is in the best interest of the child." In light of this objective, neither the parent nor the county department of social services bears the burden of proof in permanency planning hearings, and the trial court's findings of fact need only be supported by sufficient competent evidence.

In re L.M.T. , 367 N.C. 165, 180, 752 S.E.2d 453, 462 (2013) (alterations in original) (citations omitted). As a result, respondent-mother is correct in pointing out that the standard of proof set out in the challenged permanency planning order conflicts with the standard of proof applicable to permanency planning proceedings as articulated in this Court's prior decisions.

Although respondent-mother asserts that the "confusion" reflected in the trial court's misstatement of the applicable standard of proof adversely affected her chances for a more favorable outcome at the permanency planning hearing, we believe that the trial court's error worked in favor of, rather than against, respondent-mother's chances for a more favorable outcome given that the decision to eliminate reunification from Luna's permanent plan and to reduce respondent-mother's visitation with Luna rested upon findings of fact that required DSS to present stronger proof than the law actually required. As the Court of Appeals has clearly held in cases subject to Chapter 7B of the North Carolina General Statutes, "to obtain relief on appeal, an appellant must not only show error, but that ... the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action." In re B.S.O. , 234 N.C. App. 706, 713, 760 S.E.2d 59, 65 (2014) (alteration in original) (quoting Starco, Inc. v. AMG Bonding and Ins. Servs. , 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996) ). Thus, we hold that Judge Crumpton's misstatement of the applicable standard of proof in the 1 April 2019 permanency planning order constituted harmless error that does not entitle respondent-mother to relief from the challenged order.

2. Elimination of Reunification from Luna's Permanent Plan

Secondly, respondent-mother argues that Judge Crumpton erred by failing to make the factual findings required by N.C.G.S. § 7B-906.2 in eliminating reunification with the parents from Luna's permanent plan. More specifically, respondent-mother argues that Judge Crumpton erred in the course of eliminating reunification from Luna's permanent plan because "[n]one of the findings of fact made the ultimate required finding that reunification efforts would be futile or inconsistent with Luna's needs." We do not find respondent-mother's argument persuasive.

As we have previously stated, appellate review of a trial court's permanency planning review order "is limited to whether there is competent evidence in the record to support the findings [of fact] and whether the findings support the conclusions of law," In re L.M.T. , 367 N.C. at 168, 752 S.E.2d at 455 (alteration in original) (quoting In re P.O. , 207 N.C. App. 35, 41, 698 S.E.2d 525, 530 (2010) ), with "[t]he trial court's findings of fact [being] conclusive on appeal if supported by any competent evidence." Id. "At a permanency planning hearing, ‘[r]eunification shall be a primary or secondary plan unless,’ inter alia , ‘the court makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile's health or safety.’ " In re J.H. , 373 N.C. 264, 268, 837 S.E.2d 847, 850 (2020) (alteration in original) (quoting N.C.G.S. § 7B-906.2(b) (2019) ). As part of that process, the trial court is required to make written findings "which shall demonstrate the degree of success or failure toward reunification," including:

(1) Whether the parent is making adequate progress within a reasonable period of time under the plan.

(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.

(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.

(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.

N.C.G.S. § 7B-906.2(d) (2019). Although "use of the actual statutory language [is] the best...