In re M.S.

1

IN THE MATTER OF: M.S., S.L., T.H., S.H.

No. COA22-401

Court of Appeals of North Carolina

April 18, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 21 March 2023.

Appeal by Respondent-Mother from Order entered 8 March 2022 by Judge Gregory Bullard in Robeson County District Court, Robeson County, Nos. 17 JA 84, 17 JA 85, 17 JA 86, 18 JA 15.

J Edward Yeager, Jr., for petitioner-appellee Robeson County DSS.

K&L Gates, LLP, by Sophie Goodman, for guardian ad litem.

Benjamin J. Kull, for respondent-appellant mother.

RIGGS Judge

Respondent-Mother appeals the order granting permanent guardianship of her children to their paternal grandmothers and great-aunt. On appeal, she argues the trial court's findings of facts were not supported by clear, cogent, and convincing evidence and those findings of fact do not support the conclusions of law.

Additionally Mother argues that the trial court committed reversible error by failing to make statutorily mandated findings. After careful consideration, we affirm the order of the trial court in part and remand for additional finding per N.C. Gen. Stat. § 7B-906.2(d)(3) (2021).

I. Facts &Procedural History

On 4 February 2020, Robeson County Department of Social Services ("DSS") filed a petition alleging Mariah, Sarah, Tracey, and Stacey^[1] were neglected and dependent juveniles and lived in "environments injurious to the juvenile's welfare." On the same day, the trial court granted DSS nonsecure custody of the four minor children.

Respondent is the mother to all four children in this matter. Mr. L. is the father of the older children, Mariah and Sarah, while Mr. H. is the father of the younger children, Tracey and Stacey. In the order for nonsecure custody, DSS placed Mariah and Sarah with their paternal grandmother and great aunt and placed Tracey and Stacey with their paternal grandmother.

The pre-adjudication hearing was held on 11 March 2020. With the three parents and their attorneys present, the trial court found that it was in the best interest of the children for the nonsecure custody order to remain in effect with DSS to retain legal and physical custody of the four children due to domestic violence in the home. Five months later, on 29 July 2020, the trial court held an adjudication and disposition hearing^[2] with all parties and their attorneys present. At that hearing, the trial court adjudicated the four children neglected as defined by N.C. Gen. Stat. §7B-101(15). In the disposition order, required by Section 7B-901 and entered 16 September 2020, the trial court ordered DSS to continue reunification efforts, in this matter, which included having Mother complete substance abuse treatment, domestic violence classes, and maintain stable housing in accordance with the Out of Home Family Services Agreement^[3] that Mother signed.

The first permanency planning hearing was held on 23 September 2020 with all parents and their attorneys present. In the order for that hearing, entered 18 November 2020, the court found that while Mother had maintained stable housing, she had not attended domestic violence classes. Additionally, while she had participated in substance abuse treatment, she had also tested positive for multiple illicit drugs since April 2020. In its order, the trial court found that: (1) legal and physical custody of the children should remain with DSS; (2) the court would continue the plan for reunification and add a concurrent plan for relative guardianship; and (3) the matter would return for a permanency planning hearing in six months as required by Section 7B-906.1(a) (2021).

A second permanency planning hearing was held on 27 January 2021. At the time of this hearing, the children had been in the custody of DSS for 358 days. In its written order entered 15 April 2021, the trial court credited Mother with finding stable housing, completing a domestic violence class, working her substance abuse program, and testing negative for drugs; however, the court noted that compliance with the substance abuse program included regular therapy which she had not completed. The trial court found that: (1) legal and physical custody of the children should remain with DSS; (2) the court would transition to a primary plan of relative guardianship with a concurrent plan for reunification; and (3) the matter would return in six months for a permanency planning hearing.

On 18 November 2021, the trial court held a third permanency planning hearing. In this hearing, the social worker for DSS and the guardian ad litem ("GAL") testified. Also, the relative guardians of the children testified. Mother and both fathers attended most of the hearing but did not present evidence or testify. Mother and Mr. H. left the hearing early after Mr. H confronted and intimidated one of the relative guardians in front of the trial judge.

At that hearing, the social worker testified that Mother had maintained housing for close to two years. However, the social worker followed up with Mother's housing manager on 8 November 2021, who reported Mother's public housing was in jeopardy because Mother allowed Mr. H, who was banned from the housing, to be in the apartment. The housing manager further reported that Mother was not responsive to the housing manager's attempts to contact her about incidents with Mr. H.

The social worker also testified that although Mother completed domestic violence classes in September 2020, a series of 911 calls were placed in December 2020, January 2021, and May 2021, regarding arguments and threats between Mother and Mr. H. Specifically, in the 31 December 2020 call, caller advised "her babydaddy [Mr. H.] keeps riding by her house looking for trouble. . ." and in the 3 January 2021 call, the caller advised 911 that "her Baby's father making threats with a firearm, [Mr. H.] . . ."^[4] The social worker testified that Mother admitted that she made the calls in December and January; however, the social worker acknowledged that the incidents occurred before Mr. H. completed his domestic violence class. The social worker further testified that Mother began the process of pursuing a restraining order at DSS's recommendation, but the court dismissed the order when Mother did not appear to finalize the order. Additionally, the social worker reported that on 25 March 2021, after Mother and Mr. H. completed domestic violence classes, supervised visits between Mother and the children were suspended due to concerns about drinking and arguing between Mother and Mr. H. at the visitation. Finally, the social worker testified about a 911 call regarding domestic violence between "[Mother] and unknown male" on 13 May 2021 at Mother's address.

As to Mother's substance abuse treatment, the social worker testified that Mother has never fully complied with her substance abuse treatment in the almost two years her children had been in the custody of DSS. While Mother has attended initial assessments, Mother did not follow up by attending weekly treatment sessions and failed to respond to requests for random drug screenings. While Mother did have negative drug screenings, the screenings were not random. Additionally, the social worker testified that Mother tested positive for cocaine on multiple occasions, including as recently as October 2021. The DSS report submitted to the court and referenced by the social worker shows a pattern of Mother missing substance abuse treatment appointments and random drug screenings.

Finally, the social worker testified that while both older children, Mariah and Sarah, expressed a desire to live with Mother, they did not want to live with her if she is going to be with Mr. H. because they were afraid of the fighting and scared something would happen to Mother. The social worker testified that often, when Mother would visit the children in the placement home, she would bring Mr. H., or he would park across the street during the visit, which caused the children anxiety. The girl's therapist, who has treated them for two years, advised via affidavit that remaining in their current placements was in the best interest of the children. At the time of the hearing, all four children had been in the custody of DSS for 653 days.

At the close of the hearing, the trial court found that Mother was not compliant with her substance abuse treatment and that although Mother has maintained stable housing, her housing was currently in jeopardy due to her decision to allow Mr. H. to be at the home. The trial court stated that the behavior in the courtroom demonstrated that Mr. H.'s violent behavior continues to be an issue. Finally, the trial court found it compelling that Mariah and Sarah would choose not to be in Mother's home because of concerns about violence in the home. The trial court noted that since the plan transitioned to a primary plan of guardianship with a concurrent plan for reunification, Mother and Mr. H. made little progress in changing the plan back to reunification. It likewise found that DSS's efforts to achieve relative guardianship with a concurrent plan of reunification had been reasonable.

The court awarded guardianship of Mariah and Sarah to their paternal grandmother and great-aunt and guardianship of Tracey and Stacey to their paternal grandmother and her husband. Mother, who had left the courtroom, was awarded continuing weekly supervised visitation. The court noted that she still has a chance to be a significant part of her children's life. However, the court ordered that Mr. H could not...