In re A.P.W.

378 N.C. 405

861 S.E.2d 819

In the MATTER OF: A.P.W., A.J.W., H.K.W.

No. 418A20-1

Supreme Court of North Carolina.

Filed August 27, 2021

Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, North Wilkesboro, for petitioner-appellee Wilkes County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Parent Defender Wendy C. Sotolongo and Assistant Parent Defender J. Lee Gilliam, for respondent-appellant father.

Anné C. Wright, Boone, for respondent-appellant mother.

BERGER, Justice.

¶ 1 Respondent-mother and respondent-father appeal from the trial court's orders terminating their parental rights in the minor children "Ava," born on January 16, 2014, "Aiden," born on June 16, 2012, and "Hunter," born on February 14, 2011.¹ In an order entered on December 18, 2020, this Court also allowed respondents’ joint petition for writ of certiorari to review the trial court's March 4, 2019 permanency planning order eliminating reunification from the children's permanent plan. See N.C.G.S. § 7B-1001(a1)(2), (a2) (2019) ; see also N.C.R. App. P. 21(a)(1) (authorizing certiorari review "when the right to prosecute an appeal has been lost by failure to take timely action[.]"). We now affirm the trial court's orders with regard to respondent-mother and respondent-father.

I. Procedural History

¶ 2 On January 2, 2017, the Wilkes County Department of Social Services (DSS) received a child protective services (CPS) report stating that Ava, Aiden, and Hunter's home lacked heat and running water and had holes in the floor. The same day, law enforcement came to the residence to investigate a reported robbery in which a man wearing a ski mask brandished a toy gun while attempting to steal medication belonging to a friend of respondent-mother. Officers found drug paraphernalia in the home, and two of the children identified respondent-father as the robber. Law enforcement reported finding used hypodermic needles in the home, raising "concerns about improper supervision and ongoing substance abuse." DSS was notified that day that "mom and the children resided in a home with no running water or heat and holes in the floor." In subsequent drug screens, respondent-mother tested positive for THC and benzodiazepine.² Respondent-father tested positive for methamphetamine and benzodiazepine.

¶ 3 On January 3, 2017, DSS obtained nonsecure custody of the children and filed petitions alleging they were neglected juveniles under N.C.G.S. § 7B-101(15) (2019). Specifically, the petitions alleged that the children were neglected because they did not receive proper supervision from their parents and lived in an environment injurious to their welfare. Because of this, respondent-mother was asked to find appropriate housing for the family, and she subsequently moved in with the children's paternal grandmother. Respondent-father "was asked to move out of the home due to inappropriate housing arrangements."

¶ 4 After a hearing on February 6, 2017, the trial court entered an order adjudicating the children neglected. In lieu of written findings, the trial court found that respondents had stipulated to the facts stated in the court summary prepared by DSS and incorporated the document into the order by reference. According to the court summary, respondents’ CPS history began in 2013 when one child fell and hit his head while under respondent-mother's care, though the case was closed because neglect was not substantiated. Then, in 2016, there were concerns of "substance abuse by the parents and improper care of the children." Later that year, all three children underwent medical exams which showed medical or remedial neglect. Due to this, the family went into case management, and "[b]oth parents were substantiated on for improper medical/remedial care."

¶ 5 Per a separate disposition order, legal and physical custody of the juveniles was to remain with DSS. The trial court granted respondents semi-monthly, one-hour periods of supervised visitation, "contingent upon clean drug screens." The court ordered DSS to conduct a home study of the paternal grandmother.

¶ 6 Respondents each entered into a DSS case plan requiring them to provide DSS with a written statement of the reasons their children were placed in foster care. Further, both respondents had to obtain substance abuse assessments; complete parenting classes; obtain and maintain stable employment and appropriate housing; sign a voluntary support agreement requiring payment of timely child support; and attend regular visitation with the children, conditioned upon negative drug screens. Respondent-father was also required to complete anger management classes.

¶ 7 At the initial review hearing on June 5, 2017, the trial court found respondent-mother had "completed most of the requirements of her family service case plan[,]" including substance abuse treatment and parenting classes. Respondent-mother had signed a voluntary support agreement and had a "small child support arrearage." She had submitted to random drug screens and regularly attended visitation with the children. However, while DSS was unable to inspect the interior of respondent-mother's home at that time, the exterior was found to be in poor condition. Respondent-father had "made practically no progress" on his case plan, and he was not attending visitations or maintaining regular contact with the social worker.

¶ 8 On December 4, 2017, the trial court held a permanency planning hearing and established a primary permanent plan of reunification with a concurrent plan of custody with a court-approved caretaker. At the time of the hearing, respondent-father was incarcerated for a probation violation and had made no child support payments despite entering into a voluntary support agreement. The trial court found that respondent-mother was unemployed and "behind in her child support[.]" Additionally, an inspection of respondent-mother's home revealed that the condition of her residence was unclean, "very cluttered[,]" and "not appropriate at this time." Respondent-mother was living with her boyfriend Thomas and their infant child. The trial court further found that Ava, Aiden, and Hunter had "indicated that they are afraid of [Thomas,]" and that respondent-mother had "advised the social worker that she will separate herself from [Thomas] if necessary to regain custody of her children."

¶ 9 Following a review hearing on September 18, 2018, the trial court entered a permanency planning order on March 4, 2019. This order eliminated reunification and changed the primary plan to adoption with the secondary plan being custody with an approved caretaker. The court relieved DSS of further reunification efforts while noting that "[e]ach parent, through counsel, preserves their right to appeal the Court's decision to cease reunification efforts." However, respondents failed to file written notice preserving their right to appeal the order eliminating reunification from the permanent plan, as required by N.C.G.S. § 7B-1001(a1)(2) which states

(a1) In a juvenile matter ... only the following final orders may be appealed directly to the Supreme Court:

....

(2) An order eliminating reunification as a permanent plan under G.S. 7B-906.2(b), if all of the following conditions are satisfied:

a. The right to appeal the order eliminating reunification has been preserved in writing within 30 days of entry and service of the order.

b. A motion or petition to terminate the parent's rights is filed with 65 days of entry and service of the order eliminating reunification and both of the following occur:

(1) The motion or petition to terminate rights is heard and granted.

(2) The order terminating parental rights is appealed in a proper and timely manner.

N.C.G.S. § 7B-1001(a1)(2) (2019).

¶ 10 DSS later filed petitions to terminate respondents’ parental rights in Ava, Aiden, and Hunter. On June 9, 2020, the trial court held a hearing on the petitions, and on June 30, 2020, the trial court entered orders terminating respondents’ parental rights.

¶ 11 In adjudicating grounds for termination, the trial court concluded respondents had: (1) neglected the children under N.C.G.S. § 7B-1111(a)(1) ; (2) willfully left the children in a placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to their removal under N.C.G.S. § 7B-1111(a)(2) ; and (3) willfully failed to pay a reasonable portion of the children's cost of care in DSS custody under N.C.G.S. § 7B-1111(a)(3). With regard to respondent-mother, the trial court further concluded the children were dependent juveniles under N.C.G.S. § 7B-1111(a)(6), because she was incapable of providing proper care and supervision for the children and lacked an appropriate alternative childcare arrangement. The trial court then considered the dispositional factors in N.C.G.S. § 7B-1110(a) and determined it was in the children's best interests that respondents’ parental rights be terminated.

¶ 12 Respondents filed notice of appeal from the termination orders. By an order entered on December 18, 2020, this Court allowed respondents’ joint petition for writ of certiorari to review the March 4, 2019, permanency planning order eliminating reunification from the permanent plan as part of their appeal.

II. Order Eliminating Reunification from the Permanent Plan

¶ 13 Respondents contend the trial court erred when it eliminated reunification from the children's permanent plan in the March 4, 2019, permanency planning order. We disagree.

A. Standard of review

¶ 14 This Court's review of a 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." The trial court's findings of fact are conclusive on appeal if supported by any competent evidence."

In re H.A.J. , 377 N.C. 43, 2021-NCSC-26, ¶ 14, 855 S.E.2d 464 (quoting In re...