In re R.J.P.

875 S.E.2d 1

IN RE: R.J.P.

No. COA21-796

Court of Appeals of North Carolina.

Filed June 21, 2022

Jamie L. Hamlett, for Alamance County Department of Social Services, Petitioner-Appellee.

Parker Poe Adams & Bernstein LLP, Raleigh, by Adam C. Setzer, for Guardian ad Litem.

Anné C. Wright, Boone, for Mother-Appellant.

WOOD, Judge.

¶ 1 Respondent-Mother ("Mother") appeals from the trial court's orders granting guardianship of her son Ryan¹ to his paternal great aunt and uncle, Maria and Jordan Turner (the "Turners")² , and granting visitation rights with Ryan to his maternal grandparents, Elly and Charles Palmer (the "Palmers")³ . On appeal, Mother argues the trial court abused its discretion by 1) denying her visitation with Ryan, and 2) not granting co-guardianship of Ryan to the Turners and Palmers. After a careful review of the record and applicable law, we affirm in part the orders of the trial court and remand in part for an appropriate visitation plan.

I. Factual and Procedural Background

¶ 2 Mother and Father began a romantic relationship, and together, the couple had Ryan on July 22, 2014. In 2014, the Alamance County Department of Social Services ("DSS") received a report of a domestic violence incident between Mother and Father while Ryan was present. During the investigation, DSS became concerned Father was "aggressive in his behaviors towards ... Mother[.]" DSS was also concerned both parties were engaging in substance abuse. Ultimately, DSS closed the case as Services Recommended when Mother voluntarily returned to a residential treatment program. DSS recommended Mother "complete the full treatment program; seek counseling for domestic violence; and have no further contact with Respondent Father."

¶ 3 Approximately three years later, DSS received another report concerning Ryan. The report alleged Ryan was injured during an automobile accident that occurred because Mother was driving while under the influence of cocaine, marijuana, amphetamines, opiates, and benzos. Mother drove off of a bridge, landing in the water below. Ryan and Mother were able to climb up to safety, but Ryan "suffered a skull fracture, hematoma to the forehead and abrasion to the left upper shoulder."

¶ 4 In response to this report, DSS found the family to be in need of services and transferred the case to In-Home Services in New Hanover County on August 11, 2017. On August 23, 2017, the New Hanover County Department of Social Services ("NHCDSS") received a report regarding Ryan. This report alleged Mother was driving under the influence with Ryan in the car and was giving Ryan Benadryl to make him sleep. A few days later, NHCDSS created an initial plan for Mother to receive Substance Abuse and Mental Health treatment and for Ryan to begin receiving therapy services.

¶ 5 On October 27, 2017, Father notified NHCDSS he was concerned about Mother's behaviors. When NHCDSS spoke with Mother, she admitted to have been using cocaine, heroin, and Percocet in Ryan's presence. Four days later, Mother and Father decided to place Ryan with the Palmers. On November 28, 2017, Mother also moved into the Palmer's home. NHCDSS verified the move the next day, and the In-Home Services case was then transferred back to Alamance County. On August 16, 2018, NHCDSS closed its In-Home Services case.

¶ 6 Eight days later, Alamance County DSS received another report concerning Ryan. This report alleged Mother was under the influence of methamphetamines and driving with Ryan in the vehicle. The report also alleged Mother had assaulted Elly Palmer while Ryan was present. As a result, a safety plan was developed and a 50-B domestic violence protective order was granted against Mother. Meanwhile, Ryan continued to live with the Palmers. After the 50-B protective order expired, Mother moved back in with Elly Palmer. Shortly thereafter, DSS closed the case with services recommended for mental health and substance abuse treatment.

¶ 7 On February 18, 2020, DSS received a new report regarding Ryan. This report alleged Mother was acting erratic, "off her rocker[,]" and was tearing up the house. Both Father and Ryan were present during this incident. Because of Mother's behavior, Father and Ryan were forced to vacate the house and "did not have a place to stay." The report further alleged DSS had concerns Ryan may have neurological problems but that Mother and Father continued to deny or minimize any potential mental health needs Ryan may have.

¶ 8 On April 20, 2020, DSS determined the family was in need of services and transferred the case to In-Home Services to address 1) Mother's and Father's mental health needs and substance abuse, 2) continuing relationship discord between the parties, and 3) Ryan's mental health needs. Sometime afterwards, Father moved to Wilmington, North Carolina.

¶ 9 On May 5, 2020, the Alamance County Sheriff's Office received a call about a suspicious person walking in the road, staggering, and flashing a flash light outside of the power plant in Graham, North Carolina. Deputy Stone responded to the scene and observed Father staggering and holding a flashlight. Deputy Stone transported Father back to the couple's residence. On the way, Father told Deputy Stone there was a shotgun inside the residence and that Mother was a felon. Upon arrival, Deputy Stone received consent to search the residence and discovered on the floor of the residence an un-locked, loaded shotgun within Ryan's access. Corporal T. Ray and Detective Wood also responded to the residence. Mother was arrested subsequent to the search and charged with possession of a weapon by a felon and child abuse. DSS received a report of this incident the following day and promptly conducted a pre-petition child family team meeting. There, it was agreed Ryan would stay with the Turners. Due to incarceration and the short notice of the meeting, Mother was not present at the meeting.

¶ 10 On May 7, 2020, DSS filed a juvenile petition alleging Ryan to be a neglected juvenile. The trial court entered a nonsecure custody order the same day, placing Ryan with the Turners. The trial court held two additional hearings regarding nonsecure custody of Ryan that same month. Mother remained incarcerated at the time of each hearing. After these hearings, the trial court entered orders continuing Ryan's placement with the Turners. In each order, the trial court found "[t]hat it is not in the best interest of the juvenile to have visitation/contact with Respondent Mother due to her current incarceration."

¶ 11 On July 15, 2020, the trial court conducted an adjudication and disposition hearing. Mother remained incarcerated as of the date of this hearing. By order entered August 4, 2020, the trial court adjudicated Ryan a neglected juvenile and continued his placement with the Turners. The order also contained the following relevant decrees:

7. That at this time, it is not in the juvenile's best interest to have visitation with the Mother due to her current incarceration. However, she may write letters and send them to the social worker to review and provide to the juvenile.

8. That ... [Mother] may call between 1:00 p.m. – 3:00 p.m. twice a week.... [Mother] will be responsible for the cost of telephone calls. Discussion must be age appropriate. Phone contact must be supervised by the ... [Turners] at a high level of supervision (eyes and ears on). If child gets distressed or upset, the ... [Turners] can discontinue the telephone calls.

9. That no discussions of the case should take place with ... [Ryan]. That if the phone calls are negatively impacting the juvenile's mental health, the calls will no longer be permitted.

¶ 12 Thereafter, Mother was released from incarceration. Meanwhile, Ryan continued to reside with the Turners. Maria Turner stated Ryan was "doing better" at his placement, "learning what ‘no’ means[ ]"; however, "some days are more difficult than others in regards to his defiance, but he is adjusting well ...."

¶ 13 On October 6, 2020, the trial court entered a review and permanency planning order. The trial court found that Ryan had been diagnosed with "ADHD, Generalized Anxiety Disorder, Oppositional Defiance Disorder and Post-Traumatic Stress Disorder." The trial court continued Ryan's placement with the Turners, ordered a primary plan of reunification with a secondary plan of guardianship, and granted Mother one hour of supervised visitation per week. The Palmers also were granted "unsupervised visitation, to include overnight, and the first and third weekend ... of the month from 6:00 p.m. on Friday until 6:00 p.m. on Sundays."

¶ 14 On December 23, 2020, the trial court entered another review and permanency planning order that continued Ryan's placement with the Turners, granted the Palmers unsupervised visitations every first and third weekend of each month, and granted Mother one hour of supervised visitation per week. A few months later, DSS filed a report with the trial court stating that Ryan "appears well bonded to each of his parents and his placement providers." Ryan told DSS he enjoyed spending time with Elly Palmer and his parents but, at other times, also stated he does not want to go on the weekend visits to the Palmers’ residence.

¶ 15 On June 28, 2021, the trial court entered a review and permanency planning order changing Ryan's primary plan to guardianship with a secondary plan of reunification. Another review hearing was scheduled for July 28, 2021 but continued until August 11, 2021, and DSS and the guardian ad litem filed reports with the trial court on August 11, 2021. DSS reported Ryan stated he "wants to live with his dad or the ... [Turners] and does not wish to live with ... [Elly Palmer]." Ryan had, occasionally, refused to visit Mrs. Palmer's residence; however, a DSS social worker observed that Ryan seems to enjoy his visits when he did attend. Elly Palmer informed DSS that she was "on disability due to Clinical Depression" and "takes medication to assist with her...