In re A.W.

867 S.E.2d 235

In the MATTER OF: A.W.

No. COA21-182

Court of Appeals of North Carolina.

Filed November 2, 2021

Holland & O'Connor, PLLC, by Jennifer S. O'Connor, for petitioner-appellee Johnston County Department of Social Services.

Kimberly Connor Benton, Wilson, for respondent-appellant mother.

Benjamin J. Kull, Raleigh, for respondent-appellant father.

Mobley Law Office, P.A., by Marie H. Mobley, for guardian ad litem.

TYSON, Judge.

¶ 1 Respondent-mother and Respondent-father, collectively "Respondents," appeal the trial court's order awarding permanent guardianship of their daughter to her foster parents. We vacate and remand.

I. Factual and Procedural Background

¶ 2 Johnston County Department of Social Services ("JCDSS") became involved with A.W. ("Andrea"), and her family after law enforcement responded to a 911 call to their home following an incident of domestic violence between Respondents in March 2018. See N.C. R. App. P. 42(b) (pseudonym used to protect the identity of the juvenile). JCDSS alleged Respondent-father had assaulted Respondent-mother by attempting to stab her with a steak knife in February 2018 while ten-month-old Andrea and her stepsiblings were present. JCDSS implemented a safety assessment plan at this time. Respondent-father was arrested and charged. This charge was later dismissed.

¶ 3 On 24 April 2018, JCDSS removed Andrea and her stepsiblings from the home due to alleged violations of the safety plan by Respondent-father. One month later, JCDSS removed Andrea and her stepsiblings from the temporary safety provider's home. Respondent-father had refused to leave, which triggered a police escort of him from the property. Andrea and her stepsiblings were placed with the stepsiblings’ father in South Carolina on 27 May 2018.

¶ 4 JCDSS filed its juvenile petition alleging neglect and dependency on 29 May 2018 after Respondents had removed Andrea from the placement in South Carolina and secreted Andrea's whereabouts for two days. Respondents returned Andrea to JCDSS’ care the same day. Andrea was placed into a nonfamily-member-licensed foster care where she has remained for the pendency of this case.

¶ 5 The adjudication hearing was held on 27 June 2018. The court issued its order adjudicating Andrea as neglected and dependent on 6 December 2018. The order contains 20 findings of fact and indicates, "parents by and through counsel, consent to an Adjudication of neglect and dependency based upon the foregoing findings of fact."

¶ 6 The trial court's disposition order was entered 6 February 2019 and continued Andrea in JCDSS’ legal custody. The court ordered Respondents to cooperate with JCDSS and for JCDSS to continue to work towards reunification. In its permanency planning order filed 6 March 2019, the court ordered the primary permanent plan to be reunification with the parents, with a secondary plan of custody or guardianship with an approved caregiver.

¶ 7 In January 2019, the parents engaged in an argument during which Respondent-father allegedly struck Respondent-mother repeatedly. Law enforcement officers responded. Respondent-mother sought a Domestic Violence Protective Order ("DVPO"), alerted JCDSS, provided photos of her injuries, and copies of text messages and other social media posts sent by Respondent-father. Respondent-mother subsequently voluntarily dismissed the DVPO and reunited with Respondent-father. Since January 2019, no other incidents of domestic violence between Respondent-mother and Respondent-father have been reported.

¶ 8 Prior to the permanency planning hearing that is the subject of this appeal, and at the outset to the hearing, Respondent-father moved for the trial judge to recuse himself based upon the trial judge's relationship with Andrea's foster father and proposed guardian. The proposed guardian is a Johnston County Sheriff's deputy and serves as a bailiff in the county courthouse. Respondent-father also moved the court to delay the disposition hearing on Andrea until after an adjudication hearing was held on her younger brother, G.W., who was born after the present case began. The trial court denied both oral motions.

¶ 9 The court determined JCDSS would be relieved of reunification efforts, the permanent plan of guardianship had been achieved and ordered further reviews be suspended. On 30 October 2020, the court issued a permanency planning order awarding guardianship to Andrea's foster parents. Respondents appeal.

II. Jurisdiction

¶ 10 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a) (2019).

III. Analysis

¶ 11 On appeal, both parents filed separate briefs and arguments. Both argue the trial court failed to make the required findings to support ceasing reunification and that they were either unfit or had acted inconsistently with their constitutionally protected status as parents before granting guardianship to nonfamily members or nonparents and waiving further court review. We agree.

A. Constitutionally Protected Status

1. Standard of Review

¶ 12 "Our review of whether conduct constitutes conduct inconsistent with the parents’ constitutionally protected status is de novo. Under this review, we consider the matter anew and freely substitute our judgment for that of the lower tribunal." In re D.A. , 258 N.C. App. 247, 249, 811 S.E.2d 729, 731 (2018) (alterations, citations and internal quotation marks omitted).

¶ 13 This Court has mandated that the trial court "must clearly address whether the parent is unfit or if their conduct has been inconsistent with their constitutionally protected status as a parent" prior to considering granting custody or a guardianship to a nonparent. In re N.Z.B. , ––– N.C. App. ––––, ––––, 863 S.E.2d 232, 236, 2021-NCCOA-345, ¶ 19.

2. Parental Fitness

¶ 14 Respondents argue the trial court's finding that they were not fit and proper parents was not supported by clear, cogent, and convincing evidence and violated their constitutional rights to parent.

¶ 15 Our Supreme Court has repeatedly "recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L. Ed. 2d 49, 57 (2000) (citations omitted). The Supreme Court of North Carolina has also recognized the parents’ "constitutionally-protected paramount right to custody, care, and control of their child." Petersen v. Rogers , 337 N.C. 397, 400, 445 S.E.2d 901, 903 (1994).

¶ 16 The Supreme Court of North Carolina has held, "a natural parent may lose his constitutionally protected right to the control of his children in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with his or her constitutionally protected status." David N. v. Jason N. , 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005). "[T]he decision to remove a child from the custody of a natural parent must not be lightly undertaken. Accordingly, 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) (citation omitted).

¶ 17 No "bright line" exists beyond which the parents’ conduct amounts to unfitness or actions inconsistent with the parents’ constitutionally protected paramount status. Boseman v. Jarrell , 364 N.C. 537, 549, 704 S.E.2d 494, 503 (2010). "Determining whether a parent has forfeited their constitutionally protected status is a fact specific inquiry. In making such a determination, the trial court must consider both the legal parent's conduct and his or her intentions vis-à-vis the child." In re N.Z.B. , ––– N.C. App. at ––––, 863 S.E.2d at 236-37, ¶ 20 (citations and internal quotation marks omitted).

¶ 18 Here, the court's finding of fact 3f provides:

f. The Court finds by clear, cogent, and convincing evidence that neither parent is a fit and proper parent. The Court finds that the parents are acting inconsistent with the child's health and welfare. Furthermore, the parents have not made themselves readily available to JCDSS or the GAL program.

¶ 19 JCDSS and the guardian ad litem ("GAL") argue the above conclusory finding is supported by the trial court's findings of fact 3 a-e set forth in section B below. JCDSS and the GAL conflate the parties’ arguments. The trial court's conclusion to cease reunification efforts does not satisfy the requirement that before a court may award permanent custody of a child to foster parents and waive further review, the court must determine whether the parents were either unfit or had acted inconsistently with their constitutionally protected status as parents. David N. , 359 N.C. at 307, 608 S.E.2d at 753.

¶ 20 In D.A. , the trial court as here, "awarded de facto permanent custody of D.A. to the foster parents and waived further review." In re D.A. , 258 N.C. App. at 250, 811 S.E.2d at 732. The trial court found:

neither respondent parent has taken responsibility or provided a plausible explanation for the injuries that occurred to the juvenile while he was in their care. That while respondent father's charges were dismissed, and despite pleading guilty to the charges imposed upon her for harming her child, respondent mother continues to maintain that she did not inflict the juvenile's injuries, and this remains a barrier to reunification as the home remains an injurious environment.

Id. at 251, 811 S.E.2d at 732.

¶ 21 This Court held "the trial court's findings [were] insufficient to support a conclusion that Respondent-father was unfit or had acted inconsistently with his constitutionally protected status as a parent." Id.

¶ 22 Here, the trial court's order has very few findings of fact, mostly addressing the parties’ history of domestic violence. Although the trial court found "there has not been any reports of domestic violence since the last hearing," and that the parties "have...