IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-856
Filed: 21 March 2017
Mecklenburg County, No. 14 JA 420
IN THE MATTER OF: R.P.
Appeal by respondent from orders entered 2 May 2016 by Judge David
Strickland in Mecklenburg County District Court. Heard in the Court of Appeals 20
February 2017.
Associate Attorney Christopher C. Peace for petitioner-appellee Mecklenburg
County Department of Social Services, Youth and Family Services.
Mark L. Hayes for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by Mindy Campo and Maya Engle, for
guardian ad litem.
INMAN, Judge.
Respondent, the father of the juvenile R.P. (“Ricky”)1, appeals from a
permanency planning review order and an order appointing a guardian for the
juvenile. After careful review, we reverse and remand.
Factual and Procedural Background
On 17 June 2014, Mecklenburg County Department of Social Services, Youth
and Family Services (“YFS”) filed a petition alleging that Ricky, as well as two older
1 Pseudonyms are used to protect the identities of the juveniles and promote ease of reading.
IN THE MATTER OF: R.P.
Opinion of the Court
siblings (“Amy” and “Donald”)2, were neglected and dependent juveniles. YFS
claimed that it had received a referral on 30 April 2014 stating that respondent and
the juveniles’ mother had engaged in a physical altercation in which respondent
allegedly bit the mother on the leg and struck her face. A warrant was issued for
respondent’s arrest and it remained outstanding at the time the petition was filed. A
social worker met with the mother on 1 May 2014 to discuss the incident. During
this meeting, the mother refused to obtain a restraining order against respondent,
claiming that respondent “merely needed to be hospitalized involuntarily so that he
can again begin taking his medication(s) for his bipolar disorder for which he received
disability income.” The mother entered into a safety agreement with YFS and
claimed not to know of respondent’s whereabouts or contact information.
Subsequently, however, the mother retrieved Amy from her placement with an aunt
and, based on information provided by family members, went to reside with
respondent in South Carolina. YFS obtained non-secure custody of Ricky on 17 June
2014 and placed him with his maternal aunt (“Mrs. M.”).
An adjudicatory hearing was held on 19 August 2014. Respondent had still
not been served with the petition at that time. Based upon an agreement mediated
between Ricky’s mother, Amy’s father, and YFS, the juveniles were adjudicated
neglected and dependent. The trial court noted that the adjudication was being “held
2 Respondent is not the father of Amy or Donald and they are not the subject of this appeal.
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IN THE MATTER OF: R.P.
Opinion of the Court
in abeyance” as to respondent. The court ordered that the permanent plan for Ricky
be reunification.
A review hearing was held on 18 November 2014, at which respondent
appeared. Respondent was ordered to meet with a social worker and develop a case
plan. At a review hearing held on 24 March 2015, the court ordered respondent to be
compliant with his mental health treatment, but otherwise continued the plan of
reunification.
At permanency planning review hearings held on 23 June 2015, and 7 and 20
October 2015, concerns were expressed regarding possible incidents of domestic
violence between respondent and the juveniles’ mother. The court advised
respondent and the mother that “if no [domestic violence] concerns were raised and
there was no ‘drama’ during this upcoming review period then the Court can begin
considering/discussing transition plans.” Nevertheless, the court adopted a
concurrent permanent plan of guardianship.
In October 2015, an incident occurred between respondent and the mother
which led to respondent filing a complaint for a domestic violence protection order
(“DVPO”). On 6 November 2016, a consent order was entered granting the DVPO.
The DVPO provided that respondent and the mother would have no contact with one
another for a period of one year.
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IN THE MATTER OF: R.P.
Opinion of the Court
A subsequent permanency planning review hearing was held on 9 February
2016. In an order entered on 26 February 2016, the court changed the primary
permanent plan for Ricky to guardianship, and changed the secondary concurrent
plan for Ricky to reunification. The court found that respondent had made progress
on his case plan, but expressed concern about the continued domestic violence
between respondent and the mother. The court specifically noted that despite the no-
contact provisions of the DVPO, respondent and the mother continued to have contact
with one another, and expressed “grave concern regarding the safety of the juveniles
when the parents get together.” The court further found that Ricky was doing very
well with Mrs. M. and it was in his best interests that Mrs. M. be granted
guardianship. The court stated that it would proceed with granting guardianship to
Mrs. M. at the next hearing. On 2 May 2016, following a hearing held on 17 March
2016, the trial court entered a permanency planning review order and a separate
guardianship order placing Ricky in guardianship with Mrs. M. Respondent gave
written notice of appeal on 11 May 2016.
Analysis
We initially note that respondent filed a petition for writ of certiorari in the
alternative seeking review of the trial court’s permanency planning review order
entered on 26 February 2016. However, in our discretion, we determine it is
unnecessary to grant certiorari and deny the petition.
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IN THE MATTER OF: R.P.
Opinion of the Court
Respondent argues that the trial court erred by granting guardianship to Mrs.
M. without first determining that he was unfit or acted inconsistently with his
constitutionally protected parental status. We agree.
“ ‘[P]arents have a constitutionally protected right to the custody, care and
control of their child, absent a showing of unfitness to care for the child.’ ” In re A.C.,
__ N.C. App. __, __, 786 S.E.2d 728, 735 (2016) (citation omitted). “[A] parent may
lose the constitutionally protected paramount right to child custody if the parent’s
conduct is inconsistent with this presumption or if the parent fails to shoulder the
responsibilities that are attendant to rearing a child.” Cantrell v. Wishon, 141 N.C.
App. 340, 342, 540 S.E.2d 804, 806 (2000). Prior to granting guardianship of a child
to a nonparent, a district court must “clearly address whether [the] respondent is
unfit as a parent or if [his] conduct has been inconsistent with [his] constitutionally
protected status as a parent[.]” In re P.A., __ N.C. App. __, __, 772 S.E.2d 240, 249
(2015). “[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.” A.C. at __, 786 S.E.2d at 733 (citing Adams v. Tessener, 354 N.C. 57, 63,
550 S.E.2d 499, 503 (2001)).
Here, the trial court’s written orders make no reference whatsoever to
respondent’s constitutionally protected status as a parent, let alone whether he has
acted inconsistently with that status or is otherwise unfit to serve as a parent to
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Opinion of the Court
Ricky. The guardian ad litem cites the adjudication of neglect and dependency, and
argues that “[p]arental conduct that leads to an adjudication of the children as
neglected and dependent clearly constitutes ‘some showing of unfitness’ and is
inconsistent with the protected status of parents.” However, a finding that a parent
is unfit or acted inconsistent with his or her constitutionally protected status is
nevertheless required, even when a juvenile has previously been adjudicated
neglected and dependent. See In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355,
357 (2011) (reversing a custody order where the trial court specifically found that
neither parent was unfit and because the trial court failed to make any findings
regarding whether the father had acted inconsistently with his parental rights); In re
B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009) (reversing custody order
where the district court “failed to issue findings to support the application of the best
interest analysis” and stating that “[a]lthough there may be evidence in the record to
support a finding that [the r]espondent acted inconsistently [with his constitutionally
protected status as a parent], it is not the duty of this Court to issue findings of fact”).
We note that respondent failed to raise any constitutional issue before the trial
court. We have held that a parent’s right to findings regarding her constitutionally
protected status is waived if the parent does not raise the issue before the trial court.
See In re T.P., 217 N.C. App. 181, 186, 718 S.E.2d 716, 719 (2011) (holding that
mother “waived review of this issue on appeal” based on the doctrine that “
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Opinion of the Court
‘[c]onstitutional issues not raised and passed upon at trial will not be considered for
the first time on appeal’ ”) (citation omitted). We decline to find waiver here, however,
because we conclude that respondent was not afforded the opportunity to raise an
objection at the permanency planning review hearing.
The purpose of a permanency planning hearing is to develop a plan “to achieve
a safe, permanent home for the juvenile within a reasonable period of time.” N.C.
Gen. Stat. § 7B-906.1(g) (2015). N.C. Gen. Stat. § 7B–906.1(c) additionally provides:
At each hearing, the court shall consider information from
the parents, the juvenile, the guardian, any person
providing care for the juvenile, the custodian or agency
with custody, the guardian ad litem, and any other person
or agency that will aid the court’s review. The court may
consider any evidence, including hearsay evidence as
defined in G.S. 8C–1, Rule 801, or testimony or evidence
from any person that is not a party, that the court finds to
be relevant, reliable, and necessary to determine the needs
of the juvenile and the most appropriate disposition.
N.C. Gen. Stat. § 7B–906.1(c) (emphasis added); see also In re D.L., 166 N.C. App.
574, 583, 603 S.E.2d 376, 382 (2004) (emphasis omitted) (“As no evidence was
presented . . . regarding the permanency plan, the trial court’s findings of fact are
unsupported.”).
Here, the trial court determined at the 9 February 2016 permanency planning
review hearing that it would “proceed with guardianship at the next date.” (Emphasis
added). At the next hearing, on 17 March 2016, the trial court would not allow any
evidence to be presented concerning guardianship, stating that guardianship had
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Opinion of the Court
been determined at the prior hearing. Evidence was strictly limited to the issue of
visitation. Regardless of the court’s intentions, the court did not actually change
custody and award guardianship at the subsequent 9 February 2016 permanent
planning hearing. Instead, it merely changed the permanent plan for the juvenile, a
plan which still included a secondary concurrent plan of reunification. Therefore, it
was improper for the court to limit the 17 March 2016 hearing to the issue of
visitation. Consequently, because the trial court did not hold a proper hearing,
respondent was not offered the opportunity to raise an objection on constitutional
grounds. Thus, we conclude that his constitutional argument was not waived.
Accordingly, because the trial court failed to make the required findings of fact
discussed herein, the permanency planning review order and guardianship order are
reversed.
REVERSED AND REMANDED.
Judges CALABRIA and ZACHARY concur.
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