IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-819
Filed: 6 March 2018
Onslow County, No. 14 JA 194
IN THE MATTER OF: D.A.
Appeal by respondents from order entered 12 May 2017 by Judge Sarah C.
Seaton in Onslow County District Court. Heard in the Court of Appeals 15 February
2018.
Richard Penley for petitioner-appellee Onslow County Department of Social
Services.
Miller & Audino, LLP, by Jay Anthony Audino, for respondent-appellant
mother.
Julie C. Boyer for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by E. Bahati Mutisya, for guardian ad
litem.
TYSON, Judge.
Respondent-parents appeal from an order granting full physical and legal
custody of their child, D.A., to court-approved caretakers. We vacate and remand.
I. Background
Respondents are married and both serve as active-duty marines in the United
States Marine Corps. D.A. was born in June 2014. On 9 July 2014, Respondents
sought medical treatment for D.A. after Respondent-father observed dried blood in
IN RE: D.A.
Opinion of the Court
D.A.’s mouth and nose. D.A. was hospitalized for over two weeks while being treated
for a pulmonary hemorrhage.
Respondents sought further medical care for D.A. on 16 September 2014. D.A.
was evaluated for possible maltreatment and a blood disorder. A skeletal survey
revealed a healing rib fracture, which was not present in an earlier skeletal survey
in July 2014. After a medical evaluation, D.A. was diagnosed as suffering from child
physical abuse.
Following an investigation by law enforcement, Respondent-mother was
charged with felony assault inflicting serious bodily injury, felony child abuse, and
misdemeanor contributing to the delinquency of a juvenile. Respondent-father was
charged with misdemeanor contributing to the delinquency of a juvenile.
Respondent-mother subsequently pled guilty to misdemeanor child abuse.
Respondent-father’s charge was dismissed.
On 22 September 2014, the Onslow County Department of Social Services
(“DSS”) filed a juvenile petition, alleging that D.A. was abused and neglected. DSS
obtained nonsecure custody of D.A. the same day. Following a hearing, the trial court
entered an order on 15 June 2015 adjudicating D.A. as an abused and neglected
juvenile. Respondents were ordered to submit to mental health and psychological
evaluations, follow all resulting recommendations, and complete parenting classes.
The trial court held a permanency planning hearing on 13 January 2016, after which
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the court entered an order establishing a primary permanent plan of reunification
“with a parent, with a secondary plan of custody with a relative or court-approved
caretaker.” After a 31 August 2016 permanency planning hearing, the trial court
entered an order on 12 May 2017, which granted custody of D.A. to his foster parents
and waived further review. Respondents timely filed notice of appeal.
II. Issues
Respondent-father contends the trial court erred by: (1) finding and concluding
that he had acted inconsistently with his constitutionally protected status as a
parent; (2) finding that returning the juvenile to the home of his parents would be
contrary to the juvenile’s best interests; (3) placing the juvenile in the custody of the
foster parents as the most reasonable permanent plan; and, (4) ruling that it would
be in the best interests of the juvenile for him to be placed in the full legal and
physical custody of the foster parents.
Respondent-mother contends: (1) the trial court’s findings were not supported
by clear, cogent, and convincing evidence and it failed to make the necessary findings
of fact to cease reunification efforts with Respondent-mother and to grant custody to
D.A.’s foster parents; and, (2) the evidence presented at the permanency planning
hearing did not support the trial court’s finding that Respondent-mother has
unresolved mental health issues, and the trial court abused its discretion to make
such a finding.
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III. Standard of Review
“A trial court must determine by ‘clear and convincing evidence’ that a parent’s
conduct is inconsistent with his or her [constitutionally] protected status.” Weideman
v. Shelton, ___ N.C. App. ___, ___, 787 S.E.2d 412, 417 (2016) (citation omitted), disc.
review denied, 369 N.C. 481, 795 S.E.2d 367 (2017). “This Court reviews an order
that ceases reunification efforts to determine whether the trial court made
appropriate findings, whether the findings are based upon credible evidence, whether
the findings of fact support the trial court’s conclusions, and whether the trial court
abused its discretion with respect to disposition.” In re C.M., 183 N.C. App. 207, 213,
644 S.E.2d 588, 594 (2007).
Our review of “[w]hether . . . conduct constitutes conduct inconsistent with the
parents’ [constitutionally] protected status” is de novo. Rodriguez v. Rodriguez, 211
N.C. App. 267, 276, 710 S.E.2d 235, 242 (2011) (citation omitted). Under this review,
we “consider[ ] the matter anew and freely substitute[ ] [our] judgment for that of the
lower tribunal.” In re A.K.D., 227 N.C. App. 58, 60, 745 S.E.2d 7, 8 (2013) (citation
omitted).
IV. Analysis
A. Respondent-Father’s Appeal
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Respondent-father argues that the trial court erred in finding and concluding
that he acted inconsistently with his constitutionally protected status as a parent.
We agree.
“A natural parent’s constitutionally protected paramount interest in the
companionship, custody, care, and control of his or her child is a counterpart of the
parental responsibilities the parent has assumed and is based on a presumption that
he or she will act in the best interest of the child.” Price v. Howard, 346 N.C. 68, 79,
484 S.E.2d 528, 534 (1997) (citations omitted). “[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.” In re D.M.,
211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (alteration in original) (quoting
David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005)). As is present
here, “to apply the best interest of the child test in a custody dispute between a parent
and a nonparent, a trial court must find that the natural parent is unfit or that his
or her conduct is inconsistent with a parent’s constitutionally protected status.” In re
B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009).
DSS and the guardian ad litem (“GAL”) argue that, because custody was
granted from a non-parent (DSS) to a non-parent (the foster parents), the trial court
did not need to find that the parents had acted inconsistently with their
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constitutionally protected status prior to awarding permanent custody to the foster
parents. In support of this position, they cite In re J.K., 237 N.C. App. 99, 766 S.E.2d
698, 2014 WL 5335274 (2014) (unpublished). In In re J.K., this Court held that the
trial court was not required to find that the parents were unfit or had acted
inconsistently with their constitutionally protected status before transferring custody
because “the court in the order under review did not transfer legal custody from a
parent to a nonparent, but instead transferred legal and physical custody from DSS
to a relative.” Id. at 2014 WL 5335274 *5-6.
As an initial issue, DSS and the GAL fail to inform this Court of the In re J.K
opinion’s unpublished status, in violation of N.C. R. App. P. 30(e)(3). Moreover, DSS
and the GAL fail to acknowledge the next statement in the opinion that “[w]e note,
nonetheless, that at the time when the court awards permanent custody of [the
juvenile], it must make these determinations prior to awarding custody to a
nonparent.” Id. at 2014 WL 5335274 *6 (emphasis supplied).
Because the trial court awarded de facto permanent custody of D.A. to the
foster parents and waived further review, the trial court was first required to find
that the parents were either unfit or had acted inconsistently with their
constitutionally protected status as parents. See In re P.A., 241 N.C. App. 53, 56, 66-
67, 772 S.E.2d 240, 243, 249 (2015) (instructing the trial court on remand to make
findings regarding whether the respondent had lost her constitutionally protected
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right of control over her child after the trial court had initially failed to do so when
transferring custody from DSS to a nonparent).
In awarding permanent custody of D.A. to his foster parents, the trial court
found and concluded that “[R]espondents have acted inconsistently with their
constitutionally protected status as parents.” In support of this finding and
conclusion, the trial court found that
this juvenile has been in the custody of [DSS] for nearly
two years, and in that time, 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.
Respondent-father contends that the trial court held him responsible for D.A.’s
injuries, despite a lack of any evidence tending to show Respondent-father caused or
knew the cause of D.A.’s injuries. The trial court’s findings are insufficient to support
a conclusion that Respondent-father was unfit or had acted inconsistently with his
constitutionally protected status as a parent.
In the case of In re Y.Y.E.T., 205 N.C. App. 120, 695 S.E.2d 517, disc. review
denied, 364 N.C. 434, 703 S.E.2d 150 (2010), the trial court held both the respondent-
parents responsible for the juvenile’s injury where the court made findings that the
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injury was non-accidental, the parents were the sole caregivers for the juvenile when
she sustained her injury, neither parent explained nor took responsibility for the
juvenile’s injury, and the trial court could not “separate the parents as to culpability.”
Id. at 124-25, 695 S.E.2d at 520.
In affirming the trial court’s order, this Court stated that, “[a]s the child’s sole
care providers, it necessarily follows that Respondents were jointly and individually
responsible for the child’s injury. Whether each Respondent directly caused the
injury by inflicting the abuse or indirectly caused the injury by failing to prevent it,
each Respondent is responsible.” Id. at 129, 695 S.E.2d at 522-23.
By contrast, in the present case, the trial court failed to make any finding that
the juvenile’s injuries were non-accidental or that Respondents were the sole
caregivers for D.A. when he sustained his injuries. Moreover, even if the trial court
intended to find that Respondents were the sole caregivers when D.A. suffered non-
accidental injuries, the court’s findings are unclear of which parent or parents the
court assigned responsibility.
The trial court’s finding that the “injuries . . . occurred to the juvenile while he
was in [Respondents’] care” could suggest that the court intended to hold both parents
responsible for D.A.’s injuries. However, the findings next state 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
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maintain that she did not inflict the juvenile’s injuries.” This finding suggests the
trial court looked to Respondent-mother as the cause for D.A.’s injuries.
The trial court’s findings do not explain how Respondent-father was culpable
for D.A.’s injuries, unfit, or otherwise acted inconsistently with his constitutionally
protected status as a parent to support its conclusion. Absent clear findings, based
upon clear, cogent, and convincing evidence, demonstrating how Respondent-father
acted inconsistently with his constitutionally protected status, the trial court erred
in awarding permanent custody of D.A. to the foster parents. We vacate and remand
for a new hearing.
Respondent-father additionally challenges one of the trial court’s findings of
fact as unsupported by the evidence. We need not review Respondent-father’s
remaining arguments because of our holding that the trial court’s findings do not
support its ultimate finding and conclusion that Respondent-father acted
inconsistently with his constitutionally protected status as parent.
B. Respondent-Mother’s Appeal
Respondent-mother first contends that the trial court lacked clear, cogent, and
convincing evidence and necessary findings of fact to cease reunification efforts with
Respondent-mother and grant permanent custody to D.A.’s foster parents. In
response, DSS and the GAL contend that the trial court did not cease reunification
efforts in the order.
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We agree with Respondent-mother that the permanent order, without further
scheduled hearings, effectively ceases reunification efforts. In the case of In re N.B.,
240 N.C. App. 353, 771 S.E.2d 562 (2015), this Court held that the trial court ceased
reunification efforts in the permanency planning order despite not explicitly doing so
by “(1) eliminating reunification as a goal of [the juveniles’] permanent plan, (2)
establishing a permanent plan of guardianship with [the prospective guardians], and
(3) transferring custody of the children from [Youth and Family Services] to their
legal guardians.” Id. at 362, 771 S.E.2d at 568.
In this case, the order eliminated reunification as a goal of D.A.’s permanent
plan, established a permanent plan of full legal and physical custody with the foster
parents, and transferred custody of the child to the foster parents. In addition, the
order waived regular periodic reviews and released all the attorneys for the parties
and the GAL. While the trial court’s order may not have explicitly ceased
reunification efforts, these actions show its effect, in fact and in law, was to waive
further review and cease reunification efforts.
1. Ceasing Reunification
We must now consider whether the trial court’s order contains the necessary
statutory findings to cease reunification efforts. Under our statutes: “Reunification
shall remain a primary or secondary plan unless the court made findings under G.S.
7B-901(c) or makes written findings that reunification efforts clearly would be
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unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen.
Stat. § 7B-906.2(b) (2017). Here, the trial court failed to make findings under N.C.
Gen. Stat. § 7B-901(c) (2017). The court could only cease reunification efforts after
finding that those efforts clearly would be unsuccessful or would be inconsistent with
the juvenile’s health or safety.
2. Statutory Requirements
In order to cease reunification efforts in this way, the statute requires:
the court shall make written findings as to each of the
following, which shall demonstrate lack of success:
(1) Whether the parent is making adequate progress
within a reasonable period of time under the plan.
(2) Whether the parent is actively participating in or
cooperating with the plan, the department, and the
guardian ad litem for the juvenile.
(3) Whether the parent remains available to the court,
the department, and the guardian ad litem for the juvenile.
(4) Whether the parent is acting in a manner
inconsistent with the health or safety of the juvenile.
N.C. Gen. Stat. § 7B-906.2(d).
Here, the trial court made findings related to the factors listed in N.C. Gen.
Stat. § 7B-906.2(d)(1)-(3), all of which were largely favorable to Respondents. The
trial court failed to make findings related to whether Respondents were acting in a
manner inconsistent with D.A.’s health or safety. The order also contains no findings
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that embrace the requisite ultimate finding that “reunification efforts clearly would
be unsuccessful or would be inconsistent with the juvenile’s health or safety.”
While the order does state that “the home remains an injurious environment”
and that “a return home would be contrary to the best interests of the juvenile,” these
findings are not tantamount to a finding that reunification efforts would be
unsuccessful or inconsistent with D.A.’s health or safety. These findings appear to
be more directed at Respondent-mother’s failure to admit she had caused D.A.’s
injuries after pleading guilty to misdemeanor child abuse. The trial court failed to
make the requisite findings required to cease reunification efforts. N.C. Gen. Stat. §
7B-906.2(d) clearly requires the trial court to do so before it ceases reunification
efforts. We vacate the trial court’s order and remand for further proceedings.
Respondent-mother also challenges one of the findings as lacking in
evidentiary support. In light of our holding, we need not review that challenge. We
determine the trial court’s findings do not support its decision to cease reunification
efforts and make custody of D.A. with the foster parents permanent.
V. Conclusion
We vacate the trial court’s order and remand for further proceedings. With
respect to Respondent-father, the trial court is to make the statutory findings to
determine whether Respondent-father is unfit or has acted inconsistently with his
constitutionally protected status, and, if so, how. With respect to Respondent-mother,
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the trial court is to also make the necessary statutory findings and conclusions to
determine whether to cease reunification efforts. All findings must be supported by
clear, cogent and convincing evidence. It is so ordered.
VACATED AND REMANDED.
Judges CALABRIA and DAVIS concur.
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