In re H.G., _ N.C. App. _ (December 17, 2024)

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Held:

Affirmed

Facts: This is the third appeal involving father and his three children. The children were adjudicated abused, neglected and dependent based on Father sexually abusing the youngest child, abusing the two older children, and Father’s nephew sexually abusing the two older siblings. The disposition hearings were bifurcated due to Father seeking reunification with the youngest child only. At the disposition hearing for the youngest child, the court continued custody with DSS, relieved DSS of the obligation to make further reasonable efforts toward reunification, and found reunification was not in the best interest of the child due to Father’s sexual abuse. Father appealed the adjudication order (the second appeal), which the court of appeals vacated and remanded for the trial court to make findings of fact resolving conflicting evidence and gave the court discretion to hold an additional hearing on evidentiary matters. The trial court conducted a hearing on remand to discuss the procedural posture of the case and entered new adjudication and disposition orders continuing custody of the child with DSS, providing for no visitation between Father and the youngest child, and again ceasing reunification efforts based on Father’s sexual abuse. Father appeals, arguing the trial court abused its discretion by eliminating reunification as a permanent plan at initial disposition and arguing he did not receive proper notice. Father further argues that the trial court abused its discretion by not holding a new hearing on remand.
“[W]hen a party fails to appeal a ruling on a particular issue, he is then bound by that failure and may not revisit the issue in subsequent litigation.” Sl. Op. at 8 (citation omitted). Father did not raise the issues of notice or elimination of reunification as a permanent plan at initial disposition in his prior (second) appeal. Since the events that gave rise to the issues occurred at the disposition hearing that took place before Father’s second appeal, and the issues were unchallenged in that appeal, Father waived his right to appeal the issues in this subsequent appeal. However, the court examined the issue assuming, arguendo, Father’s appeal was properly before the court.
Dispositional choices are reviewed for an abuse of discretion.
The initial dispositional hearing was not a permanency planning hearing, but an order at initial disposition that relieves DSS of reunification efforts impacts a court’s subsequent permanency planning order. “[G.S.] 7B-906.2(b) operates to exclude reunification as a permanent plan once the trial court makes findings of aggravated factors under [G.S.] 7B-901(c) at [initial] disposition.” Sl. Op. at 9, citing In re R.G., 292 N.C. App. 572 (2024). G.S. 7B-906.2(b) permits exclusion of reunification from a child’s permanent plans “at any time, including immediately following disposition,” such that reunification “need not be a permanent plan for a juvenile, at all, if findings were made under [G.S.] 7B-901(c).” Sl. Op. at 10, citing In re R.G., 292 N.C. App. at 579.
Notice was not required to exclude reunification as a permanent plan at initial disposition under G.S. 7B-901(d), as notice is only required for permanency planning hearings. Counsel’s argument that notice is customarily given “is not a substitute for statutory compliance.” Sl. Op. at 11.
The trial court did not abuse its discretion by choosing not to hold an additional hearing on remand. The court of appeals gave the trial court discretion on whether to hold another hearing to make additional findings. The trial court determined the evidence presented at the initial disposition hearing was sufficient to make the required findings that Father sexually abused the child and to cease reasonable efforts. The court was not required to receive new evidence and any evidence offered by Father of his actions taken since the action commenced would not have changed the sexual abuse finding.