In re J.M., 384 N.C. 584 (2023)
Held:
Reversed
There is a dissent
in part, concur in part by Morgan, J.; dissent by Earls, J.
- Facts: In 2019, the juvenile infant was adjudicated abused and neglected and the older sibling was adjudicated neglected. The circumstances resulted from life-threatening nonaccidental injuries to the infant who had rib fractures, brain bleeds, and retinal hemorrhages that were caused while in the sole care of her parents who closely supervised contact between the infant and their other children and others. The parents subsequently separated. Both were ordered to comply with case plans. At permanency planning hearings, the court acknowledged respondents’ progress on their case plan, including completing services, but cautioned that their failure to explain the injuries was a barrier to reunification. Ultimately, the court eliminated reunification as a permanent plan despite the parents’ progress and an increase in visitation because of their failure to acknowledge how the child was so severely injured. Mother also believed that she should share custody with the father and that she had no concerns about the children being alone with him now. The court found that reunification efforts would clearly be unsuccessful and inconsistent with the children’s health and safety. Respondents’ appealed. The court of appeals reversed the trial court's decision and held that a precondition to reunification of admitting fault without finding the parent’s forfeited their constitutional rights to care, custody, and control of their children was unlawful. The court of appeals also found DSS did not make reasonable efforts because it did not interview the two oldest children (who were not subject to the action), which may have provided an explanation for the injuries. The supreme court granted a petition for discretionary review.
- Standard of review of a permanency planning order is whether there is competent evidence to support the findings and whether the findings support the conclusion of law. “Competent evidence is evidence that a reasonable mind might accept as adequate to support the findings.” Sl.Op. 10. The court may consider any evidence that is relevant, reliable, and necessary to determine the juvenile’s needs and the appropriate disposition. The disposition is reviewed for an abuse of discretion. “In the rare instances when a reviewing court finds an abuse of . . .discretion, the proper remedy is to vacate and remand for the trial court to exercise its discretion. The reviewing court should not substitute its own discretion for that of the trial court.” Sl.Op. 11 (citation omitted).
- Reunification as a primary or secondary plan is not absolute because the court may eliminate reunification as a permanent plan when it makes the required findings under G.S. 7B-906.2. Those findings do not have to track the exact language of the statute but the findings must show “that the trial court considered the evidence in light of whether reunification would be [clearly unsuccessful] or would be inconsistent with the juvenile’s health, safety, and need for a safe, permanent home within a reasonable period of time.” Sl.Op. 14-15 (citation omitted).
- When reviewing whether DSS made reasonable efforts, defined at G.S. 7B-101(18), the court of appeals was bound by precedent that required it to treat the findings of fact in the adjudication order, which was not appealed, as binding. The appeal was of the permanency planning order and should not have been transformed to a collateral attack on the adjudication order. The adjudication order found no one other than the parents could have inflicted the serious injuries on the juvenile.
- Similar to In re D.W.P., 373 N.C. 327 (2020) (a TPR case), the evidence supports the findings and conclusion that “the respondents’ persistent unwillingness to acknowledge responsibility for [the infant’s] life-threatening injuries would render further efforts at reunification clearly unsuccessful and ‘inconsistent with the [juvenile’s] health or safety.’ ” Sl.Op. 26-27. Further, unlike a TPR order, a permanency planning order that eliminates reunification “does not foreclose the possibility that one or both respondents might one day regain custody” of their children. Sl.Op. 26. This opinion cautions the holding is based on the facts of the case and does not stand for the proposition that a parent’s refusal to acknowledge responsibility for the abuse will always result in a conclusion that reunification efforts will be clearly unsuccessful or inconsistent with the child’s health or safety.
- Parents were on notice that the court was considering eliminating reunification as a permanent plan and did not argue the proposed change eliminating reunification would be improper on constitutional grounds. The issue was not preserved for appellate review.
- Concur in part; Dissent in part:
- Concur that court did not err in eliminating reunification for father, the failure to preserve for appeal, and the discussion on reasonable efforts.
- Dissent as to eliminating reunification for mother. The court’s findings of mother’s lack of explanation for the injuries is insufficient to conclude reunification efforts would be clearly unsuccessful or inconsistent with the juvenile’s health and safety. Mother took reasonable step to ensure the children’s well-being, including separating from father, substantially complied with her case plan, acknowledged the child suffered nonaccidental harm although she did not know how, and engaged with all the required services. Mother’s steps to correct the conditions distinguish these facts from In re D.W.P.
- Dissent: The findings are insufficient to support the conclusion that reunification efforts with mother would clearly be unsuccessful or inconsistent with the children’s health and safety. Mother complied with her case plan, which included drug screens, substance use treatment, domestic violence and life skills classes, parenting skills, employment, and separated from father. The sole fact is the parents not explaining how the child was injured. This fact alone is insufficient. The parents maintained that they did not know how the child was injured. This is beyond their control. Unlike In re D.W.P., the parents did not provide absurd explanations for the child’s injuries, and they did take remedial steps and demonstrated growth. These are relevant factors the court should have considered in applying a holistic approach. DSS could have provided more evidence about the cause of the child’s injuries, like testimony from the older siblings.
Category:
Abuse, Neglect, DependencyStage:
Cease ReunificationTopic:
Findings of Fact