In re T.S., III, ___ N.C. App. ___ (December 3, 2024), overruled in part by In re K.C., ___ N.C. ___ (December 13, 2024)
Held:
Vacated and Remanded
- Facts: Mother appeals a permanency planning order awarding guardianship of her two children to their paternal grandmother. The children were adjudicated neglected based on improper care and supervision for which Mother was criminally charged. Permanency was achieved when the court awarded guardianship to the children’s paternal aunt and uncle. Over a year later, the court dissolved the guardianship and placed the children with their paternal grandmother. At subsequent permanency planning hearings Mother was found to have made progress on her case plan, though she tested positive at one drug screening, was not regularly visiting the children, and had not completed a mental health assessment. The court changed the primary permanent plan to guardianship with a relative with a secondary plan of reunification. DSS and the GAL submitted reports requesting guardianship be awarded to the grandmother. During the following permanency planning hearing, Mother specifically argued it was premature to consider guardianship in light of her recent progress and that awarding guardianship would block reunification with her children. The trial court found by clear and convincing evidence Mother was unfit and acted inconsistently with her constitutionally-protected status as a parent and awarded guardianship to grandmother. Mother challenges several findings as unsupported by the evidence and argues the findings do not support the determination that she is unfit and acted inconsistently with her status as a parent.
- Whenever custody is awarded to a nonparent, “a finding that a parent is unfit or acted inconsistent with their constitutionally protected status [at that time] is nevertheless required, even when a juvenile has previously been adjudicated neglected and dependent.” Sl. Op. at 18 (citation omitted). A parent’s argument as to their constitutional right to the custody of their child may be waived on review if the issue is not raised at the trial court first. Appellate Rule 10. Mother argued against the guardianship because it was premature and Mother should be allowed to continue making progress on her case plan. Mother did not waive her right to review because a parent cannot object to findings of facts and conclusions made in a written order entered after the hearing concluded. “If a party has presented evidence and arguments in support of her position at trial, has requested that the trial court make a ruling in her favor, and has obtained a ruling from the trial court, she has complied with the requirements of Rule 10 and she may challenge that issue on appeal.” Sl. Op. at 7-8, citing In re B.R.W., 278 N.C. App. 382, 399 (2021), aff’d 381 N.C. 61 (2022)).
- Author’s note: This holding is overruled by In re K.C., ___ N.C. ___ (December 13, 2024), published ten days after this opinion. The court of appeals did not discuss the supreme court’s holdings in In re J.M., 384 N.C. 584 (2023) and In re J.N., 381 N.C. 131 (2022) regarding waiver on this issue. In these cases, the fathers waived their review of the issue when they were on notice that a permanent plan other than reunification was being recommended and argued for reunification at the permanency planning hearing. The supreme court held that the fathers failed to raise their constitutional rights when they had the opportunity to do so. Theses opinions were addressed by the supreme court in In re K.C. In In re K.C., the supreme court held that parents must object on constitutional grounds and articulate their basis for the constitutional claim to preserve the issue for appeal, and explicitly overruled the preservation holding in In re B.R.W. and holdings of resulting court of appeals cases that follow it. See In re K.C., ___ N.C. ___, Sl. Op. at 13.
- The court of appeals rejected DSS’s argument that the doctrine of collateral estoppel waived Mother’s constitutional argument when the trial court granted the first guardianship two years earlier. The trial court’s prior order awarding guardianship did not include a finding or conclusion Mother was unfit or acted inconsistently with her constitutionally-protected status as a parent. Even if the determination had been made, it would not be dispositive of whether Mother was acting inconsistently with her protected status at the time the court awarded guardianship to grandmother in the order that is currently on appeal.
- Appellate courts review a permanency planning order to determine whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. G.S. 7B-906.1 allows the court to consider any evidence that is “relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” G.S. 7B-906.1(c). Conclusions of law are reviewed de novo.
- Some of the challenged findings of fact are supported by the evidence. The trial court weighs the evidence and determines credibility. Other findings of fact are unsupported by the evidence and are disregarded. “[T]he trial court did not credit uncontested evidence or adjudicate the competent conflicting evidence to support a conclusion Respondent-mother had not made adequate progress.” Sl. Op. at 16. These findings relate to the court’s conclusions about mother acting inconsistently with the children’s health and safety and whether future reunification with mother would be successful or inconsistent with the children’s need for a safe, permanent home within a reasonable period of time.
- The determination that a parent is unfit or acted inconsistently with their constitutionally-protected status as a parent is a conclusion of law reviewed de novo to determine “whether the findings of fact cumulatively support the conclusion and whether the conclusion is supported by clear and convincing evidence.” Sl. Op. at 6-7 (citation omitted). In this case, Mother’s uncontested evidence regarding her progress and behaviors viewed cumulatively with the remaining supported findings do not support a conclusion that she is unfit or forfeited her constitutionally-protected parental status to award guardianship and cease further hearings.
- The supreme court has recently stated in In re A.J., 386 N.C. 409 (2024) that when a reviewing court determines the findings of fact are insufficient, the court must then examine whether there is sufficient evidence in the record that could support the necessary findings, and if so, vacate the trial court’s order and remand for entry of a new order. Here, the court of appeals vacated and remanded for further findings and proceedings.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights