In re A.W., 280 N.C. App. 162 (2021)

Held: 
Vacated and Remanded
  • Facts: In 2018, the juvenile was adjudicated neglected and dependent due to circumstances created by domestic violence between the parents. In 2019, there was a new incident of domestic violence requiring law enforcement involvement. Since that incident, no other reports of domestic violence occurred. During the pendency of this case, the parents had another child who remained in their home (a petition was filed but was subsequently dismissed). At a 2020 permanency planning hearing, the court ordered guardianship, which achieved a permanent plan for the child, and eliminated reunification. Both parents appeal.
  • Standard of review for whether a parent’s conduct is inconsistent with their constitutional rights to care, custody, and control of their child is de novo. The court’s determination that a parent is unfit or has acted inconsistently with their constitutional rights must be supported by clear and convincing evidence. There is no bright line rule when making this determination but instead a case-by-case fact specific inquiry must be made. The “findings must reflect how the parents were unfit or acted inconsistently vis-à-vis the child.” 280 N.C. App. at 167 (quoting In re N.Z.B., 278 N.C. 445,  450). The finding must be made even when a juvenile has been previously adjudicated neglected and dependent.
  • The court did not make the required findings, and conclusions to cease reunification efforts does not address whether a parent is unfit or acted inconsistently with their constitutional rights.
    • There are few findings of fact, and they primarily focus on the parents’ history of domestic violence and the general characteristics of domestic violence. There are no findings of how the either parent acted inconsistently with their constitutional rights. Evidence showed the visits were positive and appropriate. The social workers’ concerns about potential for ongoing domestic violence are lay opinion and not expert testimony and are not clear, cogent, and convincing evidence of unfitness or conduct inconsistent with parental rights. The baby who was born during the pending of this action was never removed from the parents, and there is no explanation for how the parents can be fit and proper for one child but not for another.
  • Standard of review for eliminating reunification as a permanent plan and ceasing reunification efforts is an abuse of discretion. The court must make findings under G.S. 7B-906.2(b) and all four factors under G.S. 7B-906.2(d).
  • The findings do not support the conclusion to eliminate reunification and cease reunification efforts.
    • The findings focus on the underlying domestic violence issues. Evidence shows the parents participated in the services that addressed domestic violence, attended visits that were going well, had another child who lived with the parents, and that there were no new reports of domestic violence within the last 12 months. “It is wholly inconsistent and inexplicable for an infant to be left in the care of Respondents, but for [this juvenile] to remain in a placement….” 280 N.C. App. at 173.
    • The court did not make findings under G.S. 7B-906.2(d)(2) regarding the parent’s lack of cooperation with the plan, DSS, or the child’s GAL. Evidence showed respondents were reaching out to DSS. Regarding G.S. 7B-906.2(d)(3), evidence showed the respondents made themselves available by attending court session, visitations, and allowing home visits.
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
Findings of Fact
Tags:
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7B-906.2
domestic violence
constitutional rights