In re B.G.

• Decision Date: 16 June 2009
• Docket Number: No. COA08-1448.,COA08-1448.
• Citation: 677 S.E.2d 549
• Parties: In the Matter of B.G.
• Court: North Carolina Court of Appeals

677 S.E.2d 549

In the Matter of B.G.

No. COA08-1448.

Court of Appeals of North Carolina.

June 16, 2009.

Appeal by Respondent-father from order entered 8 October 2008 by Judge James T. Hill in District Court, Durham County. Heard in the Court of Appeals 5 May 2009.

Deputy County Attorney Thomas W. Jordan, Jr., for petitioner-appellee Durham County Department of Social Services.

Poyner Spruill LLP, by John W. O'Hale, Raleigh, for guardian ad litem-appellee.

Appellate Defender, Staples S. Hughes, by Assistant Appellant Defender Annick Lenoir-Peek, for respondent-appellant.

WYNN, Judge.

This appeal follows our decision in In re Beth, ___ N.C.App. ___, 663 S.E.2d 12, 2008 WL 2736511 (2008) (unpublished), wherein we set forth the facts as follows:

In 2005, Beth's mother gave birth prematurely to twins who tested positive for cocaine at birth. The mother also tested positive for cocaine and was reported to have used cocaine on the day of the delivery. She delivered the first baby at Genesis House, while the second baby was delivered at Duke University Medical Center.

On 5 October 2005, the Durham County Department of Social Services ("DSS") filed a petition alleging that Beth, a second daughter, and the twins were neglected based primarily on the mother's drug use and her unstable housing.[ ]

DSS did not, in this petition, seek nonsecure custody because the mother was allowing the two older children to live with their maternal aunt, Monica Edwards, and the twins to live with Rose Jones. Previously, Beth and her sister were living with their mother at Genesis House.

On 18 October 2005, as a result of changed circumstances, DSS filed a motion for nonsecure custody, seeking an order granting DSS custody with placement to be with the mother so long as she remained drug and alcohol free, maintained stable housing, continued individual therapy, and accepted mental health services for herself and her two older daughters. On the same date, the trial court entered an order granting the relief sought by DSS. On 27 October 2005, the trial court granted respondent visitation with Beth to be arranged by DSS. On 27 January 2006, all four children were adjudicated neglected "in that the children do not receive proper care from their mother" and "live in an environment injurious to the children's welfare in the care of the mother." With respect to respondent, the trial court found that respondent was interested in obtaining custody or extensive visitation with Beth. The court noted that it had previously ordered that respondent have visitation with Beth, but "the mother choose [sic] not to comply with the court's order" and "[s]he did not have an acceptable reason for her willful noncompliance with" the order. The trial court further found that the fact respondent had "little recent contact" with Beth led to or contributed to the court's decision to remove custody from respondent, but added that "[t]he mother has had custody and has willfully refused to allow visits."

The trial court ordered that it was in the best interests of the children that they be placed in the custody of DSS with authorization for a trial placement with the mother so long as she complied with specified conditions. The trial court ordered unsupervised visitation between respondent and Beth and directed respondent to develop a plan of care for Beth.

On 24 March 2006, however, the trial court approved temporary placement of Beth with her maternal aunt and uncle, Daniel and Monica Edwards, because the mother had been incarcerated. Following additional review and permanency planning hearings, the trial court continued Beth's placement with Daniel and Monica Edwards, but provided for additional visitation with respondent. Following a review hearing on 23 May 2006, the trial court entered an order on 25 July 2006, finding that although Beth desired to continue to live with Mr. and Mrs. Edwards, DSS' permanent plan for Beth was reunification with respondent. The trial court noted that there had been a positive home study on respondent's home and "[n]ow is the best time to attempt a transition into the home of the [respondent.]" Accordingly, the trial court ordered that respondent have weekend visitation every other weekend and periods of two-week visitation during Beth's summer vacation.

Following a permanency planning hearing on 17 July 2007, the trial court entered an order on 11 October 2007, concluding that it was in the best interests of Beth that she continue in the physical custody of Mr. and Mrs. Edwards, that she be placed in the joint legal custody of respondent and the Edwardses, that Beth have a structured plan of visitation with respondent, and that DSS be relieved of reunification efforts with the mother. The trial court ordered that DSS and Beth's guardian ad litem be relieved of their duties as to Beth and that the case be closed and removed from the active juvenile docket. Respondent timely appealed from this order.

On review, this Court reversed the 11 October 2007 order for insufficient findings of fact pursuant to N.C. Gen.Stat. § 7B-907 (2007) and remanded for further proceedings. Id. Thereafter, on 8 October 2008, the trial court entered a new permanency planning order, making additional findings of fact but reaching the same conclusions as in its 11 October 2007 order.

Respondent-father now appeals from the 8 October order arguing that the trial court erred by (I) granting custody of the minor child to the Edwardses (non-parent relatives) over Respondent (parent) without making adequate findings of fact and conclusions of law; and (II) failing to make findings of fact in accordance with sections 7B-907(b), (c), and (f).

I.

As in the earlier appeal to this Court, Respondent argues that the trial court erred by granting custody to the Edwardses (non-parent relatives) over Respondent (parent) without making adequate findings of fact and conclusions of law. However, we did not address this issue in our earlier opinion noting that:

We cannot, however, determine whether this issue was raised below. "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). The recording device at the trial of this case malfunctioned and did not record the hearing. The parties prepared a narration of the proceedings that recited the testimony of each witness, but did not reflect the arguments of counsel. While neither of the appellees has argued that respondent failed to make his constitutional argument at trial, the trial court did not address the issue in its order. We, therefore, leave the issue to be addressed in the first instance by the trial court on remand.

In re Beth, ___ N.C.App. ____, 663 S.E.2d 12, 2008 WL 2736511 (2008) (unpublished).

Upon considering this issue on remand, the trial court made the following conclusions of law, regarding custody:

6. [Respondent] has a constitutional right to the care and custody of his daughter [Beth], and the issue of his right to the care and custody of his daughter was specifically argued before the court. However, the Court believes the child's wishes are to be considered and it is in her best interest to be placed with a third party, the Edwardses.

7. When balancing the constitutional rights of a non offending parent who has not acted inconsistently with that constitutionally protected right to the care and custody and control of the child against those of a third person with the best interest of the child, the court should resolve the issue in favor of what is in the best interest of the child.

(emphasis added). According to its order, the trial court ultimately balanced the rights of the Respondent "against those of a third person with the best interest of the child[,]" and determined that it was in the best interest of Beth to grant custody to the Edwardses, the child's nonparent relatives.

Contrary to the trial court's conclusions otherwise, 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. See, e.g., Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (holding the "best interest of the child" test may be applied without offending due process rights if the court also finds conduct inconsistent with a parent's constitutionally protected status); see also Adams v. Tessener, 354 N.C. 57, 61-62, 550 S.E.2d 499, 502 (2001).

Here, the trial court concluded that it was in the best interest of Beth to remain with the Edwardses but failed to issue findings to support the application of the best interest analysis—namely that Respondent acted inconsistently with his custodial rights. Although there may be evidence in the record to support a finding that Respondent acted inconsistently with his custodial rights, it is not the duty of this Court to issue findings of fact. Rather, our review "is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law." In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004). Accordingly, we must reverse the order awarding custody to the minor child's non-parent relative and remand for reconsideration in light of this opinion.

II.

Respondent also argues that the trial court's order failed to make sufficient findings of fact with regard to sections 7B-907(b), (c), and (f). We review the court's order in light of these arguments, addressing each subsection of the statute in turn.

A.

Section 7B-907(b) of the North Carolina General Statutes provides, in part:

At the conclusion of the hearing, if the juvenile is not returned home, the court shall...