In re E.Y.B.
| Decision Date | 04 May 2021 |
| Docket Number | No. COA20-576,COA20-576 |
| Citation | 857 S.E.2d 368 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | In the MATTER OF: E.Y.B. & G.E.E.B. |
David A. Perez, for Respondent-Appellant Father.
Rachael J. Hawes, for Petitioner-Appellee Haywood County Health and Human Services.
Robert C. Montgomery, for the Guardian ad Litem.
¶ 1 This case is a juvenile matter concerning the custody of two minor children as between their father, Respondent-Father ("Respondent"); and their caretaker/custodian, "Mr. Smith."1 In this appeal from the trial court's permanency planning review order, Respondent contends that the trial court erred by (1) denying Respondent's motion for a continuance of the permanency planning hearing; (2) granting custody of the children to Mr. Smith; (3) disallowing visitation between Respondent and the children; and (4) waiving further judicial review of the children's placement with Mr. Smith. Because we conclude that Respondent cannot demonstrate that the trial court erred in any of these rulings, we affirm.
¶ 2 "Ms. Baker" is the biological mother of the two minor children at issue in this case, Emma and Grace.2 Respondent is their biological father, as confirmed by a court-ordered DNA test. Emma was born on 21 September 2015 and Grace was born on 13 December 2016.
¶ 3 Respondent has had little involvement in his children's lives. Instead, Mr. Smith has acted as the children's parent for much of their young lives. Mr. Smith was present when Emma was born in September 2015 and helped deliver her, and has been her primary caretaker since she was ten months old. Mr. Smith gained custody of Grace in January 2017 (approximately one month after her birth) pursuant to a Tennessee court order and has been her primary caretaker since that time. Mr. Smith is listed as the father on both Grace and Emma's birth certificates. Ms. Baker approves of Mr. Smith's parental role and it was at her behest that Mr. Smith signed the children's birth certificates.
¶ 4 In July 2019, Mr. Smith's home became the subject of a child welfare investigation by the Haywood County Department of Health and Human Services ("HHS"). At that time, Emma and Grace (along with their three older half-siblings)3 were all living together in Mr. Smith's home in Maggie Valley, North Carolina, while the children's mother was incarcerated. A juvenile petition filed on 11 July 2019 alleged that the children were living in an unfinished basement in unsuitable conditions, that the children lacked good hygiene, that Mr. Smith was inappropriately physically disciplining the children, and that Mr. Smith lacked adequate financial resources to care for the children. On 11 July 2019, HHS assumed custody of the children and filed a petition alleging that Emma and Grace were abused, neglected, and dependent juveniles.
¶ 5 The children were adjudicated abused, neglected, and dependent in a proceeding on 18 September 2019. Mr. Smith thereafter entered into a case plan with HHS, requiring him to obtain a mental health and substance abuse assessment, attend individual therapy and group therapy with Emma, obtain appropriate housing, and provide evidence of employment.
¶ 6 As for Respondent, his whereabouts remained largely unknown both before and after HHS assumed custody of the children. During the summer of 2019, social workers began attempting to locate Respondent by speaking with his father in Alabama, his probation officer in Georgia, and other family members. Social workers were finally able to reach Respondent by phone on 1 August 2019 to inform him that his children were in foster care in Haywood County, North Carolina. Respondent acknowledged this information, and voiced his support of Mr. Smith caring for the children, stating that he believed Mr. Smith was "a very smart and wise man" who would care for them well.
¶ 7 In another phone call on 6 August 2019, Respondent advised social workers that he wanted DNA testing on himself, Emma, and Grace to prove his paternity. After this call, however, Respondent stopped responding to any of the phone calls made by social workers trying to reach him—nor did he respond to the multiple certified letters sent to his address, or the Facebook messages that social workers sent to his social media account. Respondent had no contact with DSS for over six months. Respondent did not appear for the next scheduled nonsecure hearing for the juveniles on 27 August 2019, nor at the adjudication and disposition hearings on 18 September 2019, nor at the review and permanency planning hearing on 4 December 2019.
¶ 8 Meanwhile, as of the 4 December 2019 permanency planning hearing, the trial court found that Mr. Smith had made significant progress on his case plan and had been "compliant with all requests of [HHS]." Mr. Smith had obtained new housing, which social workers had visited and found to be appropriate for the children. He had obtained new employment and furnished proof of his income to social workers; had completed a mental health assessment and begun therapy services; and had started parenting classes and Parent Child Interactive Therapy ("PCIT") with Emma. The trial court also found that Grace and Emma were "very attached" to Mr. Smith and that he was "the only parent they know." Accordingly, at that time the trial court concluded that Mr. Smith was "willing and able to provide proper care and supervision" for Grace and Emma, and ordered that the children be placed back into Mr. Smith's custody for a trial home placement of six months, as part of their permanent plan of reunification.
¶ 9 Respondent had no contact with HHS until 25 February 2020, when he appeared at a permanency planning review hearing for the juveniles in Haywood County. He advised the trial court that he had been out of contact because he had been incarcerated in Georgia for the past several months, but that he was now residing with Ms. Baker, the children's mother, in Buncombe County. A DNA test was performed on Respondent the next day, which confirmed that Respondent was the biological father of Emma and Grace. Due to Respondent's unexpected reappearance, the trial court allowed a continuance of the matter until 11 March 2020. On 2 March 2020, Respondent was arrested in Buncombe County for felony possession of stolen property, but was soon released on bail (paid for by Ms. Baker). At the time of his arrest, he also had active arrest warrants in Tennessee and Alabama.
¶ 10 The rescheduled permanency planning hearing was held on 11 March 2020 in Haywood County District Court. Once all parties were present, Respondent's counsel made another motion to continue, asserting that he had not had adequate time to meet with Respondent and to analyze the results of Respondent's recent DNA test. The trial court denied the motion to continue, finding that it was not in the juveniles’ best interests to delay the proceedings any longer. The trial court also noted that it was disinclined to grant a continuance given that Respondent had not "had contact with [HHS] for seven months and didn't appear before the last court date." Accordingly, the hearing proceeded as planned on 11 March 2020.
¶ 11 HHS Social Worker Amanda Hooper testified that the home placement was "going really well," that Mr. Smith had continued to participate in PCIT with Emma as well as in individual therapy, and that Mr. Smith had "learned a lot of parenting skills." She reported that Mr. Smith had recently moved to a new, larger home in Buncombe County, and that she had visited his home several times and always found it to be clean and appropriate. Mr. Smith had enrolled the children in daycare, and the children were also receiving regular visits from their "grandmother" (Mr. Smith's mother), who they were quite bonded with. Social Worker Hooper reiterated that the children were "very bonded with Mr. [Smith]" and thought of him as their father, and that the children did not appear to "know who their biological father is." She stated that during each of her visits she found the children to be "appropriately dressed," "happy," "comfortable," and "well-adjusted little girls." Accordingly, Social Worker Hooper ultimately recommended that Emma and Grace "be returned to the custody of ... [Mr. Smith], at this time."
¶ 12 With regard to Respondent, Social Worker Hooper described the difficulties that HHS had experienced in getting into contact with Respondent during the lifespan of the case. She testified that she had only learned that Respondent was the children's biological father a week prior to the hearing, and that she was still in the process of creating a case plan for him to address issues of mental health, substance abuse, locating suitable employment and housing, and complying with his probation. Social Worker Hooper recommended that Respondent be allowed one hour of supervised monthly visitation with Emma and Grace until a case plan could be finalized.
¶ 13 Mr. Smith also testified at the hearing, stating that he was "elated" that the court was considering granting him legal custody of Emma and Grace. He described his extensive involvement in both children's lives since their infancy, and said that he considered them to be his daughters and felt he had "become a father to them." He stated that Respondent had come to visit Grace and Emma approximately three times during their childhood and had occasionally spoken to them on the phone, but that Respondent had never provided any money, child support, clothes, food, or supplies for the children.
¶ 14 Respondent also testified that he had lived with Emma and Ms. Baker off and on between Emma's birth and his arrest in 2016. After his release from prison in Georgia in 2017, he stated that he attempted to have his probation transferred to North Carolina but was unable to. He testified that he made an effort to "maintain somewhat adequate communication" with the children after his release and had visited them "probably about...
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