In re A.C., COA20-508

Docket NºCOA20-508
Citation868 S.E.2d 113, 280 N.C.App. 301
Case DateNovember 16, 2021
CourtCourt of Appeal of North Carolina (US)

280 N.C.App. 301
868 S.E.2d 113

In the MATTER OF: A.C.

No. COA20-508

Court of Appeals of North Carolina.

Filed November 16, 2021


Jennifer G. Cooke, for petitioner-appellee New Hanover County Department of Social Services.

Benjamin J. Kull, Raleigh, for respondent-appellant father.

Administrative Office of the Courts, by Guardian Ad Litem Appellate Counsel Matthew D. Wunsche, for guardian ad litem.

GORE, Judge.

¶ 1 Respondent-father appeals from an Order concluding he acted inconsistently with his constitutional rights as a parent and granting guardianship of the juvenile to the juvenile's foster parents. Because the trial court erred by applying an improper evidentiary standard and failed to make the statutorily required findings before ceasing

868 S.E.2d 115

reunification efforts toward guardianship, we vacate and remand for a new permanency planning hearing.

I. Background

¶ 2 In its Order on Adjudication and Disposition filed 29 April 2016 ("April 2016 Order"), the trial court adjudicated the juvenile ("Andy")1 dependent and neglected as defined by N.C. Gen. Stat. §§ 7B-101(9) and (15) based on "the stipulation of the Respondent-Parents, Guardian ad Litem ("GAL") and [New Hanover County Department of Social Services]." N.C. Gen. Stat. §§ 7B-101(9), (15) (2019). Subsequently, respondent-mother voluntarily relinquished her rights, and respondent-father's parental rights were involuntarily terminated in the trial court's Order Terminating Parental Rights filed 11 October 2017 ("October 2017 Order").

¶ 3 Respondent-father appealed the judicial termination of his parental rights. This Court vacated the October 2017 Order due to service deficiencies in an opinion filed on 5 June 2018. In re A.J.C. , 259 N.C. App. 804, 817 S.E.2d 475 (2018). Respondent-mother subsequently revoked her voluntary relinquishment of her parental rights. In the Subsequent Permanency Planning Hearing Order filed 15 October 2018 ("October 2018 Order"), the trial court found respondent-father was eagerly pursuing reunification with Andy and had participated in a residential substance abuse treatment program, despite not producing records or signing releases to show his case plan progress. Andy remained in foster care and had been diagnosed with many mental health conditions. In the October 2018 Order, the trial court changed the permanent plan from adoption to a permanent plan of "guardianship with a court approved caretaker with a concurrent plan of reunification."

¶ 4 In its Subsequent Permanency Planning Hearing Order filed 30 April 2019, the trial court found respondent-father continued to cooperate with DSS, receive substance abuse treatment and pass drug tests, maintain safe and appropriate housing, and to attain adequate finances. However, the trial court subsequently reviewed a GAL September 2019 report indicating that respondent-father's therapy had not resulted in him modifying his behavior regarding boundaries, consistent action regarding Andy, and displays of physical affection that made Andy uncomfortable. The trial court also considered the following corresponding testimony from a counselor, psychologist, DSS employee, and respondent-father at the 26 September 2019 permanency planning hearing: Andy had negative reactions after visits with respondent-father; respondent-father tested positive for a prescribed medication only once, suggesting he may not have been taking his prescription medications; instances where respondent-father did not adequately supervise Andy during visits; respondent-father was not aware of the medication Andy was taking despite attending doctor visits; respondent-father blamed the foster parents and DSS for Andy's mental health concerns; and respondent-father did not pay attention to the doctor at a doctor's appointment for Andy.

¶ 5 During the 26 September 2019 permanency planning hearing, respondent-father did not raise the issue of his constitutionally protected status as a parent. Respondent-father also did not object to arguments that he had acted contrary to his constitutionally protected status as a parent, or the trial court's award of guardianship to the foster parents. In closing arguments, respondent-father's attorney asked the trial court "to deny the guardianship today[,] ... [grant] extended visitation to start off at two times a week[,] ... [and] start family therapy ... addressing issues related to reunification."

¶ 6 In its final remarks and oral order at the 26 September 2019 permanency planning hearing, the trial court did not specifically mention respondent-father's constitutionally protected parental status, but specifically granted guardianship to the foster parents. The trial court's final remarks and oral order came immediately after the DSS attorney's closing, where she repeatedly argued respondent-father had acted inconsistently with his

868 S.E.2d 116

constitutionally protected right as a parent and guardianship was appropriate.

¶ 7 In its Juvenile Order filed 9 October 2019, the trial court granted guardianship to the foster parents. In its Subsequent Permanency Planning Hearing Order filed 13 November 2019 ("November 2019 Order"), the trial court determined respondent-mother and respondent-father had "acted inconsistently with their constitutional rights to parent" and that "it is in [Andy's] best interest and welfare for guardianship to be granted to [the foster parents]." The trial court made the findings of fact in the November 2019 Order "by sufficient and competent evidence."

¶ 8 Respondent-father appeals the November 2019 Order and argues (1) the trial court applied the incorrect evidentiary standard in its conclusion he acted inconsistently with his constitutional right to parent Andy; (2) even if the trial court applied the correct evidentiary standard in reaching that conclusion, the findings do not support the conclusion; and (3) the findings do not support the trial court's "conclusion that reunification efforts clearly would be unsuccessful or inconsistent with [Andy's] health or safety."

¶ 9 The GAL and DSS argue respondent-father waived appellate review of the trial court's finding he acted inconsistently with his constitutionally protected status as a parent because he did not object on that basis, raise the issue before the trial court, or present any evidence regarding his constitutionally protected parental status. Further, the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT