In re A.C.

Citation247 N.C.App. 528,786 S.E.2d 728
Decision Date17 May 2016
Docket NumberNo. COA15–1114.,COA15–1114.
CourtCourt of Appeal of North Carolina (US)
Parties In the Matter of A.C.

Buncombe County Department of Social Services, by John C. Adams, for petitioner-appellee.

Sydney Batch, Raleigh, for respondent-appellant.

Leake & Stokes, by Jamie A. Stokes, for intervenor-appellee.

Amanda Armstrong, for guardian ad litem.

STROUD, Judge.

Respondent-mother appeals from a "Review Order" granting sole legal and physical custody of her daughter "April"1 to April's maternal aunt ("intervenor") and scheduling a permanency planning hearing in accordance with N.C. Gen.Stat. § 7B–906.1(a) (2015). We affirm.

April was born out of wedlock to respondent-mother and respondent-father in November 2011. Respondent-father has a history of involvement with Buncombe County Department of Social Services ("DSS") stemming from his substance abuse and reports of sexual abuse involving his three older daughters, who are April's half-sisters. Respondent-father's three daughters had been adjudicated neglected in 2003 and were in the custody of their paternal grandmother at the time of April's birth.

On 2 May 2012, DSS received a child protective services ("CPS") report regarding April and her half-sisters. An investigation revealed that respondent-father, respondent-mother, and April had moved into the home of the paternal grandmother in violation of a court order prohibiting unsupervised contact between respondent-father and his three older daughters.

Rather than obtain a separate residence from respondent-father, respondent-mother agreed to place five-month-old April in kinship care with intervenor on 4 May 2012. DSS did not seek nonsecure custody of the child but filed a petition alleging she was a neglected juvenile on 24 August 2012. The petition summarized respondent-father's CPS history and alleged that the paternal grandmother had revealed respondent-father was bathing with April "all the time" in her home. The paternal grandmother also acknowledged that two of April's half-sisters had previously disclosed sexual abuse by respondent-father after bathing with him.

Respondent-mother gave birth to April's sister "Megan"2 in October 2012. Megan immediately joined her sister in a kinship placement with intervenor.

The trial court adjudicated April a neglected juvenile in March 2013. At disposition, the court found that respondent-father was incarcerated for violating probation and had "abused drugs while living in the home with respondent mother." The court maintained respondents' legal custody of April but concluded that she should remain in her placement with intervenor. The court concluded that respondent-mother "is capable of providing proper care and supervision for [April] in a safe home when the respondent father is not in the home." It ordered that respondent-mother have one hour per week of supervised visitation with April and authorized additional supervised or unsupervised visitation for respondent-mother at the discretion of the Child and Family Team "so long as respondent father is not in the home." The court subsequently established a permanent plan for April of "prevention of out of home placement."

At a review hearing on 6 November 2013, and by written order entered 24 January 2014, the trial court granted sole legal and physical custody of April to respondent-mother. Though noting that respondent-mother "has not taken advantage of [her] opportunity to visit with [April,]" the court found she was residing with April's maternal grandfather, had full-time employment, and was scheduled to begin parenting classes. Respondent-mother had also obtained a domestic violence protective order against respondent-father. Because "[t]he conditions that led to the involvement of [DSS] have been addressed[,]" the court concluded that "the respondent mother is willing and able to provide adequate care [of April] in a safe environment[.]" Respondent-mother was ordered to complete a parenting class and "engage in mental health counseling with [April] and follow all treatment recommendations." The court granted respondent-father one hour of visitation per week at the Family Visitation Center. The court waived further review hearings and relieved DSS of its responsibilities in the case but retained jurisdiction pursuant to N.C. Gen.Stat. § 7B–201 (2013).

Despite receiving sole legal and physical custody of April in November 2013, respondent-mother left the child in intervenor's care. On 29 October 2014, respondent-father filed a motion in the cause to enforce his visitation rights as established by the 24 January 2014 review order. The trial court entered an order on 11 December 2014, reopening the case and setting respondent-father's motion for hearing the week of 9 February 2015.

On 19 December 2014, respondent-mother and her boyfriend ("Mr. C.") drove to April's daycare, presented a copy of the 24 January 2014 review order, and removed April. The daycare staff contacted intervenor, who asked respondent-mother to bring April home. Respondent-mother refused and informed intervenor that she also intended to take custody of Megan. Intervenor agreed to meet respondent-mother at the Madison County Sheriff's Department the following day to surrender Megan.

When intervenor arrived at the sheriff's office with Megan, respondent-mother had been jailed on an outstanding warrant for nonpayment of child support owed to intervenor. Respondent-mother refused to allow April and Megan to return to intervenor's care and directed that they be given to their maternal grandmother. Respondent-mother was released from jail later that day when Mr. C. paid her outstanding child support balance of $2,675.55.

On 22 December 2014, intervenor filed a complaint in the District Court in Madison County seeking immediate, temporary, and permanent custody of April and Megan. The court entered an ex parte order granting immediate custody to intervenor on 22 December 2014. At a hearing on 2 January 2015, however, the court determined that it lacked jurisdiction over April in light of the pending proceedings in Buncombe County. The court granted intervenor temporary legal and physical custody of Megan, finding that respondent-mother and respondent-father had "abandoned" Megan. April was restored to respondent-mother's physical custody on 2 January 2015.

On or about 6 January 2015, intervenor filed a "Motion to Reopen, Motion to Intervene, and Motion in the Cause for Child Custody" in the juvenile proceeding in Buncombe County. (Original in all caps.) The motion alleged "a substantial change in circumstances" since the 24 January 2014 order granted respondent-mother sole custody of April. Intervenor claimed respondent-mother and respondent-father had "abrogated their constitutionally protected paramount status as the parents of [April]" and were each unfit to care for her.

On 7 January 2015, the trial court entered an ex parte order granting intervenor immediate custody of April but later struck its order and returned April to respondent-mother after a hearing on 21 January 2015. The court subsequently allowed intervenor's motion to intervene as April's caretaker under N.C. Gen.Stat. § 7B–401.1(e) (2015), but maintained April in respondent-mother's custody pending a hearing on intervenor's motion in the cause. On 11 March 2015, the District Court in Madison County granted respondent-mother eight hours per week of supervised visitation with Megan but maintained Megan in intervenor's legal and physical custody.

The District Court in Buncombe County heard twelve days of evidence and argument between 26 March and 27 May 2015 on the intervenor's motion to modify custody of April. On 24 April 2015, the trial court entered an interim order granting intervenor weekend visitation with April. On or about 15 July 2015, the trial court entered a "Review Order" granting intervenor "the sole legal and physical custody of [April]" and scheduling a permanency planning hearing for the 2 November 2015 term. Based on detailed findings of fact spanning fourteen pages and seventy-four numbered paragraphs, the court concluded that (1) since being awarded sole legal and physical custody of April on 6 November 2013, respondent-mother "has acted in a manner inconsistent with her constitutionally protected paramount status as a parent of [April;]" (2) "[t]here has been a substantial change in circumstances affecting the general welfare and best interest of [April]" since the Review Order [rendered] at the [6 November] 2013 hearing[;]" (3) respondent-mother is "unfit at this time to exercise the primary physical custody of [April;]" and (4) "it is in the best interest of [April] that her sole care, custody and control should be awarded to the intervenor ... subject to visitation with the respondent parents [.]" Respondent-mother filed timely notice of appeal pursuant to N.C. Gen.Stat. § 7B–1001(a)(4) (2015).

I. Standards of Review

When the trial court awarded respondent-mother sole legal and physical custody of April on 24 January 2014, it did not enter a civil custody order pursuant to N.C. Gen.Stat. § 7B–911 (2013), but retained juvenile court jurisdiction pursuant to N.C. Gen.Stat. § 7B–201 (2013). By allowing April's caretaker to intervene and seek custody of April from respondent-mother, the court was obliged to resolve a custody dispute between a parent and a nonparent in the context of a proceeding under Chapter 7B. See, e.g., In re B.G., 197 N.C.App. 570, 571–75, 677 S.E.2d 549, 550–53 (2009). Our review of the 15 July 2015 "Review Order" thus requires recourse to legal principles typically applied in custody proceedings under N.C. Gen. Stat. Chapter 50, in addition to those governing abuse, neglect, and dependency proceedings under Chapter 7B.

The following standard of review applies to a trial court's order entered after a review hearing under N.C. Gen.Stat. § 7B–906.1 :

Our review of a permanency planning order is limited to whether there is competent evidence

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