In re H.A.J.

• Citation: 855 S.E.2d 464,377 N.C. 43
• Decision Date: 19 March 2021
• Docket Number: No. 127A20,127A20
• Parties: In the MATTER OF: H.A.J. and B.N.J.
• Court: United States State Supreme Court of North Carolina

377 N.C. 43

855 S.E.2d 464

In the MATTER OF: H.A.J. and B.N.J.

No. 127A20

Supreme Court of North Carolina.

Filed March 19, 2021

Law Offices of Jamie A. Stokes, PLLC, by Jamie A. Stokes, for petitioner-appellee Madison County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Deputy Parent Defender Annick Lenoir-Peek, for respondent-appellant mother.

EARLS, Justice.

¶ 1 Respondent, the mother of the juveniles H.A.J. and B.N.J. ("Holden" and "Bella")¹ , appeals from the trial court's orders eliminating reunification as a permanent plan and terminating her parental rights. After careful review, we affirm the trial court's orders.

I. Background

¶ 2 On 14 August 2018, the Haywood County Department of Social Services (DSS) received a report alleging that Holden and Bella were being left alone while respondent-mother visited Mr. Scott² , with whom she was in a relationship. The report further alleged that Mr. Scott, who was in the hospital receiving treatment for abscesses

due to intravenous drug use, had "gotten [respondent-mother] ‘hooked’ on Methamphetamine." Haywood County DSS contacted Madison County DSS seeking assistance, and Madison County DSS contacted the Madison County Sheriff's Office for assistance in locating Holden and Bella.

¶ 3 On or around 6 September 2018, the Madison County Sheriff's Office located Holden and Bella in Hot Springs, North Carolina, and notified Madison County DSS. Madison County DSS interviewed Holden and Bella, and the juveniles revealed they had been hiding and fleeing from law enforcement and DSS for multiple days to avoid being removed from respondent-mother's care. Holden and Bella disclosed that they had witnessed respondent-mother and Mr. Scott "shooting drugs with needles in their bodies." The juveniles also stated they had witnessed Mr. Scott "striking the respondent mother, slinging her on the bed[,] and the respondent mother screaming for [Holden and Bella] to call 911." Respondent-mother admitted to intravenous drug use and domestic violence between herself and Mr. Scott, including one occasion where Mr. Scott attempted to choke her in bed. Accordingly, on 7 September 2018, Madison County DSS filed petitions alleging that Holden and Bella were neglected and dependent juveniles and obtained nonsecure custody.

¶ 4 Following a hearing held on 15 October 2018, the trial court entered an order on 7 November 2018 adjudicating Holden and Bella neglected juveniles. The trial court entered an interim disposition order in which it placed the juveniles in the legal and physical custody of Madison County DSS and granted respondent-mother weekly supervised visitation. On 26 November 2018, the trial court entered a disposition order in which it set the permanent plan for the juveniles as reunification with a concurrent plan of guardianship. The trial court ordered respondent-mother to comply with the requirements of her DSS case plan, which included: (1) completing the Children in the Middle Parenting Course and Seeking Safety classes; (2) having no contact with Mr. Scott; (3) attending a substance abuse intensive outpatient treatment program (SAIOP); (4) a medical evaluation; and (5) random drug screens.

¶ 5 The trial court held a review hearing on 21 February 2019. In an order entered on 21 March 2019, the trial court found that respondent-mother: (1) had resolved pending criminal charges by pleading guilty to breaking and entering, and was placed on probation; (2) had a positive screen for alcohol; (3) had participated in a domestic violence class but had not received an assessment; (4) had completed the Children in the Middle Parenting Course but not the Seeking Safety class; and (5) needed to complete SAIOP and submit to random drug and alcohol screening. The trial court also found that Holden and Bella were doing well in their foster care placements but had some behavioral issues.

¶ 6 A permanency planning review hearing was held on 4 April 2019. The trial court found as fact that: (1) respondent-mother had not yet secured housing; (2) she had completed SAIOP and intermediate treatment was recommended; (3) despite treatment, respondent-mother continued to have issues with alcohol consumption; (4) respondent-mother had not yet completed the Seeking Safety class; and (5) respondent-mother had not yet received a domestic violence assessment. The trial court further found as fact that Bella was experiencing behavioral issues that were the result of prior trauma. Consequently, the trial court directed that respondent-mother's visitation with Bella "occur as therapeutically recommended."

¶ 7 The trial court held another permanency planning review hearing on 16 May 2019. On the day of the hearing, the attorney for DSS requested a change in the permanent plan for Holden and Bella to adoption with a concurrent plan of guardianship, and the attorney for the guardian ad litem concurred. Respondent-mother objected to the requested change, citing a lack of notice and due process concerns because DSS and the guardian ad litem had recently filed reports in which they had not recommended such a change. The trial court directed DSS to proceed.

¶ 8 The trial court entered an order from the hearing on 8 August 2019. In the permanency planning review order, the trial court found that since the last hearing respondent-mother: (1) had not yet secured or maintained independent housing, had been kicked out of her prior residence, and was residing with her parents; (2) had missed scheduled visitations in April 2019 and on Mother's Day 2019; (3) was continuing to use alcohol in violation of a prior court order and had received a recent DWI charge which remained pending; (4) was currently on probation for breaking and entering; (5) did not have stable transportation; (6) had completed over ninety hours of SAIOP but had not participated in an aftercare program as recommended; (7) was substituting alcohol for methamphetamine use; (8) had not obtained a domestic violence assessment; and (9) had not started the Seeking Safety course. The trial court further found that the juveniles remained in licensed foster care and were doing well in their placement and in school. The trial court determined that the return of the juveniles to their home within six months was not likely and that further efforts at achieving reunification would be futile or inconsistent with the juveniles’ need for a safe, permanent home within a reasonable period. Accordingly, the trial court relieved DSS of further reunification efforts and changed the permanent plan for the juveniles to adoption with a concurrent plan of guardianship. Respondent-mother filed notice to preserve her right to appeal.

¶ 9 On 28 June 2019, DSS filed petitions to terminate respondent's parental rights. On 14 January 2020, the trial court entered an order in which it determined that grounds existed to terminate respondent's parental rights to both juveniles due to neglect. N.C.G.S. § 7B-1111(a)(1) (2019). The trial court further concluded it was in Holden's and Bella's best interests that respondent's parental rights be terminated. Accordingly, the trial court terminated respondent's parental rights.³ Respondent-mother appeals.

II. Permanency Planning Review Order

¶ 10 Respondent-mother first argues the trial court erred by denying her motion to continue the 16 May 2019 permanency planning review hearing. Respondent-mother contends that she relied on the representations made by DSS and the guardian ad litem in their written reports and was not provided sufficient notice that they would be requesting a change in the juveniles’ permanent plan at the hearing. Respondent-mother argues that had she been aware that their recommendations would be changing, she would have had an opportunity to present evidence as to why reunification efforts should continue. Therefore, respondent-mother argues the trial court violated her constitutional right to due process.

¶ 11 "Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review." In re A.L.S. , 374 N.C. 515, 516–17, 843 S.E.2d 89 (2020) (quoting State v. Walls , 342 N.C. 1, 24, 463 S.E.2d 738 (1995) ). "However, if ‘a motion to continue is based on a constitutional right, then the motion presents a question of law which is fully reviewable on appeal.’ " In re S.M. , 375 N.C. 673, 679, 850 S.E.2d 292 (2020). "To establish that the trial court's failure to give additional time to prepare constituted a constitutional violation, [the] [respondent-mother] must show ‘how [her] case would have been better prepared had the continuance been granted or that [s]he was materially prejudiced by the denial of h[er] motion.’ " State v. McCullers , 341 N.C. 19, 31, 460 S.E.2d 163 (1995) (quoting State v. Covington , 317 N.C. 127, 130, 343 S.E.2d 524 (1986) ).

¶ 12 Here, the record demonstrates, and respondent-mother acknowledges in her brief, that the hearing was designated as a permanency planning hearing. Thus, respondent-mother was on notice that the trial court could change the permanent plan for the juveniles. See N.C.G.S. § 7B-906.2(a) (2019) ("At any permanency planning hearing pursuant to G.S. 7B-906.1, the court shall adopt one or more of the following permanent plans the court finds is in the juvenile's best interests: (1) Reunification[;] (2) Adoption[;] (3) Guardianship[;] (4) Custody to a relative or other suitable person[;] (5) Another Planned Permanent Living Arrangement (APPLA)[; or] (6) Reinstatement of parental rights[.]") (emphasis added). Although respondent-mother argues that DSS and the guardian ad litem should be required to give notice of a change in recommendations in advance of the permanency planning hearing, such notice is not required by Chapter 7B. Furthermore, even if respondent-mother had been notified of the change in recommendations, as the Court of Appeals...