In re I.K.
| Decision Date | 07 August 2018 |
| Docket Number | No. COA18-94,COA18-94 |
| Citation | 818 S.E.2d 359,260 N.C.App. 547 |
| Parties | In the MATTER OF: I.K., K.M. |
| Court | North Carolina Court of Appeals |
Holcomb & Stephenson, LLP, by Deana K. Fleming, for petitioner-appellee Orange County Department of Social Services.
Batch, Poore & Williams, PC, Raleigh, by Sydney Batch, for respondent-appellant mother.
Vitrano Law Offices, PLLC, Wake Forest, by Sean P. Vitrano, for respondent-appellant father.
Alston & Bird LLP, Raleigh, by Matthew P. McGuire, for guardian ad litem.
Respondent mother ("Patty")1 and respondent father ("Isaac") appeal from an order ceasing reunification efforts and awarding guardianship of the minor children I.K. ("Iliana") and K.M. ("Kevin") to the maternal grandmother. Because the trial court’s findings do not address Respondents' fitness, whether they acted inconsistent with their constitutionally protected status, or why reunification efforts should cease, we vacate the trial court's 7 November 2017 order and remand for further proceedings.
Kevin was born to Patty in May 2008. Kevin's father is not a party to this appeal. Iliana was born to Respondents in December 2012. On 10 November 2014, the Rockingham County Department of Social Services received a report that Respondents lived in a "hoarder home" that was unsafe, Respondents sold their food stamps, Kevin was small for his age, there was fighting in the home, and Respondents were smoking marijuana and snorting Percocet. The Rockingham County Department of Social Services investigated this report, but no services were recommended at the time.
In 2015, the Orange County Department of Social Services ("DSS") received two reports alleging that Patty had snorted pills while Kevin was in the home, and that Patty and her brother were involved in a domestic dispute that resulted in the brother shaking and hitting Kevin. At that point, Respondents were provided in-home services to address concerns of substance use, mental health, and domestic violence. On 8 January 2016, Patty was sentenced to 45 days in jail for shoplifting and violating her probation. Patty received another 45 day sentence in April 2016 after a drug test conducted by her probation officer tested positive for cocaine. At that time, Respondents placed Iliana with the maternal grandmother. For the previous five years, Kevin had been residing with his maternal grandmother. On 5 August 2016, Patty informed a DSS social worker that Respondents were being evicted from their home and were homeless.
Due to concerns regarding Respondents' unstable housing, substance abuse, and lack of engagement in substance abuse treatment services, DSS filed juvenile petitions on 10 August 2016 alleging that Kevin and Iliana were neglected and dependent juveniles. DSS obtained nonsecure custody that same day. Following a 15 September 2016 hearing, the trial court entered an order on 13 October 2016 adjudicating the juveniles dependent, keeping temporary legal and physical custody with the maternal grandmother. The order required Respondents to submit to random drug screens, seek substance abuse treatment services, and follow any treatment recommendations. After a permanency planning hearing on 2 March 2017, the trial court entered an order on 27 March 2017 establishing a primary permanent plan of guardianship with the maternal grandmother and a secondary plan of reunification with Respondents. Following a 5 October 2017 permanency planning hearing, the trial court entered a 7 November 2017 order ceasing reunification efforts and awarding guardianship of the children to the maternal grandmother. Respondents timely appealed the 7 November 2017 order.
Respondents first contend that the trial court erred in awarding guardianship of the children to the maternal grandmother without first finding that Respondents were unfit to parent or had acted inconsistently with their constitutionally protected status as parents. We agree.
"A natural parent's constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Price v. Howard , 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (citations omitted). "[A] natural parent may lose his constitutionally protected right to the control of his children in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with his or her constitutionally protected status." In re D.M. , 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (alteration in original) (quoting David N. v. Jason N. , 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005) ). "[T]o 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." In re B.G. , 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009) (citations omitted).
DSS and the children's guardian ad litem ("GAL") do not refute Respondents' contention that the trial court failed to make the required finding, but instead argue that Respondents waived appellate review of this argument by not raising the issue at the hearing. DSS and the GAL cite this Court’s previous pronouncement that "a parent's right to findings regarding her constitutionally protected status is waived if the parent does not raise the issue before the trial court." In re R.P. , ––– N.C. App. ––––, ––––, 798 S.E.2d 428, 430-31 (2017). However, in R.P. we also held that there is no waiver where the party "was not afforded the opportunity to raise an objection at the permanency planning review hearing." Id. at ––––, 798 S.E.2d at 431. In that case, the trial court indicated at a permanency planning review hearing that it would determine guardianship at the next hearing. Id. at ––––, 798 S.E.2d at 431. Then, at the next hearing, the trial court did not allow any evidence to be presented concerning guardianship, stating that guardianship had been determined at the prior hearing. Id. at ––––, 798 S.E.2d at 431.
In the present case, the trial court did not permit arguments. At the conclusion of the hearing, Patty’s counsel asked:
"Judge, can we be heard?"
To which the trial court responded:
I've heard from you. I know what you want done. Appreciate it.
Thus, the trial court prevented the Respondents from making arguments concerning Respondents' constitutionally protected status as parents, and Respondents cannot be said to have waived their contention on appeal. As to the merits of Respondents' contention, the trial court did not make a finding that Respondents were unfit or had acted inconsistent with their constitutionally protected status. Absent such a finding, the trial court erred in applying the best interest of the child test to determine that guardianship with the maternal grandmother was in the children's best interests. As a result, we vacate that portion of the trial court's order awarding guardianship and remand.
Respondents next contend that the trial court erred in ceasing reunification efforts. We conclude that the trial court's findings are insufficient to support its conclusion that reunifications efforts should cease.
"Appellate review of a permanency planning order 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 R.A.H. , 182 N.C. App. 52, 57-58, 641 S.E.2d 404, 408 (2007) (citation omitted). "The trial court's conclusions of law are reviewable de novo on appeal." In re T.R.M. , 208 N.C. App. 160, 162, 702 S.E.2d 108, 110 (2010) (citation omitted).
"At the conclusion of each permanency planning hearing, the judge shall make specific findings as to the best permanent plans to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C.G.S. § 7B-906.1(g) (2017). "Reunification shall remain a primary or secondary plan unless the court made findings under G.S. 7B-901(c) or makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile's health or safety." N.C.G.S. § 7B-906.2(b). However, the trial court failed to make findings pursuant to N.C.G.S. § 7B-901(c) or to find that reunification efforts clearly would be unsuccessful or inconsistent with the juvenile's health or safety. To cease reunification in this way:
Here, the trial court made the following findings of fact relevant to its decision to cease reunification efforts:
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