In re J.M.

• Decision Date: 06 April 2021
• Docket Number: No. COA20-677,COA20-677
• Citation: 856 S.E.2d 904
• Court: North Carolina Court of Appeals
• Parties: In the MATTERS OF J.M., N.M.

856 S.E.2d 904

In the MATTERS OF J.M., N.M.

No. COA20-677

Court of Appeals of North Carolina.

Filed April 6, 2021

Lauren Vaughan, for petitioner-appellee Catawba County Department of Social Services.

Michelle F. Lynch, for Guardian ad Litem.

David Perez, Thomasville, for Respondent-Appellant-Mother.

J. Lee Gilliam, for Respondent-Appellant-Father.

WOOD, Judge.

¶ 1 Respondent-Mother and Respondent-Father appeal a permanency planning order eliminating reunification from the children's permanent plan. We reverse and remand.

I. Background

¶ 2 Jon¹ was born on April 20, 2017 and Nellie was born on July 3, 2018. Jon and Nellie have two older half-siblings, ages 10 and 14. Jon and Nellie's half-siblings are Respondent-Mother's children from a prior relationship, and resided in the home with Respondents, Jon, and Nellie. Nellie was briefly hospitalized after her birth. On August 15, 2018, Nellie exhibited some additional bowel problems and could be heard crying. At approximately 10:30 a.m., Respondent-Father fed Nellie a bottle and changed her diaper. Shortly thereafter, Nellie became completely silent and limp. Respondents took her to the hospital, where a CAT scan showed an acute subdural hematoma. Nellie then was transferred to Levine Children's Hospital ("Levine").

¶ 3 Dr. James LeClair ("Dr. LeClair"), a radiologist, and Dr. Patricia Morgan ("Dr. Morgan"), a board-certified child-abuse pediatrician, examined Nellie at Levine. Dr. LeClair reviewed Nellie's CAT scan and found two areas of bleeding and an ischemic infarct. Dr. LeClair categorized these injuries as resulting from the deprivation of oxygenated blood to Nellie's brain. Dr. LeClair also noted that Nellie's past medical history did not include tonic-clonic seizures that could cause such brain injuries. Nellie was also treated for severe multilayer retinal hemorrhages to both eyes and rib fractures that appeared to be several days old. Dr. Morgan opined that Nellie's injuries were highly specific for child abuse. Since this incident, Nellie has been recovering, and the Children's Developmental Service Agency has reported that Nellie has been doing well and making great progress.

¶ 4 On August 21, 2018, the Catawba County Department of Social Services ("DSS") filed a petition alleging that Nellie was abused, neglected, and dependent, and that Jon was neglected and dependent. On the same day, the children were placed in DSS's custody. Respondent-Mother's older two children were left in Respondents’ care. DSS did not interview Respondent-Mother's older two children to see if either child knew how Nellie was harmed. Respondents were granted only one hour per month supervised visitation.

¶ 5 Despite the statutory mandate requiring adjudication of the children occur within 60 days of the filing of the petition, the adjudication and disposition hearing regarding Jon and Nellie occurred nearly a year after the children were removed from the familial home. See N.C. Gen. Stat. § 7B-801(c) (2019) ("The adjudicatory hearing shall be held ... no later than 60 days from the filing of the petition. ") (emphasis added). The hearing occurred over several sessions held on May 7, May 22, June 5, and July 2, 2019. On August 26, 2019, more than a year after the petition was filed, Jon was adjudicated neglected, and Nellie was adjudicated abused and neglected. At the disposition hearing on the same day, the trial court determined that the children's proper dispositional alternative was to remain in the custody of DSS with DSS having placement discretion. The trial court ordered Respondents to enter into specific case plans to work toward reunification with the children. Based on statements made by Respondents to social workers and police about persons responsible for the care of Nellie, the court accepted that Jon and Nellie were in Respondents’ exclusive custody and care, and thus, they were responsible for any harm done to Nellie. Respondents were granted one hour per week supervised visitation.

¶ 6 Although Respondents could not be required to do so, Respondents entered into, complied with, and substantially completed their case plans developed by DSS prior to Jon and Nellie's adjudication. In the adjudication order, the trial court specifically noted Respondents’ substantial progress toward completing their case plans.

¶ 7 Respondent-Mother's case plan required her to complete a full psychological evaluation; collaborate with social workers to learn proper disciplinary techniques; watch the short film "Period of Purple Crying" and prepare a report; submit to random drug testing; abstain from recreational drug use; complete substance abuse counseling; complete a domestic violence assessment; and obtain and maintain stable housing and employment.

¶ 8 Respondent-Mother had complied with and substantially completed this plan prior to the adjudication. Specifically, Respondent-Mother completed a full psychological evaluation in March 2019; participated in substance abuse and domestic violence counseling; participated in individual and group therapy; and watched "Period of Purple Crying" and prepared a report for the social worker. Respondent-Mother also completed a comprehensive clinical assessment; submitted to drug screens, all of which returned negative results; attended "domestic violence/life skills classes"; maintained independent housing; and obtained employment. Respondent-Mother arranged to attend Triple P Parenting sessions. DSS also included in its adjudication report that Respondent-Mother consistently acted appropriately during visits with the children and that she had put safeguards in place throughout her home to protect the children. In therapy, Respondent-Mother expressed her concern that Respondent-Father could have caused Nellie's injuries. Due to this concern, Respondent-Mother required Respondent-Father to move out of the familial home.

¶ 9 Respondent-Father's case plan required him to complete a full psychological evaluation; collaborate with social workers to learn proper disciplinary and coping mechanisms; submit to random drug testing; abstain from recreational drug use; complete a substance abuse assessment and comply with any associated treatment recommendations; and obtain and maintain stable housing and employment.

¶ 10 Respondent-Father completed all necessary appointments for his first psychological exam by March 2019; discussed appropriate coping and disciplinary mechanisms with social workers; watched the short film "Period of Purple Crying" and prepared a report; completed a comprehensive clinical assessment that addressed substance abuse and mental health; and submitted to all drug screens, only the first of which returned a positive result.

¶ 11 Respondent-Father also completed a domestic violence assessment in January 2019; obtained independent housing, separate from Respondent-Mother; and maintained employment. Respondent-Father completed an additional court ordered psychological exam, because the therapist was concerned he was "not completely forthcoming during the course of the evaluation," and his responses indicated deception. Although the therapist noted Respondent-Father "externaliz[ed] blame," she was able to recommend services to Respondent-Father.

¶ 12 At the November 4, 2019 permanency planning hearing, DSS reported further compliance by Respondents with their case plans. Respondent-Father consistently exhibited appropriate behavior during visits with the children; regularly attended therapy; and maintained stable housing and employment. Respondent-Father completed all necessary appointments for his second psychological evaluation on October 16, 2019. The therapist noted Respondent-Father's "positive progress on his case plan over the past year." However, the therapist expressed her concern over the seriousness of Nellie's injuries and recommended Respondent-Father "continue to participate in counseling to address the stresses of parenting, manage those stresses effectively and guard against increased risk of aggressive behavior." Respondent-Mother enrolled in an online Triple P Parenting course and maintained stable housing and employment. Both Respondents continued to test negative at required drug screens.

¶ 13 The trial court ordered a primary plan of reunification and a secondary plan of adoption. The trial court also ordered DSS to make reasonable efforts to finalize both plans. The trial court ordered Respondents to comply with their case plans and significantly increased Respondents’ supervised visitation with the children from one to three hours per week. DSS had the discretion to increase weekly supervised visitation to four hours.

¶ 14 On February 12, 2020, another permanency planning hearing was held. Prior to the hearing, and in addition to Respondents’ conduct discussed supra , Respondent-Father completed an online Triple P Parenting course, and Respondent-Mother had begun her online parenting course. Respondent-Mother also provided completion certificates for two Triple P Positive Parenting Workshops. DSS and the children's foster parents, who supervised Respondents’ visitations, reported no concerns about Respondents’ interactions with their children. DSS recommended a primary plan of reunification and a secondary plan of adoption. The Guardian ad Litem recommended a primary plan of adoption with a secondary plan of reunification, as the cause of Nellie's injury remained unexplained.

¶ 15 At the hearing, the children's foster mother, who had been engaging in shared parenting with Respondents and supervising Respondents’ visitation, testified that the children "have a good bond" with Respondent-Father, and she never observed any inappropriate behavior by Respondent-Father. She further testified that she had no safety concerns with Respondent-Father and the children. The foster mother testified Respondent-Mother was an attentive mother who appeared to have a good bond with the children. She further testified she saw no cause for...