In re J.R.

• Citation: 866 S.E.2d 1,279 N.C.App. 352
• Decision Date: 21 September 2021
• Docket Number: No. COA21-207,COA21-207
• Parties: In the MATTER OF J.R. and J.C.
• Court: Court of Appeal of North Carolina (US)

279 N.C.App. 352

866 S.E.2d 1

In the MATTER OF J.R. and J.C.

No. COA21-207

Court of Appeals of North Carolina.

Filed September 21, 2021

Keith Smith, Charlotte, for Petitioner-Appellee Mecklenburg County Youth and Family Services.

Parker Poe Adams & Bernstein LLP, Charlotte, by W. Coker Holmes, for Appellee Guardian ad Litem.

Freedman Thompson Witt Ceberio & Byrd PLLC, by Christopher M. Watford, for Respondent-Appellant Mother.

COLLINS, Judge.

¶ 1 Mother appeals from orders awarding guardianship of her sons, James and Justin,¹ to their maternal grandfather and awarding Mother visitation. Mother argues that the trial court erred by concluding that she acted in a manner inconsistent with her constitutionally protected status as a parent, determining that the guardian understood the legal significance of guardianship, ceasing reunification efforts, and failing to specify the minimum frequency and duration of visits. We affirm in part and remand in part for the trial court to specify the minimum frequency and duration of Mother's visitation.

I. Procedural History

¶ 2 Petitioner Mecklenburg County Youth and Family Services filed a juvenile petition on 31 July 2019, alleging that James and Justin were neglected and dependent. On 17 October 2019, the trial court entered an order adjudicating James and Justin neglected and dependent and a disposition order. The trial court placed the juveniles with Petitioner, established the primary plan as reunification with the juveniles’ parents, and established a secondary plan of guardianship.

¶ 3 The trial court held a permanency planning hearing on 11 December 2020. Following the hearing, the trial court entered a Permanency Planning Hearing Order, a Guardianship Order, and a Guardianship Visitation Order. The orders placed the juveniles in the guardianship of their maternal grandfather, ceased reunification efforts, awarded Mother visitation, and waived further statutory review hearings. Mother timely gave notice of appeal.²

II. Factual Background

¶ 4 Mother has had four children: Justin in 2015, James in 2016, Jackson in 2017, and Mary in 2020.³ Mother has a history of child protective service agency involvement with her children beginning in October 2015. Petitioner referred Mother to services, including domestic violence and mental health services, in October 2015, October 2016, April 2017, January 2018, December 2018, and April 2019.

¶ 5 In July 2019, Jackson was burned, allegedly in a bath, while in the custody of Mother's boyfriend Daquan McFadden. Mother called a medical hotline to seek treatment advice in lieu of taking Jackson to the doctor because she wanted to avoid further DSS involvement.

¶ 6 On 29 July 2019, Mother and McFadden were staying at a hotel with James, Justin, and Jackson. Mother left the hotel room from about 8 p.m. to midnight. When she returned to the hotel room, where McFadden had remained with the children in her absence, she went to sleep. The next morning, Officer Mike Dashti of the Charlotte Mecklenburg Police Department responded to a 911 call from the hotel room. Dashti arrived and observed Mother on the phone with 911. Dashti found Jackson lying on the bathroom floor unresponsive, with no pulse, and cold to the touch. Dashti observed blood on Jackson's nose and face, a bruise on Jackson's forehead, and a 10-to-12-inch bloodstain on a pillow on one of the beds.

¶ 7 Resuscitation efforts were unsuccessful and Jackson was pronounced dead at the hospital. An autopsy indicated that Jackson had suffered a

blunt force injury to his head

, a large subdural hematoma, a hematoma to his liver, facial abrasions and head contusions on his forehead and lip area, a bite mark on his left shoulder, and lesions healing on his scrotum and buttocks.

The autopsy concluded that Jackson's manner of death was homicide, caused by "an acute blunt force trauma injury[.]"

¶ 8 Mother was charged with felony child abuse; McFadden was charged with Jackson's murder. The State dismissed the criminal charge against Mother on 31 August 2020.

¶ 9 Petitioner filed the juvenile petition on 31 July 2019, alleging that James and Justin were neglected and dependent, and the trial court awarded Petitioner nonsecure custody. Petitioner initially placed James and Justin in a home where both their fathers lived. On 17 October 2019, the trial court adjudicated James and Justin neglected and dependent and entered a disposition order. The trial court maintained the juveniles in Petitioner's custody and established the primary plan as reunification with the juveniles’ parents, with a secondary plan of guardianship. In December 2019, Petitioner placed James and Justin with their maternal grandfather after allegations that James’ father hit Justin.

¶ 10 Prior to the adjudication hearing, Petitioner prepared a proposed Family Services Agreement ("case plan") for Mother. The trial court adopted this case plan in its adjudication order. The case plan required Mother to, inter alia, (1) complete a "F.I.R.S.T." assessment;⁴ (2) "comply with mental health treatment, [ ] follow all therapeutic recommendations[,]" and take any necessary medication as prescribed; (3) complete parenting classes; (4) obtain employment to meet the juveniles’ basic needs; and (5) "maintain an appropriate, safe, and stable living environment for herself and her children[.]"

¶ 11 The trial court held a permanency planning hearing on 11 December 2020. Following the hearing, the trial court entered a Permanency Planning Hearing Order, a Guardianship Order, and a Guardianship Visitation Order. In the Permanency Planning Hearing Order, the trial court made the following findings of fact regarding Mother's progress on her case plan:

16. The mother is employed at Wal-Mart but has reduced her hours from 30 to 20 because of her SSI. She receives approximately $790 per month in SSI. The mother completed parenting classes ... on June 30, 2020. The mother is living with a family friend and paying rent. She has her own room with a queen bed and room for her and her baby [Mary] .... It is not appropriate for these two juveniles as it is not big enough. The mother had a F.I.R.S.T. assessment on April 23, 2020. The mother was recommended to undergo an assessment and drug screen at Anuvia; however, she refused and hung up on the F.I.R.S.T. program staff. The drug screen is a part of the screening process with F.I.R.S.T. The mother was referred to Family First for a substance abuse assessment on at least three separate occasions (5/15/2020, 9/24/2020, and 10/29/2020). On all three occasions, she refused treatment. She did follow through with being assessed during the last referral on November 13, 2020 and was recommended to receive both Outpatient Therapy at a frequency of two times per week and Trauma Therapy; however, the mother informed ... the assessing clinician, that she did not believe in therapy and did not want to engage. The mother has been discharged twice from Family First and is subject to be discharged on December 14, 2020 if she does not respond. She has also not signed her Person-Centered Plan which needs to be signed before the treatment services can begin. A referral was made to Thrive for a mental health assessment. The mother has not done a mental health assessment at this time. The mother has consistently maintained with professionals that she did not think therapy was appropriate for her. The mother has also not engaged in domestic violence services at this time.

....

21.f. Despite recommendations, the mother has consistently stated she will not take part in mental health services despite concerns on her behavior, temper, and grief of loss of her child.

21.h. Mother does not have housing that can meet the needs of these juveniles.

21.i. She is renting a room from a friend that has a Queen bed and pack and play for [Mary].

....

21.k. [Mother's] criminal case was dismissed on August 31, 2020 and since then minimal progress was made by the mother on her case plan.

21.l. The court does not have confidence that the mother will follow through with the items of the case plan. While the court understands she was not able to do certain things on her plan due to pending criminal charges, her many other actions and statements indicate she will not follow through with the services.

....

22.b. The mother is not making adequate progress within a reasonable time under the plan.

....

22.i. The mother is acting in a manner inconsistent with the health or safety of the juveniles.

¶ 12 The trial court concluded that Mother had "acted in a manner inconsistent with [her] constitutionally protected rights as a parent." The trial court also found that further reunification efforts "clearly would be unsuccessful or would be inconsistent with the juveniles’ health and safety and need for a safe, permanent home within a reasonable period of time." The trial court determined that the maternal grandfather was "ready and able to accept the guardianship of the juveniles," "under[stood] the legal significance of the appointment and has adequate resources to care appropriately for the juveniles." The trial court therefore ceased reunification efforts and appointed the maternal grandfather the guardian of the juveniles.

¶ 13 In the Permanency Planning Hearing Order and Guardianship Visitation Order, the trial court awarded Mother multiple forms of visitation. The trial court awarded Mother "regular visitation" as follows:

[Mother] shall have supervised visitation with the minor children to occur a minimum of four hours per month. The visits are to be supervised by [the maternal grandfather] or an approved responsible adult. The day and time of each visit will be agreed upon between [Mother and the maternal grandfather].

Mother appeals.

III. Discussion

A. Award of Guardianship

¶ 14 Mother challenges the Permanency Planning Hearing Order's award of guardianship of the juveniles to their maternal grandfather. "This Court's review of a permanency planning order is limited to...