In re K.C.
| Docket Number | COA22-775 |
| Decision Date | 07 November 2023 |
| Parties | IN THE MATTER OF: K.C., K.A. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 9 October 2023.
Appeal by respondent-appellant-mother from orders entered 26 April 2022 by Judge Resson O. Faircloth, II, in District Court Johnston County Nos. 20 JA 127, 21 JA 75.
Jennifer S. O'Connor for petitioner-appellee Johnston County Department of Social Services.
Mobley Law Office, P.A., by Marie H. Mobley, for guardian ad litem.
Edward Eldred for respondent-appellant mother.
Respondent-appellant-mother appeals from permanency planning orders that eliminated reunification with her two minor children from the permanent plans. After careful review, we affirm in part and remand in part for further findings under North Carolina General Statute § 7B-906.2(d)(3).
Respondent-appellant-mother ("Respondent") is the mother of minor children K.C. ("Kim"1] and K.A. ("Kam") (collectively "the children"). On 19 June 2020, Johnston County Department of Social Services ("DSS") filed a juvenile petition alleging one-year-old Kim was neglected and dependent. The petition alleged DSS received a Child Protective Services ("CPS") report on or about 15 June 2020 that Kim had been hospitalized with a gluteal abscess three days before. The CPS report alleged that while Kim was in the hospital, Respondent told staff Respondent was going to have a seizure, she left the hospital multiple times despite COVID-19 restrictions, and staff was unable to wake Respondent when she fell asleep in the hospital. The CPS report also alleged that Respondent stated she suffered from "mental health and medical conditions[.]" Respondent informed the hospital that Kim's legal father, "Charles,2] was not allowed to have contact with Kim due to a nocontact order. However, Respondent did not provide the no-contact order to the hospital.
The petition also alleged that Respondent disclosed a history of substance abuse to DSS. The petition alleged that Respondent submitted to a drug screen on 16 June 2020 and tested positive for multiple illegal substances. Respondent repeated her concerns against Charles to DSS and alleged she had obtained a domestic violence protection order against him on 15 June 2020. The petition also included DSS's determination that a temporary safety provider was needed for Kim's discharge from the hospital.
DSS removed Kim from Respondent's custody and placed her with Mr. and Mrs. Taylo3] as temporary safety providers. Charles consented to Kim's placement with the Taylors. DSS then filed the juvenile petition and obtained nonsecure custody of Kim.
The matter came on for adjudication on 29 July 2020 and, on 9 October 2020, the trial court adjudicated Kim to be a neglected and dependent juvenile based on findings consistent with the allegations in the juvenile petition. On 26 October 2020, the trial court entered a disposition order continuing Kim's placement with the Taylors. The trial court also ordered Respondent to follow her case plan, which required her to complete substance abuse treatment, random drug screenings, mental health services, domestic violence classes, and parenting classes.
On 4 November 2020, the trial court held a permanency planning hearing where the court set the "primary permanent plan as reunification, with a secondary permanent plan of custody with a relative or other suitable person." On 17 February 2021, the trial court held a permanency planning review hearing where the court continued the same permanent plan.
In May of 2021, Kam was born to Respondent. On 24 May 2021, DSS filed a juvenile petition alleging Kam was neglected, alleging Respondent and Kam both tested positive for methamphetamines in the hospital, and that Respondent admitted to using methamphetamines during the last two months of her pregnancy. Respondent named Charles as Kam's putative father, and Kam was discharged to a non-relative temporary safety provider from the hospital, Ms. King4]
On 18 August 2021, the trial court held a permanency planning hearing for Kim and a disposition hearing for Kam. On 3 September 2021, the trial court adjudicated Kam to be a neglected juvenile. Respondent and Charles stipulated facts necessary to support Kam's adjudication as a neglected juvenile. On 12 October 2021, the trial court entered an initial disposition order for Kam and a third permanency planning order for Kim.
In November 2021, DSS confirmed John5[], not Charles, was Kim's biological father. On 16 March 2022, the trial court held a permanency planning hearing for both children. DSS presented Social Worker Sydney Milligan, Kam's temporary safety provider, and the children's guardian ad litem as witnesses.
On 26 April 2022, the trial court entered written permanency planning orders. In Kim's case, the trial court eliminated reunification with Respondent from the permanent plan and established reunification with John as the primary plan. In Kam's case, the trial court adopted guardianship as the primary plan and awarded guardianship to Ms. King, a nonrelative. The trial court also eliminated reunification with Respondent from Kam's permanent plan6] Respondent appealed both orders to this Court.
Respondent has filed a petition for writ of certiorari with this Court to review the 26 April 2022 permanency planning orders if this Court determines she has lost her right to appeal by failure to take timely action. She explains her attorney filed sixteen documents in an attempt to appeal the permanency planning orders.
Our Supreme Court has stated:
the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken. However, a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.
In re A.E., 379 N.C. 177, 183-84 n.4, 864 S.E.2d 487, 494 n.4 (2021) (quotation altered). This Court has also recognized that it is appropriate to allow certiorari in juvenile cases to "avoid penalizing respondents for their attorneys' errors." In re J.G., 280 N.C.App. 321, 323, 867 S.E.2d 351, 353 (2021) (quoting In re I.T.P-L., 194 N.C.App. 453, 460, 670 S.E.2d 282, 285 (2008) ().
Because it appears Respondent intended to appeal the 26 April 2022 permanency planning orders, and because DSS has not sought to dismiss the appeal or suffered prejudice based on alleged defects in the notices of appeal, we exercise our discretion under Rule 21 of the North Carolina Rules of Appellate Procedure to allow the petition for writ of certiorari and review Respondent's challenges to the permanency planning orders. See N.C. R. App. P. 21.
Respondent contends the trial court's finding that she is not a "fit and proper parent" is not supported by clear and convincing evidence. Respondent also contends that "[t]he trial court was not authorized to eliminate reunification from the permanent plans because the trial court did not make any of the findings required by N.C. [Gen. Stat.] § 7B-906.2(d)." After first discussing the standard of review, we will discuss each argument.
"[A]ppellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings of fact and whether the findings support the conclusion of law[.]" In re B.R.W., 381 N.C. 61, 77, 871 S.E.2d 764, 775 (2022) (citation and quotation marks omitted). "The trial court's findings of fact are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings." In re J.S., 250 N.C.App. 370, 372, 792 S.E.2d 861, 863 (2016) (citation omitted). Unchallenged findings are binding on appeal. In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019). Conclusions of law are reviewed de novo. In re J.T., 252 N.C.App. 19, 20, 796 S.E.2d 534, 536 (2017).
Respondent first challenges the trial court's award of guardianship of Kam to a nonparent, arguing its finding that she is not a "fit and proper parent" is not supported by clear and convincing evidence.
Before reaching the merits of Respondent's argument, we address preservation as DSS and the GAL argue Respondent waived her arguments by failing to raise her constitutionally protected status in the trial court.
"Prior cases have held that a parent may fail to preserve the constitutional issue of whether the parent has acted inconsistently with her constitutionally protected rights as a parent by failing to raise the issue before the trial court[.]" In re B.R.W., 278 N.C.App. 382, 398, 863 S.E.2d 202, 215 (2021) (citation omitted), aff'd, 381 N.C. 61, 871 S.E.2d 764 (2022). "[F]or waiver to occur the parent must have been afforded the opportunity to object or raise the issue at the hearing." Id. (citation omitted).
However, our courts have explained that a party cannot object at a hearing to findings and conclusions in an order not yet entered:
[A] trial court's findings of fact are not evidence, and a parent may not "object" to a trial court's rendition of an...
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