In re K.P.

• Docket Number: 251A21
• Decision Date: 16 December 2022
• Citation: 383 N.C. 292,881 S.E.2d 250
• Parties: In the MATTER OF: K.P.
• Court: North Carolina Supreme Court

383 N.C. 292

881 S.E.2d 250

In the MATTER OF: K.P.

No. 251A21

Supreme Court of North Carolina.

Filed December 16, 2022

Rodman, Holscher, Peck & Edwards, P.A., by Jacinta D. Jones, Greenville, for petitioner-appellant Hyde County Department of Social Services.

Keith Karlsson, for respondent-appellee Guardian ad Litem.

J. Thomas Diepenbrock, Asheville, for respondent-appellee mother.

MORGAN, Justice.

¶ 1 Petitioner appeals from a decision in the Court of Appeals which vacated a trial court order eliminating reunification as a permanent plan and ceasing further review hearings in a neglect and dependency case concerning the son of respondent-mother. The trial court entered the order at issue after it found that an alternate permanent plan of custody with a court-approved caretaker had been achieved and after the trial court had received evidence tending to show that the court-approved caretakers understood the legal significance of the juvenile's placement in their home. Upon appeal from respondent-mother, the Court of Appeals vacated the trial court's permanency planning order and remanded the case for further findings of fact. In re K.P. , 278 N.C. App. 42, 2021-NCCOA-268, 861 S.E.2d 754.

¶ 2 Because the trial court correctly found that a permanent plan had been achieved in this case as an alternative to reunification, and because the trial court properly verified that the juvenile's court-approved caretakers understood the legal significance of the juvenile's placement with them and that they possessed adequate resources to care appropriately for the juvenile, we reverse the portions of the Court of Appeals opinion that found error in these portions of the trial court's order. Furthermore, we leave undisturbed the portion of the Court of Appeals opinion remanding the matter to the trial court to make the findings which are required by N.C.G.S. § 7B-906.1(n).

I. Factual and Procedural Background

¶ 3 On 22 March 2018, the Hyde County Department of Social Services (DSS) filed a juvenile petition which alleged that a three-month-old child named Kenneth¹ was a neglected and dependent juvenile. The supporting documentation alleged, as the trial court later found to be true, that Kenneth's putative father, George Phillips, had returned home early on 17 March 2018 to find his wife—respondent-mother—in bed with a man named Don Keller. A domestic violence incident ensued in which Phillips and Keller struggled over a knife in the presence of Kenneth and Kenneth's siblings² who all resided in the home with respondent-mother and her husband. As a result of the fracas, Keller was hospitalized and Phillips was arrested and charged with assault with a deadly weapon in the presence of a minor, along with other serious charges. Respondent-mother was charged with simple assault. Respondent-mother made arrangements for Kenneth to reside with his maternal aunt prior to respondent-mother's arrest. Kenneth stayed with his maternal aunt from 22 March 2018 until 22 May 2018, when the trial court determined that Kenneth would reside with Phillips's father, George Phillips, Sr., and his wife Mary Phillips, because the couple offered "a safe and stable living environment for the juvenile[ ]."

¶ 4 In light of the events which precipitated the removal of Kenneth and his siblings from the household in which respondent-mother and her husband resided, Phillips questioned Kenneth's paternity, prompting the trial court at a nonsecure custody hearing on 8 August 2018 to order respondent-mother's husband to submit to paternity testing. Kenneth remained in the custody of Phillips, Sr. and Mrs. Phillips. On 17 October 2018, the results of the paternity test revealed that Phillips was not the biological father of Kenneth. The trial court ordered Keller to submit to paternity testing after respondent-mother identified him as a potential father of Kenneth. In January 2019, Keller was determined to be Kenneth's biological father.

¶ 5 Having discovered the lack of a biological relationship between Phillips and the juvenile Kenneth, the trial court held its first adjudication and disposition hearing concerning the underlying neglect and dependency petitions on 10 December 2018. At this hearing, the trial court adjudicated Kenneth to be a neglected juvenile because Kenneth "would reside in an injurious environment if returned to either [parent's] home[ ]." The trial court decreed that respondent-mother needed to address the issues which rendered her residence unsafe for Kenneth by participating in domestic violence counseling, participating in anger management classes, maintaining stable housing, and obtaining a valid driver's license with accompanying safe transportation. The trial court also noted its concerns about substance abuse that may have occurred in respondent-mother's home. Consistent with its earlier determination that Phillips, Sr. and Mrs. Phillips would provide a "safe and stable living environment" for the child, the trial court found that the home of Kenneth's grandparents by marriage³ constituted "the least restrictive, most family like placement available" and that the "child's physical and mental health are good" because of the couple's provision of adequate care for Kenneth. These findings were consistent with earlier findings made by the trial court concerning the appropriateness of Kenneth's placement in the Phillips, Sr. home. These earlier findings had been entered in each of the trial court's orders continuing Kenneth's nonsecure custody with DSS which had been filed since the juvenile's placement in the Phillips, Sr. home. The trial court opted to maintain Kenneth in the custody of Phillips, Sr. and Mrs. Phillips despite the discovery of the lack of the presumed father-son relationship between Phillips and the juvenile Kenneth. Reunification with respondent-mother was set as the permanent plan.

¶ 6 At the permanency planning review hearing conducted on 25 March 2019, the trial court continued Kenneth's nonsecure custody in the home of Phillips, Sr. and Mrs. Phillips, while adding a concurrent permanent plan of custody with a relative to the existing plan of reunification with respondent-mother. Respondent-mother and Phillips, who had separated for a period of time, resumed their marital relationship in April 2019. In June 2019, Phillips, Sr. and Mrs. Phillips were serving as the placement for Kenneth and all three of his siblings. Mrs. Phillips reported that the household was experiencing behavioral issues with the children and financial hardship and stated that it would be preferable for two of the four children to be placed in another home. In response, the trial court ordered that Kenneth and one of his siblings be moved to the home of his "paternal step great grandparents" on 17 July 2019. Given respondent-mother's revived relationship with Phillips, Jr. and the couple's acquisition of appropriate housing, the trial court ordered the commencement of a trial home placement with Kenneth by 20 September 2019. However, a DSS investigation in October 2019 revealed that both respondent-mother and Phillips, Jr. had continued to commit acts of domestic violence upon one another in the presence of Kenneth and the other children during the trial home placement. The trial court terminated the trial home placement, removed Kenneth from the home once again, and placed Kenneth in the care of his maternal aunt in a nearby county. Kenneth was returned to the home of Phillips, Sr. and Mrs. Phillips after the child's temporary stay with his maternal aunt.

¶ 7 At a permanency planning review hearing on 13 January 2020, the trial court found that, except for having completed anger management and parenting classes as directed, respondent-mother had failed to successfully address any of the concerns which had resulted in Kenneth's ongoing removal from the home. Respondent-mother continued to be both the victim and perpetrator of domestic violence and had vacated the home she had temporarily shared with Phillips during their brief marital reconciliation in favor of moving to a two-bedroom apartment with her mother in Virginia. Respondent-mother did not have stable employment, had yet to obtain a valid driver's license, and had refused to submit to drug screens since the termination of the trial home placement. Despite her participation in services offered by DSS, respondent-mother had failed to accomplish the directives which were required to reunite with Kenneth and therefore had "acted inconsistent with the juvenile's health and safety." The trial court maintained the goal of reunification but revised the permanent plan options to include "custody to a court-approved caretaker" in addition to the existing permanent plans of reunification and custody to a relative.

¶ 8 At a 3 June 2020 permanency planning review hearing, the trial court received testimony that respondent-mother had obtained a driver's license without an accompanying mode of transportation and that she had ended her active involvement with Phillips. Otherwise, respondent-mother persisted in her failure to make any progress in obtaining appropriate housing, obtaining a verifiable or consistent source of income, or participating in domestic violence counseling after such discord reoccurred during the trial home placement. Respondent-mother expressed her view that further domestic violence counseling would be "irrelevant." Respondent-mother had only submitted to one out of the seven drug screens scheduled for her by DSS since December of 2019.

¶ 9 Meanwhile, Kenneth continued to thrive in his placement with Phillips, Sr. and Mrs. Phillips over the succeeding months, and the couple indicated a desire to serve as the child's permanent custodians. These grandparents by marriage provided appropriate care for Kenneth while maintaining a good working relationship with both respondent-mother and respondent-father Keller. In her testimony at the permanency planning review hearing held on 3 June...