In re R.P.
| Decision Date | 21 March 2017 |
| Docket Number | No. COA16-856,COA16-856 |
| Citation | 798 S.E.2d 428,252 N.C.App. 301 |
| Court | North Carolina Court of Appeals |
| Parties | In the MATTER OF: R.P. |
Associate Attorney Christopher C. Peace for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.
Mark L. Hayes for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by Mindy Campo and Maya Engle, for guardian ad litem.
Respondent, the father of the juvenile R.P. ("Ricky")1 , appeals from a permanency planning review order and an order appointing a guardian for the juvenile. After careful review, we reverse and remand.
On 17 June 2014, Mecklenburg County Department of Social Services, Youth and Family Services ("YFS") filed a petition alleging that Ricky, as well as two older siblings ("Amy" and "Donald")2 , were neglected and dependent juveniles. YFS claimed that it had received a referral on 30 April 2014 stating that respondent and the juveniles’ mother had engaged in a physical altercation in which respondent allegedly bit the mother on the leg and struck her face. A warrant was issued for respondent's arrest and it remained outstanding at the time the petition was filed. A social worker met with the mother on 1 May 2014 to discuss the incident. During this meeting, the mother refused to obtain a restraining order against respondent, claiming that respondent "merely needed to be hospitalized involuntarily so that he can again begin taking his medication(s) for his bipolar disorder
for which he received disability income." The mother entered into a safety agreement with YFS and claimed not to know of respondent's whereabouts or contact information. Subsequently, however, the mother retrieved Amy from her placement with an aunt and, based on information provided by family members, went to reside with respondent in South Carolina. YFS obtained non-secure custody of Ricky on 17 June 2014 and placed him with his maternal aunt ("Mrs. M.").
An adjudicatory hearing was held on 19 August 2014. Respondent had still not been served with the petition at that time. Based upon an agreement mediated between Ricky's mother, Amy's father, and YFS, the juveniles were adjudicated neglected and dependent. The trial court noted that the adjudication was being "held in abeyance" as to respondent. The court ordered that the permanent plan for Ricky be reunification.
A review hearing was held on 18 November 2014, at which respondent appeared. Respondent was ordered to meet with a social worker and develop a case plan. At a review hearing held on 24 March 2015, the court ordered respondent to be compliant with his mental health treatment, but otherwise continued the plan of reunification.
At permanency planning review hearings held on 23 June 2015, and 7 and 20 October 2015, concerns were expressed regarding possible incidents of domestic violence between respondent and the juveniles’ mother. The court advised respondent and the mother that "if no [domestic violence] concerns were raised and there was no ‘drama’ during this upcoming review period then the Court can begin considering/discussing transition plans." Nevertheless, the court adopted a concurrent permanent plan of guardianship.
In October 2015, an incident occurred between respondent and the mother which led to respondent filing a complaint for a domestic violence protection order ("DVPO"). On 6 November 2016, a consent order was entered granting the DVPO. The DVPO provided that respondent and the mother would have no contact with one another for a period of one year.
A subsequent permanency planning review hearing was held on 9 February 2016. In an order entered on 26 February 2016, the court changed the primary permanent plan for Ricky to guardianship, and changed the secondary concurrent plan for Ricky to reunification. The court found that respondent had made progress on his case plan, but expressed concern about the continued domestic violence between respondent and the mother. The court specifically noted that despite the no-contact provisions of the DVPO, respondent and the mother continued to have contact with one another, and expressed "grave concern regarding the safety of the juveniles when the parents get together." The court further found that Ricky was doing very well with Mrs. M. and it was in his best interests that Mrs. M. be granted guardianship. The court stated that it would proceed with granting guardianship to Mrs. M. at the next hearing. On 2 May 2016, following a hearing held on 17 March 2016, the trial court entered a permanency planning review order and a separate guardianship order placing Ricky in guardianship with Mrs. M. Respondent gave written notice of appeal on 11 May 2016.
We initially note that respondent filed a petition for writ of certiorari in the alternative seeking review of the trial court's permanency planning review order entered on 26 February 2016. However, in our discretion, we determine it is unnecessary to grant certiorari and deny the petition.
Respondent argues that the trial court erred by granting guardianship to Mrs. M. without first determining that he was unfit or acted inconsistently with his constitutionally protected parental status. We agree.
" ‘[P]arents have a constitutionally protected right to the custody, care and control of their child, absent a showing of unfitness to care for the child.’ " In re A.C. , ––– N.C.App. ––––, ––––, 786 S.E.2d 728, 735 (2016) (citation omitted). "[A] parent may lose the constitutionally protected paramount right to child custody if the parent's conduct is inconsistent with this presumption or if the parent fails to shoulder the responsibilities that are attendant to rearing a child." Cantrell v. Wishon , 141 N.C.App. 340, 342, 540 S.E.2d 804, 806 (2000). Prior to granting guardianship of a child to a nonparent, a district court must "clearly address whether [the] respondent is unfit as a parent or if [his] conduct has been inconsistent with [his] constitutionally protected status as a parent[.]" In re P.A. , ––– N.C.App. ––––, ––––, 772 S.E.2d 240, 249 (2015). "[A] trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence." A.C . at ––––, 786 S.E.2d at 733 (citing Adams v. Tessener , 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) ).
Here, the trial court's written orders make no reference whatsoever to respondent's constitutionally protected status as a parent, let alone whether he has acted inconsistently with that status or is otherwise unfit to serve as a parent to Ricky. The guardian ad litem cites the adjudication of neglect and dependency, and argues that "[p]arental conduct that leads to an adjudication of the children as neglected and dependent clearly constitutes ‘some showing of unfitness’ and is inconsistent with the protected status of parents." However, a finding that a parent is unfit or acted inconsistent with his or her...
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