In re V.A.M.

• Decision Date: 06 July 2021
• Docket Number: No. COA20-826,COA20-826
• Citation: 859 S.E.2d 649 (Table)
• Parties: In the MATTER OF V.A.M., Jr.
• Court: North Carolina Court of Appeals

859 S.E.2d 649 (Table)

In the MATTER OF V.A.M., Jr.

No. COA20-826

Court of Appeals of North Carolina.

Filed July 6, 2021

Perry, Bundy, Plyler, & Long, LLP, by Ashley J. McBride and Dale Ann Plyler, for Petitioner-Appellee.

Surratt Thompson & Ceberio PLLC, by Christopher M. Watford, for Respondent-Appellant.

Parker Poe Adams & Bernstein, LLP, by Kelsey Monk, and C. Kyle Musgrove, for Guardian ad Litem.

COLLINS, Judge.

¶ 1 Respondent-Mother appeals a permanency planning order entered 3 August 2020 which, inter alia , awarded guardianship of her son Vince ¹ to his paternal grandmother, prohibited Respondent from visitation with Vince until she verified her participation in mental health services and parenting classes, required Respondent to pay the cost of any visitation which occurred, permitted the guardian to suspend visitation in certain circumstances, barred Respondent from contacting certain members of Vince's family, ceased efforts to reunify Vince with Respondent, and relieved the Union County Department of Social Services ("Petitioner") of further responsibility in this case. Respondent argues that the trial court violated Respondent's procedural due process rights and erred by ordering certain provisions concerning supervised visitation. Respondent has failed to preserve her constitutional procedural due process argument for appellate review. Respondent's challenge to the visitation provisions of the 3 August 2020 order has been mooted by the trial court's entry of a subsequent order. Respondent's appeal is dismissed.

I. Procedural History and Factual Background

¶ 2 On 10 April 2019, Petitioner filed a juvenile petition ("First Petition") alleging that Vince was a neglected and dependent juvenile. On 10 July 2019, the trial court adjudicated Vince neglected and placed him to the custody of Petitioner. Petitioner filed second and third juvenile petitions concerning Vince, which were subsequently dismissed. ² In the course of this case, Vince has been subjected to at least five changes in his custody and visitation arrangements.

¶ 3 Throughout the pendency of this matter, Respondent has been appointed several attorneys, but each has been permitted to withdraw. Respondent has also sought multiple continuances, some of which the trial court has granted. In particular, the trial court continued the permanency planning hearing which resulted in the order on appeal from 10 June to 15 July 2020, at Respondent's request.

¶ 4 At 9:37 am on 15 July 2020, Respondent emailed a social worker involved in the case that she could not come to court at 9:30 am as scheduled because she had worked third shift and was attending parenting class. Respondent represented that she would be in court before 1:00 pm. When the case was called at approximately 11:00 am, Respondent was not present. Counsel for Petitioner informed the trial court of Respondent's email, but the trial court elected to proceed with the permanency planning hearing in Respondent's absence.

¶ 5 In the afternoon of 15 July 2020, Respondent appeared before the trial court and stated that she did not attend court in the morning because she was working third shift and attending a parenting class. Respondent also claimed that she was working as a food delivery driver with Postmates and that she was waiting on unemployment. The trial court stated to Respondent:

I'm really not finding your reason for not being here credible. And I would also make the observation that there, I think, have been times when your failure to show up at the court time was probably a strategic delay to delay the resolution of this case. I've given you ample opportunity to participate.

I have done everything I could to get you to accept the services of a lawyer.... You have repeatedly said that you do not wish to have a lawyer, that you wish to represent yourself. And I explained to you that if you did not have a lawyer after being offered one, that you would be held to the same standards as if you did have a[ ] lawyer.

I've still given you some accommodations in spite of that; however, I do also make the finding that you understand very well the process that we're undergoing. And I think ... I best would characterize your understanding of the process is [that] you understand it, but you don't agree with it. And ... that's not an option.

The trial court stated that it was "not persuaded ... that [Respondent] had any reason other than unreasonable delay to not be here."

¶ 6 On 3 August 2020, the trial court entered ³ a permanency planning order appointing Vince's paternal grandmother as his guardian, prohibiting Respondent's visitation with Vince until she provided proof of her participation in mental health services and parenting classes, requiring Respondent to pay the costs of any visitation, permitting the guardian to suspend visitation, ceasing reunification efforts, relieving Petitioner of further responsibility in the matter, and prohibiting Respondent from contacting the paternal grandmother or Vince's father. The trial court also specifically found that

[s]ometime after 2:00 p.m. on the day of [the] hearing, [Respondent] came to the courthouse and to the courtroom where the hearing was scheduled. She had not, in fact, worked third shift as she had conveyed to DSS, and gave no good cause for her failure to attend the hearing as scheduled.

¶ 7 In pro se motions seeking to vacate the permanency planning order and hold a new hearing, Respondent stated:

I was subpoena[ed] to attend Juvenile court on July 15, 2020 at 9:00AM EST. I was not going to make court in time, so I reached out to Union County Social Worker Crystal Harris via email at 9:37AM EST explaining why I was not able to attend until 1:00PM EST. Crystal responded at 10:21AM EST stating my hearing starts at 11:00AM EST. I told her I will have to be there at 1:00PM EST due to working third shift and attending a mandatory parenting class at noon.

¶ 8 Respondent subsequently filed a notice of appeal from the trial court's 3 August 2020 order.

II. Discussion

A. 15 July 2020 Permanency Planning Hearing

¶ 9 Respondent first argues that the trial court violated her procedural due process rights by failing to either continue the 15 July 2020 permanency planning hearing or make other accommodations to receive Respondent's input.

¶ 10 To preserve an issue for appeal, a party "must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1). "[E]ven constitutional challenges are subject to the same strictures of Rule 10(a)(1)." State v. Bursell , 372 N.C. 196, 199, 827 S.E.2d 302, 305 (2019) (citations omitted).

¶ 11 Before the trial court, Respondent never raised the issue of her procedural due process rights. In both her email to the social worker and her later appearance before the trial court on 15 July 2020, Respondent offered no legal argument as to why the hearing should be continued or held open. In her post-hearing motion to dismiss the juvenile petition Respondent argued that Petitioner, not the trial court, had violated her constitutional rights. Respondent also filed post-hearing motions seeking to vacate the trial court's order and to extend the permanency planning hearing. In these motions, however, Respondent only generally asserted that the matter "needs to be heard again" and that the trial court was required "to allow a fair, unbiased hearing which [it] did not abide by."

¶ 12 In these circumstances, Respondent has failed to "present[ ] to the trial court a timely request, objection, or motion, stating the specific" procedural due process grounds for the ruling she desired, see N.C. R. App. P. 10(a)(1), and this issue is not preserved for appellate review.

¶ 13 We recognize that Respondent was proceeding pro se at the time of the 15 July 2020 permanency planning hearing. Nonetheless, our courts have consistently held that the Rules of Appellate Procedure "apply to everyone—whether acting pro se or being represented by all of the five largest law firms in the state." Bledsoe v. Cnty. of Wilkes , 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999) (per curiam). Moreover, Respondent has been assigned counsel on multiple occasions yet chose to represent herself, most recently signing a waiver of her right to counsel on 5 February 2020.

B. Challenges to Visitation Provisions

¶ 14 Respondent next raises two challenges to the visitation provisions of the 3 August 2020 permanency planning order. First, Respondent argues that the trial court erred by directing Respondent to pay the costs of supervised visitation because the trial court's findings concerning Respondent's financial status were unsupported by competent evidence. Second, Respondent argues that the trial court's order must be reversed because it impermissibly allows the guardian to determine when Respondent may visit Vince and or to suspend visitation.

¶ 15 In its 3 August 2020 permanency planning order, the trial court ordered that

[Respondent] shall not be allowed to have visitation with [Vince] until such [time] that she provides [the guardian] verification that she is engaged in Mental Health services and Parenting classes. At such time that [Respondent] provides valid proof of said participation she shall be allowed a minimum of one time per month supervised visitation at the Mecklenburg County supervised visitation center.

If [Respondent] does exercise visitation at the visitation center she shall behave appropriately and follow the restrictions of the visitation center. If her behavior is inappropriate, [the guardian] may suspend the visitation until such time that the juvenile's therapist deems it appropriate for her to resume her visitation.

[Respondent] shall be responsible for paying the cost associated with the services at the visitation center.

¶ 16 We must first...