265 N.C. App. 176
N.C. Ct. App.2019Background
- DSS investigated after reports that Mother's boyfriend, Travis Matthis, had physically harmed Benjamin and there had been a history of domestic violence; Mother voluntarily placed the children with family friend Kristen “Hope” Mitchell during the investigation.
- DSS implemented family services agreements for Mother and Matthis addressing therapy, medication compliance, parenting, and domestic violence counseling; both allegedly complied by the time of disposition.
- Mother stipulated to facts and to an adjudication of neglect (March 15, 2018); there was no adjudication of dependency.
- DSS recommended returning Benjamin to Mother but recommended legal and physical custody of Jeffrey to Ms. Mitchell (based largely on Jeffrey’s preference and length of placement).
- On disposition (May–June 2018) the trial court placed Benjamin and Jeffrey with Ms. Mitchell (DSS retained legal custody for Benjamin), limited Mother to supervised visitation, and entered a related civil custody order for Jeffrey.
- Mother appealed; the Court of Appeals granted certiorari to reach the civil custody order and reversed and remanded the dispositional and custody orders for lack of competent evidentiary findings supporting the conclusions.
Issues
| Issue | Mother’s Argument | DSS/Guardian Argument | Held |
|---|---|---|---|
| Whether trial court erred by not conducting a § 7B‑910 review within 90 days of voluntary placement | § 7B‑910 applies and a review/hearing was required; absence of required review affects placement validity | DSS contended § 7B‑910 may not apply because placement was not a foster-care placement by DSS | Record lacked the voluntary‑placement agreement so court could not resolve § 7B‑910 issue; remand required on other grounds |
| Whether findings re suitability of Ms. Mitchell and best interests were supported by competent evidence | No competent evidence was presented about Ms. Mitchell’s fitness or home; findings were conclusory | DSS relied on reports and child preference/length of placement | Reversed: findings about Ms. Mitchell (fitness, suitability, best interests) were not supported by competent evidence; conclusions cannot stand |
| Whether trial court could award custody to third party absent proof parent is unfit | Mother: custody to third party requires clear, convincing evidence that parent acted inconsistently with parental rights; no such evidence existed | DSS emphasized child’s wishes and continuity of placement | Reversed: no competent evidence supported that Mother was unfit or had acted inconsistently with parental rights; custody orders not supported |
| Whether civil custody order may be reviewed though not listed in appeal | Mother sought certiorari to include civil custody order omitted from notice | DSS did not oppose review on certiorari grounds | Court exercised discretion to grant certiorari and review the civil custody order |
Key Cases Cited
- In re J.C.B., 233 N.C. App. 641 (N.C. Ct. App. 2014) (granting certiorari appropriate where appeal lost for counsel’s failure to file notice)
- In re K.M.M., 242 N.C. App. 25 (N.C. Ct. App. 2015) (statutory error reviewed de novo)
- In re B.W., 190 N.C. App. 328 (N.C. Ct. App. 2008) (findings based on competent evidence bind appellate court)
- In re D.S.A., 181 N.C. App. 715 (N.C. Ct. App. 2007) (best-interest determinations reviewed for abuse of discretion)
- Hunt v. Hunt, 112 N.C. App. 722 (N.C. Ct. App. 1993) (best-interest conclusions of law must be supported by factual findings)
- Lamond v. Mahoney, 159 N.C. App. 400 (N.C. Ct. App. 2003) (conclusory recitation of best-interest standard insufficient)
- Davis v. Davis, 229 N.C. App. 494 (N.C. Ct. App. 2013) (trial court need not use "magic words" but findings must support rulings)
- In re I.K., 227 N.C. App. 264 (N.C. Ct. App. 2013) (parties cannot switch positions on appeal to obtain a different result; remand for proper findings/evidence)
- Price v. Howard, 346 N.C. 68 (N.C. 1997) (awarding custody to third party requires showing parent acted inconsistently with parental rights)
- Petersen v. Rogers, 337 N.C. 397 (N.C. 1994) (child’s preference/material advantages alone do not justify depriving a fit parent of custody)
- Clark v. Clark, 294 N.C. 554 (N.C. 1978) (child preference considered but never controlling; court must decide best interest)
- Moriggia v. Castelo, 805 S.E.2d 378 (N.C. Ct. App. 2017) (reiteration that third‑party custody requires proof parent acted inconsistently with parental rights)