863 S.E.2d 202
N.C. Ct. App.2021Background
- Two daughters lived primarily with their paternal grandmother since birth; Mother left the home in 2015 and had only sporadic contact thereafter.
- DSS removed the children after a May 1, 2018 incident in which Father was intoxicated and violent; children were placed with grandmother and great-grandmother.
- Mother and Stepfather entered OHFSAs in July 2018 requiring assessments, parenting classes, drug screens, and stable housing; Mother completed most services and later obtained a larger home and unsupervised/overnight visitation.
- School staff, therapist, GAL, and DSS reported both children had Monday adjustment problems after weekend visits with Mother and expressed preference to live with grandmother.
- DSS revised its recommendation from reunification to guardianship; trial court awarded guardianship to grandmother, found Mother both unfit and that she acted inconsistently with her constitutional parental status, and applied the best-interest standard.
- On appeal the Court of Appeals affirmed the inconsistent-conduct/best-interest ruling but reversed the trial court’s separate unfitness conclusion.
Issues
| Issue | Mother's (Plaintiff) Argument | DSS/GAL (Defendant) Argument | Held |
|---|---|---|---|
| Whether Mother acted in a manner inconsistent with her constitutionally protected parental status, permitting use of the "best interest" test | Mother argued the finding lacked clear and convincing evidence and was contrary to other findings (e.g., completion of OHFSA, unsupervised visits) | DSS/GAL relied on Mother’s long absence (since 2015), grandmother’s longstanding caretaking role, children’s preference and adjustment problems after visits | Held: Court of Appeals affirmed — clear and convincing evidence supported conclusion Mother acted inconsistently with parental status, so best-interest standard was appropriate |
| Whether Mother is "unfit" as a parent (separate legal conclusion) | Mother argued trial court’s unfitness finding was unsupported given her substantial compliance with the case plan and negative drug screens | DSS/GAL argued totality of circumstances showed unfitness (long absence, failure to be primary caretaker) | Held: Reversed — findings did not support a conclusion Mother was unfit; unfitness not proven by clear and convincing evidence |
| Whether findings that reunification was impossible/contrary to children's health, safety, welfare are supported by competent evidence | Mother argued competent evidence (completion of services, DSS recommendation for trial home placement, unsupervised visitation) contradicted those findings | DSS/GAL pointed to children’s adjustment issues, their stated preference for grandmother, and Mother’s extended prior ceding of caregiving to grandmother | Held: Affirmed — competent evidence (GAL reports, therapist/school reports, history of Mother’s absence/having ceded care) supports findings that immediate reunification would be contrary to the children’s interests |
| Preservation/waiver: Did Mother waive appellate review of the constitutional objection by not objecting to trial court’s written findings? | Mother contended she preserved the issue by presenting evidence and arguing against guardianship at the hearing | DSS argued Mother should have objected at trial to the court’s finding that she acted inconsistently with parental rights | Held: Court found Mother preserved the issue by opposing guardianship and presenting evidence; appellate review was proper (but noted potential preservation issues for future guidance) |
Key Cases Cited
- Boseman v. Jarrell, 364 N.C. 537 (clarifies clear-and-convincing standard for conclusion that parent acted inconsistently with protected status)
- Owenby v. Young, 357 N.C. 142 (holding that once conduct inconsistent with parental status is found, best-interest standard may be applied)
- Petersen v. Rogers, 337 N.C. 397 (establishes that absent unfitness or neglect, parental custody rights prevail)
- Price v. Howard, 346 N.C. 68 (discusses voluntary nonparent custody and when parental status may yield)
- Adams v. Tessener, 354 N.C. 57 (trial-court findings viewed cumulatively to assess inconsistent conduct standard)
- In re L.M.T., 367 N.C. 165 (standard for appellate review of permanency planning findings)
- Raynor v. Odom, 124 N.C. App. 724 (reviews unfitness determination under totality of circumstances)
- Mason v. Dwinnell, 190 N.C. App. 209 (frame for asking whether parent acted inconsistently with custody rights)
- Estroff v. Chatterjee, 190 N.C. App. 61 (consideration of parent’s intentions in third‑party caregiving situations)
- Bennett v. Hawks, 170 N.C. App. 426 (fitness finding not prerequisite to granting custody to nonparent where inconsistent-conduct finding exists)
- In re T.N.H., 372 N.C. 403 (unchallenged factual findings are binding on appeal)
- In re C.P., 258 N.C. App. 241 (preservation of constitutional challenge to guardianship determinations)
- In re Gleisner, 141 N.C. App. 475 (trial court is sole judge of weight and credibility of contradictory evidence)
- Reynolds v. Reynolds, 109 N.C. App. 110 (court may consider child’s wishes when determining best interests)