In re: C.P., 258 N.C. App. 241

Background

Juvenile C.P. ("Carl"), born ~2002, was the subject of an Orange County juvenile petition filed July 14, 2015, alleging he was neglected and dependent; initial 2015 order placed custody with his adult half-brother.
October 2016 Court of Appeals decision reversed and remanded for a new adjudicatory hearing because the prior order lacked a proper adjudication or valid consent.
On March 2, 2017, the trial court conducted adjudication, disposition, and permanency planning hearings the same day and entered an order (Mar. 21, 2017) adjudicating Carl neglected and dependent, ceasing reunification efforts, and awarding permanent guardianship to his half-brother, Chris.
Mother appealed; she failed to serve the juvenile’s guardian with her notice of appeal but the Court of Appeals allowed review by certiorari.
The court found mother posed risks to Carl (medication misuse, substance use, inability to care for child, fractured relationship), and concluded reunification would be futile; guardian ad litem and OCDSS conceded some procedural/finding errors in the order.

Issues

Issue	Plaintiff's Argument (OCDSS / GAL)	Defendant's Argument (Mother)	Held
Whether Carl could be adjudicated dependent when living with a responsible adult relative	Argues dependency proper given safety concerns	Argues dependency improper because Carl had an appropriate relative caregiver	Reversed: dependency adjudication vacated because Carl had an appropriate alternative child care arrangement (not "dependent")
Whether the court could cease reunification at the initial permanency planning hearing	Argues reunification could be ceased based on findings of futility and danger	Argues statutory scheme requires reunification as concurrent plan and prior notice before cessation	Affirmed in part: court may cease reunification where findings show futility/danger, but court erred by not including reunification in the initial concurrent plan and by omission of required statutory notice/procedural findings per some statutory language
Whether the trial court erred by not ordering reunification as a concurrent permanent plan	OCDSS/GAL acknowledged omission was error but contend findings supported cessation	Mother argues statutory requirement that reunification remain a concurrent plan was not followed	Vacated that part of the order: trial court erred by failing to include reunification as part of the initial concurrent plan
Whether guardianship to a non-parent could be ordered without required statutory findings and constitutional unfitness finding	GAL/OCDSS: guardianship appropriate given child’s best interest and family placement	Mother: court failed to make required §7B-906.1(e)(1) findings and failed to find parent unfit before awarding non-parent guardianship	Mixed: court erred by omitting the §7B-906.1(e)(1) finding (vacated on that ground); mother waived appellate review of the constitutional unfitness argument because she never raised it below

Key Cases Cited

In re K.P., C.P., 790 S.E.2d 744 (N.C. Ct. App.) (remand required where prior adjudication lacked proper hearing or valid consent)
In re P.M., 610 S.E.2d 403 (N.C. Ct. App.) (definition and elements of "dependent" juvenile under juvenile code)
In re H.L., 807 S.E.2d 685 (N.C. Ct. App.) (held trial court may cease reunification at first permanency hearing where findings show futility)
In re B.G., 677 S.E.2d 549 (N.C. Ct. App.) (parental unfitness or inconsistent conduct required before applying best-interest test between parent and nonparent)
In re P.A., 772 S.E.2d 240 (N.C. Ct. App.) (trial court should make required findings when awarding guardianship to non-parent)
In re T.P., 718 S.E.2d 716 (N.C. Ct. App.) (issue preservation requires raising constitutional custodial objections in trial court)
In re R.P., 798 S.E.2d 428 (N.C. Ct. App.) (waiver absent objection only where parent had opportunity to raise issue below)
In re Civil Penalty, 379 S.E.2d 30 (N.C. 1989) (Court of Appeals panels are bound by prior panels unless overruled by higher court)