In re D.M.
211 N.C. App. 382
N.C. Ct. App.2011Background
- DSS filed a juvenile petition on 9 April 2009 alleging Dana was neglected and dependent; Dana was eight years old at filing.
- Dana initially remained in custody with DSS and was placed in her maternal grandmother’s home after adjudication.
- A series of custody review hearings occurred; DSS retained custody and placement authority while Dana’s custody status fluctuated, including a placement with respondent-father at one point.
- Dana was removed from respondent-father’s home and returned to her maternal grandmother in February 2010; a permanency planning hearing followed in March 2010.
- On 7 April 2010, the court ordered the permanent plan to be custody with the maternal grandmother; by 20 July 2010, the court awarded permanent custody to the grandmother and limited visitation for respondent-father.
- Respondent-father appealed, challenging the constitutional basis for permanent custody and arguing the court failed to address his rights with appropriate findings of fact and conclusions of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether permanent custody to grandmother violated respondent-father’s parental rights | Dana’s father contends lack of findings on inconsistent conduct with parental rights. | Court purportedly applied standard without addressing parental rights consistency. | Reversed for lack of necessary findings and conclusions on consistency with parental rights. |
| Whether reasonable efforts were properly addressed for respondent-father | Reasonable efforts should be indicated for both parents when DSS removed the child from both, not just the mother. | Existing orders require no explicit reasonable efforts findings at permanency stage, and prior orders showed some efforts. | Remand to consider reasonable efforts for respondent-father; the record failed to address it adequately. |
| Whether visitation parameters were properly set or improperly delegated to the treatment team | Visitation should be defined by the court, not left entirely to discretion of the treatment team. | Discretionary visitation could be appropriate if supported by findings. | On remand, if custody remains with others, the court must set time, place, and conditions of visitation. |
Key Cases Cited
- In re P.O., 698 S.E.2d 525 (N.C. App. 2010) (review standard for permanency planning order and de novo review of law)
- In re B.G., 677 S.E.2d 549 (N.C. App. 2009) (constitutional analysis of parental rights in juvenile disposition)
- In re E.C., 621 S.E.2d 647 (N.C. App. 2005) (need for court-defined visitation parameters; judicial function of visitation awards)
- In re Helms, 491 S.E.2d 672 (N.C. App. 1997) (nonexclusive list of services may satisfy reasonable efforts)