In re: E.M.Â, 249 N.C. App. 44

Background

In April 2014 DSS took E.M. ("Eddie") into nonsecure custody after allegations that his father sexually abused Eddie’s half‑sister and Respondent (the mother) knew but failed to report. Eddie was adjudicated neglected; his sister abused/neglected.
Eddie was placed with paternal cousins and did well there; Respondent completed many services but had unstable housing/relationships and limited income; she had a history of not reporting abuse and difficulty implementing parenting recommendations.
District court initially set reunification as the permanency plan (Dec. 2014), later adopted a concurrent plan (Mar. 2015), and at the August 27, 2015 permanency planning review (PPR) hearing the court announced it would cease reunification and award custody to the paternal cousins; the written PPR order was filed Oct. 8, 2015.
The PPR order: changed the plan to custody/guardianship with relatives, granted legal custody to the paternal cousins, ordered supervised visitation (at Respondent’s expense), and waived further review hearings.
Respondent appealed arguing: many factual findings lacked evidentiary support/preservation; statutory findings required by N.C. Gen. Stat. §§ 7B‑906.1(d)(3), 7B‑906.1(j), 7B‑906.1(n), and (e)(2) were missing or inadequate; the court ordered Respondent to pay supervised‑visit costs without findings on ability to pay; and the court failed to apply/announce the clear‑and‑convincing standard when finding Respondent’s conduct inconsistent with parental rights.

Issues

Issue	Respondent's Argument	DSS/Guardian's Argument	Held
Whether factual findings in the PPR order were unsupported and/or unpreserved	Many findings relied on reports not admitted into evidence and thus lacked clear, cogent, competent support	Hearing transcript shows reports were referenced without objection; courts may consider written reports at PPR hearings	Most challenges were unpreserved; where preserved, evidence (reports and testimony) supported the contested findings; court’s consideration of reports was proper
Whether court properly ceased reunification under the statutory standard	The Oct. 8, 2015 written order should be governed by amended § 7B‑906.2(b) (effective Oct. 1, 2015); or, if older § 7B‑906.1(d)(3) applies, findings do not show reunification would be futile/unsafe	The PPR hearing occurred Aug. 27, 2015, so pre‑Oct. 1 statute (§ 7B‑906.1(d)(3)) governs; the court’s factual findings (failure to report abuse, parenting deficits, unstable relationships, failure to follow safety recommendations) support futility/unsafe conclusion	§ 7B‑906.1(d)(3) governs (hearing date); the court’s findings support the conclusion that reunification would be futile/inconsistent with child’s need for a safe, timely permanent home
Whether district court had adequate evidence that custodial relatives understood legal significance and had adequate resources (§ 7B‑906.1(j))	No sufficient evidence that custodians understood legal significance of custody; and court failed to make adequate findings on that point	DSS pointed to detailed evidence of custodians’ resources and that child’s needs were met	Evidence supported adequacy of the custodians’ resources, but the record lacked evidence that the custodians (husband in particular) understood the legal significance of custody; custody award vacated as to this point and remanded to obtain/support that finding
Whether court could waive future review hearings and whether it properly required Respondent to pay supervised‑visit costs and applied clear‑and‑convincing standard regarding parental‑rights inconsistency	Court failed to make the specific findings required by § 7B‑906.1(n) to waive reviews; ordered Respondent to pay visit costs without findings on ability to pay; failed to state that it applied clear‑and‑convincing proof when finding Respondent’s conduct inconsistent with parental rights	Court argued findings implicitly supported waiver and other decisions	Court must vacate waiver of future reviews because required § 7B‑906.1(n) findings and the burden of proof were not stated; order requiring Respondent to pay supervised‑visit costs must be vacated/remanded for findings on ability to pay; and the court must state/apply the clear‑and‑convincing standard when making constitutional parental‑rights findings

Key Cases Cited

In re C.M., 183 N.C. App. 207 (N.C. Ct. App.) (standards for reviewing cessation of reunification and permanency findings)
In re N.G., 186 N.C. App. 1 (N.C. Ct. App.) (abuse of discretion standard defined)
Adams v. Tessener, 354 N.C. 57 (N.C.) (parental custody loss requires clear and convincing proof that conduct is inconsistent with parental rights)
In re P.A., 772 S.E.2d 240 (N.C. Ct. App.) (court must have evidence to find guardian has adequate resources and understands legal significance)
In re M.D., 200 N.C. App. 35 (N.C. Ct. App.) (failure to state applicable burden of proof in order is reversible unless record clearly shows the correct standard was applied)
Bennett v. Hawks, 170 N.C. App. 426 (N.C. Ct. App.) (vacatur required where court did not indicate it applied clear and convincing standard)
In re J.C., 368 N.C. 89 (N.C.) (per curiam) (court must find parent’s ability to pay supervised visitation costs before imposing them)