848 S.E.2d 13
N.C. Ct. App.2020Background
- Iliana (born 2012) was placed with her maternal grandmother after concerns dating to 2014 about hoarding/unsafe housing, domestic violence, and parents’ substance abuse; juvenile petitions filed in 2016 and juveniles adjudicated dependent.
- A 27 March 2017 permanency order set primary plan of guardianship with grandmother and secondary plan of reunification; a 7 November 2017 order ceased reunification and awarded guardianship but this Court vacated and remanded for specific findings in August 2018.
- On remand the trial court held hearings in January 2019 and entered a 22 March 2019 Permanency Planning Order finding both parents acted inconsistently with their constitutionally protected parental status and awarding guardianship of Iliana to the maternal grandmother.
- The court’s factual findings emphasized ongoing problems with unsafe/unstable housing (a cluttered two‑bedroom trailer with structural issues), continuing substance use (positive hair tests and drug‑seeking texts), and domestic‑violence history.
- Parents appealed, arguing (inter alia) that clear and convincing evidence did not support the constitutional finding, required statutory findings lacked competent evidence, visitation terms were improper, and required notice about review‑motions was inadequate. The Court of Appeals (majority) affirmed; one judge concurred in part and dissented regarding father Isaac, concluding the record lacked competent evidence as to him.
Issues
| Issue | Petitioner (DSS) Argument | Respondents (Patty/Isaac) Argument | Held |
|---|---|---|---|
| Whether parents acted inconsistently with constitutionally protected parental status so that best‑interest test could apply | Trial court findings (housing, domestic violence, substance abuse) were supported by clear and convincing evidence and warranted treating parents as nonparamount for placement purposes | Findings unsupported by clear and convincing evidence; parents made progress and evidence (photos, testimony) undermined unsafe‑housing/domestic‑violence/drug findings | Majority: affirmed — clear and convincing evidence supported findings as to both parents overall; judge Murphy concurred re Patty but would reverse as to Isaac for lack of competent evidence |
| Whether statutory permanency findings (N.C. Gen. Stat. §§ 7B‑906.1, 7B‑906.2) supported appointment of guardian (maternal grandmother) | Findings that issues leading to removal remained unresolved, reunification would be unsuccessful/unsafe within a reasonable time, and guardianship was in child’s best interest were supported by evidence | Argued insufficient competent evidence to support statutory findings and that guardianship was not shown to be necessary | Court: findings supported statutory conclusions; no abuse of discretion in selecting guardianship as the permanent plan |
| Whether visitation plan (minimum one hour/week, supervised) was proper | Supervised visitation was supported by prior incidents of parents appearing under the influence, GAL and therapist recommendations, and child’s needs for predictability and safety | Parents argued supervision by maternal grandmother and limitation to one hour was unsupported and unnecessary | Court: visitation order complied with statute and was not an abuse of discretion; supervised visits justified by record |
| Whether the court failed to give required notice of right to file a motion to review visitation plan (N.C. Gen. Stat. § 7B‑905.1(d)) | Court provided oral notice in open court that it retained jurisdiction and the written order stated the matter could be brought back for review; any omission was harmless | Isaac argued the order failed to explicitly inform parties of right to file a motion to review visitation plan | Court: no reversible error — parties were informed in court and in writing and any deficiency was harmless (Isaac showed no prejudice) |
Key Cases Cited
- Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (N.C. 1997) (parental paramount interest may be lost if conduct is inconsistent with presumption parent acts in child’s best interest)
- In re A.C., 247 N.C. App. 528, 786 S.E.2d 728 (N.C. Ct. App. 2016) (clarifies fact‑sensitive nature and clear‑and‑convincing standard for finding conduct inconsistent with parental status)
- In re B.G., 197 N.C. App. 570, 677 S.E.2d 549 (N.C. Ct. App. 2009) (explains constitutional threshold required before applying best‑interest test against a natural parent)
- Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (N.C. 2001) (requires clear and convincing evidence to support finding parent acted inconsistently with protected status)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (recognizes fundamental parental right to make child‑rearing decisions)
- In re I.K.; In re K.M., 260 N.C. App. 547, 818 S.E.2d 359 (N.C. Ct. App. 2018) (prior opinion vacating the 2017 permanency order and remanding for the requisite constitutional findings)
- In re T.H., 832 S.E.2d 162 (N.C. Ct. App. 2019) (standard of review for permanency planning best‑interest determinations)