260 N.C. App. 547
N.C. Ct. App.2018Background
- Two children (Kevin b.2008; Iliana b.2012) were placed with their maternal grandmother after DSS received reports in 2014–2016 of hoarding/unsafe housing, parental substance use, domestic violence, and homelessness. DSS filed juvenile petitions on August 10, 2016; nonsecure custody obtained the same day.
- Trial court adjudicated the juveniles dependent (Oct. 2016) and ordered parents to submit to random drug screens, engage in substance-abuse and mental-health treatment, and follow recommendations.
- Permanency plan (Mar. 2017) set primary plan: guardianship with maternal grandmother; secondary plan: reunification. At the June 15, 2017 permanency hearing the court continued reunification efforts.
- By October 5, 2017, DSS reported mixed compliance: parents had improved participation in services since March 2017 (therapy, substance‑abuse groups, parenting and domestic‑violence classes), but had a long history of substance abuse, isolated positive drug tests (Jan. 2017), missed/refused screens in June 2017, and suspected impairment at some family events.
- On November 7, 2017 the trial court (1) ceased reunification efforts and (2) awarded guardianship to the maternal grandmother. Parents appealed.
Issues
| Issue | Petitioner/Appellee Argument | Respondents/Appellants Argument | Held |
|---|---|---|---|
| Whether court may award guardianship to nonparents without finding parents unfit or that their conduct was inconsistent with parental constitutional status | DSS/GAL did not dispute lack of specific finding below and argued waiver for failure to object | Parents argued the court failed to make the required finding of unfitness or inconsistency with constitutionally protected parental rights | Court: Vacated guardianship award and remanded — trial court must find parents unfit or that their conduct is inconsistent before applying best‑interest test (no waiver because parents were not allowed to be heard) |
| Whether trial court properly ceased reunification efforts under N.C.G.S. § 7B‑906.2 | DSS/GAL relied on parents’ history, limited recent lapses, and the court’s conclusion that further reunification would be inconsistent with children’s health/safety | Parents argued improved compliance since March 2017 and that findings were insufficient and not supported by clear and convincing evidence to cease reunification | Court: Vacated and remanded — findings were too vague/mixed to support cessation; trial court must make specific, adjudicated findings (including those enumerated in § 7B‑906.2(d)) or findings under § 7B‑901(c) |
| Whether parents waived right to findings by failing to raise the issue at hearing | DSS/GAL asserted waiver because parents didn’t request specific findings below | Parents argued they were prevented from being heard at the hearing and thus could not waive | Court: No waiver — trial court curtailed argument, so appellate review permitted |
| Whether evidence supported supervised visitation decision (raised by Patty) | GAL/DSS maintained supervision appropriate given history | Patty argued visitation did not require supervision | Court: Issue abandoned on appeal for lack of appellate argument and authority; not decided on merits |
Key Cases Cited
- Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997) (recognizes natural parent’s constitutionally protected interest in custody and that it may be lost only by unfitness or conduct inconsistent with parental status)
- David N. v. Jason N., 359 N.C. 303, 608 S.E.2d 751 (2005) (same two‑route framework for loss of parental rights: unfitness or inconsistent conduct)
- In re D.M., 211 N.C. App. 382, 712 S.E.2d 355 (2011) (trial court must find unfitness or inconsistent conduct before applying best‑interest test against a parent)
- In re B.G., 197 N.C. App. 570, 677 S.E.2d 549 (2009) (same rule: best‑interest custody between parent and nonparent requires prior finding of unfitness or inconsistency)
- In re R.A.H., 182 N.C. App. 52, 641 S.E.2d 404 (2007) (appellate review of permanency planning orders examines whether findings are supported by competent evidence and whether conclusions follow)
- In re T.R.M., 208 N.C. App. 160, 702 S.E.2d 108 (2010) (conclusions of law in permanency orders reviewed de novo)
- In re F.G.J., M.G.J., 200 N.C. App. 681, 684 S.E.2d 745 (2009) (on remand courts may exercise discretion whether to receive additional evidence)
- In re M.K., 241 N.C. App. 467, 773 S.E.2d 535 (2015) (noting appellate courts cannot meaningfully review conclusions absent adjudicated findings of fact)