In re: K.L. & R.E.Â
254 N.C. App. 269
| N.C. Ct. App. | 2017Background
- DSS filed neglect petitions for K.L. and R.E. in Jan. 2014; juveniles were adjudicated neglected by stipulation in June 2014; custody was placed with a relative sibling (Ms. E.) while DSS was to continue reunification efforts.
- Trial court’s Jan. 15, 2015 permanency order named custody with Ms. E. as permanent plan but also directed DSS to continue reunification efforts; this Court remanded for a visitation schedule and affirmed minimal findings.
- At the Jan. 19, 2016 subsequent permanency hearing DSS recommended case closure, admitted it had not worked toward reunification since the prior appeal, and offered no services to respondent since Jan. 2015.
- The May 12, 2016 permanency order (on appeal) (1) included a visitation schedule, (2) found reasonable reunification efforts would be futile and inconsistent with the children’s safety, and (3) ordered legal and physical custody remain with Ms. E.; the court also purported to relieve periodic review hearings.
- The Court of Appeals vacated/reversed parts of that order and remanded, holding the trial court failed to make statutorily required, adequately supported findings before eliminating reunification as a concurrent permanent plan and before waiving further review hearings.
Issues
| Issue | Respondent's Argument | DSS's/Guardian's Argument | Held |
|---|---|---|---|
| Whether trial court properly ceased reunification efforts under § 7B‑906.1(d) / § 7B‑906.2 | Trial court stopped reunification without present evidence or findings showing reunification would be futile; DSS offered no services since Jan. 2015 | Prior findings and earlier orders suffice; reunification could be eliminated | Reversed: court lacked necessary, specific evidentiary findings to cease reunification; vacate conclusion that reunification was futile |
| Whether court made required findings about likelihood of placement with parent within 6 months under § 7B‑906.1(e) | Court failed to make specific findings about six‑month placement prospects and whether family therapy remained necessary | Prior record minimally supported best‑interests finding | Remanded: trial court must make specific findings about six‑month prospects and therapy requirement before eliminating reunification |
| Whether trial court used correct standard for modifying custody (substantial change vs. § 7B‑906.1(i) review) | Respondent: juvenile permanency hearings are governed by § 7B‑906.1, not civil Chapter 50 substantial‑change standard | DSS relied on Chapter 50/substantial‑change analogy and In re A.C. | Reversed in part: court erroneously applied a "substantial change" test; custody/reunification must be evaluated under § 7B‑906.1(i) standards |
| Whether trial court lawfully waived further permanency reviews under § 7B‑906.1(n) | Waiver invalid because court did not make clear, cogent, and convincing findings on all five statutory prongs | DSS contended intent of court was clear despite wording | Reversed: waiver reversed — court failed to make required findings under § 7B‑906.1(n) before ending reviews |
Key Cases Cited
- In re L.M.T., 367 N.C. 165 (2013) (trial court’s written findings must show consideration of whether reunification would be futile or inconsistent with child’s safety)
- In re A.C., 786 S.E.2d 728 (N.C. App. 2016) (distinguishing juvenile review from civil custody rules where prior order relieved DSS and waived reviews)
- In re J.S., 792 S.E.2d 861 (N.C. App. 2016) (permanency planning orders governed by § 7B‑906.1, not § 7B‑1000)
- In re C.M., 183 N.C. App. 207 (2007) (standard of review for cessation of reunification efforts)
- In re A.E.C., 239 N.C. App. 36 (2015) (court must make findings addressing statute’s concerns about futility and child safety)
- Adams v. Tessener, 354 N.C. 57 (2001) (findings that a parent acted inconsistently with constitutionally protected parental status require clear and convincing evidence)
- Santosky v. Kramer, 455 U.S. 745 (1982) (terminating parental rights and findings affecting parental status require heightened evidentiary standards)