In re: A.C.

• Court: Court of Appeals of North Carolina
• Decided: November 16, 2021
• Docket: 20-508
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-280

No. COA20-508

Filed 16 November 2021

New Hanover County, No. 16 JA 60

IN THE MATTER OF: A.C.

Appeal by respondent-father from order entered 13 November 2019 by Judge

J. H. Corpening, II in New Hanover County District Court. Heard in the Court of

Appeals 9 March 2021.

Jennifer G. Cooke for petitioner-appellee New Hanover County Department of Social Services.

Benjamin J. Kull for respondent-appellant father.

Administrative Office of the Courts, by Guardian Ad Litem Appellate Counsel Matthew D. Wunsche, for guardian ad litem.

GORE, Judge.

¶1 Respondent-father appeals from an Order concluding he acted inconsistently

with his constitutional rights as a parent and granting guardianship of the juvenile

to the juvenile’s foster parents. Because the trial court erred by applying an improper

evidentiary standard and failed to make the statutorily required findings before

ceasing reunification efforts toward guardianship, we vacate and remand for a new

permanency planning hearing. IN RE A.C.

Opinion of the Court

I. Background

¶2 In its Order on Adjudication and Disposition filed 29 April 2016 (“April 2016

Order”), the trial court adjudicated the juvenile (“Andy”)1 dependent and neglected

as defined by N.C. Gen. Stat. §§ 7B-101(9) and (15) based on “the stipulation of the

Respondent-Parents, Guardian ad Litem (“GAL”) and [New Hanover County

Department of Social Services].” N.C. Gen. Stat. §§ 7B-101(9), (15) (2019).

Subsequently, respondent-mother voluntarily relinquished her rights, and

respondent-father’s parental rights were involuntarily terminated in the trial court’s

Order Terminating Parental Rights filed 11 October 2017 (“October 2017 Order”).

¶3 Respondent-father appealed the judicial termination of his parental rights.

This Court vacated the October 2017 Order due to service deficiencies in an opinion

filed on 5 June 2018. In re A.J.C., 259 N.C. App. 804, 817 S.E.2d 475 (2018).

Respondent-mother subsequently revoked her voluntary relinquishment of her

parental rights. In the Subsequent Permanency Planning Hearing Order filed 15

October 2018 (“October 2018 Order”), the trial court found respondent-father was

eagerly pursuing reunification with Andy and had participated in a residential

substance abuse treatment program, despite not producing records or signing

releases to show his case plan progress. Andy remained in foster care and had been

1 Pseudonyms are used for all relevant persons throughout this opinion to protect the identity

of the juvenile and for ease of reading. IN RE A.C.

diagnosed with many mental health conditions. In the October 2018 Order, the trial

court changed the permanent plan from adoption to a permanent plan of

“guardianship with a court approved caretaker with a concurrent plan of

reunification.”

¶4 In its Subsequent Permanency Planning Hearing Order filed 30 April 2019,

the trial court found respondent-father continued to cooperate with DSS, receive

substance abuse treatment and pass drug tests, maintain safe and appropriate

housing, and to attain adequate finances. However, the trial court subsequently

reviewed a GAL September 2019 report indicating that respondent-father’s therapy

had not resulted in him modifying his behavior regarding boundaries, consistent

action regarding Andy, and displays of physical affection that made Andy

uncomfortable. The trial court also considered the following corresponding testimony

from a counselor, psychologist, DSS employee, and respondent-father at the 26

September 2019 permanency planning hearing: Andy had negative reactions after

visits with respondent-father; respondent-father tested positive for a prescribed

medication only once, suggesting he may not have been taking his prescription

medications; instances where respondent-father did not adequately supervise Andy

during visits; respondent-father was not aware of the medication Andy was taking

despite attending doctor visits; respondent-father blamed the foster parents and DSS

for Andy’s mental health concerns; and respondent-father did not pay attention to the IN RE A.C.

doctor at a doctor’s appointment for Andy.

¶5 During the 26 September 2019 permanency planning hearing, respondent-

father did not raise the issue of his constitutionally protected status as a parent.

Respondent-father also did not object to arguments that he had acted contrary to his

constitutionally protected status as a parent, or the trial court’s award of

guardianship to the foster parents. In closing arguments, respondent-father’s

attorney asked the trial court “to deny the guardianship today[,] . . . [grant] extended

visitation to start off at two times a week[,] . . . [and] start family therapy . . .

addressing issues related to reunification.”

¶6 In its final remarks and oral order at the 26 September 2019 permanency

planning hearing, the trial court did not specifically mention respondent-father’s

constitutionally protected parental status, but specifically granted guardianship to

the foster parents. The trial court’s final remarks and oral order came immediately

after the DSS attorney’s closing, where she repeatedly argued respondent-father had

acted inconsistently with his constitutionally protected right as a parent and

guardianship was appropriate.

¶7 In its Juvenile Order filed 9 October 2019, the trial court granted guardianship

to the foster parents. In its Subsequent Permanency Planning Hearing Order filed 13

November 2019 (“November 2019 Order”), the trial court determined respondent-

mother and respondent-father had “acted inconsistently with their constitutional IN RE A.C.

rights to parent” and that “it is in [Andy’s] best interest and welfare for guardianship

to be granted to [the foster parents].” The trial court made the findings of fact in the

November 2019 Order “by sufficient and competent evidence.”

¶8 Respondent-father appeals the November 2019 Order and argues (1) the trial

court applied the incorrect evidentiary standard in its conclusion he acted

inconsistently with his constitutional right to parent Andy; (2) even if the trial court

applied the correct evidentiary standard in reaching that conclusion, the findings do

not support the conclusion; and (3) the findings do not support the trial court’s

“conclusion that reunification efforts clearly would be unsuccessful or inconsistent

with [Andy’s] health or safety.”

¶9 The GAL and DSS argue respondent-father waived appellate review of the trial

court’s finding he acted inconsistently with his constitutionally protected status as a

parent because he did not object on that basis, raise the issue before the trial court,

or present any evidence regarding his constitutionally protected parental status.

Further, the GAL admits “the [November 2019 Order] mistakenly states that the trial

court applied a ‘sufficient and competent’ standard to the evidence in making its

findings of fact rather than the required ‘clear and convincing’ standard,” but DSS

and the GAL portray the mistake as harmless.

II. Evidentiary Standard IN RE A.C.

¶ 10 Respondent-father first argues that the trial court failed to apply the proper

evidentiary standard when concluding that respondent-father acted inconsistently

with his constitutionally protected parental status. Respondent-father asserts the

trial court erred by stating in its order that all findings of fact were based on

“sufficient and competent evidence” as opposed to clear and convincing evidence.

¶ 11 “Findings in support of the conclusion that a parent acted inconsistently with

the parent’s constitutionally protected status are required to be supported by clear

and convincing evidence.” In re K.L., 254 N.C. App. 269, 283, 802 S.E.2d 588, 597

(2017) (citing Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001)). Our

Supreme Court has held that when a trial court fails to apply the clear and convincing

evidence standard when making findings of fact in support of a conclusion that a

parent has acted inconsistently with their constitutionally protected status, the case

“must be remanded for findings of fact consistent with this standard of evidence.”

David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753-54 (2005).

¶ 12 DSS concedes that the written order lists the wrong standard of evidence.

However, DSS argues the error was harmless and the trial court nonetheless applied

the proper standard in making the findings. DSS cites no authority for this argument,

nor points to any evidence the trial court applied the proper standard. Similarly, the

GAL argues the error was harmless as a mere drafting error and because the order

and the evidence satisfy the correct standard, we should not vacate the order. The IN RE A.C.

GAL relied on a footnote found in In re Pope to make this argument. 144 N.C. App.

32, 38, n.4, 547 S.E.2d 153, 157, n.4, aff’d per curiam, 354 N.C. 359, 554 S.E.2d 644

(2001). However, In re Pope involves the termination of parental rights, for which the

legal standard is whether there is a probability of repetition of neglect. N.C. Gen.

Stat. § 7B-1111(a)(1) (2019). The analysis in In re Pope is not controlling because it

involves a different standard than the case sub judice.

¶ 13 Here, the trial court did not state the standard used in its oral ruling. The trial

court’s written order states, “the Court makes the following FINDINGS OF FACT by

sufficient and competent evidence.” Based on the record, we cannot conclude the trial

court applied the proper clear and convincing evidence standard and thus remand for

findings of fact consistent with the proper standard of evidence.

III. Constitutionally Protected Parental Status

¶ 14 Respondent-father argues the trial court erred because the findings do not

support the conclusion that he acted inconsistently with his constitutionally protected

parental status. Respondent-father asserts that several of the trial court’s findings

instead acknowledge his progress, participation, involvement, and availability in

Andy’s life. Respondent-father also contends that in other findings the trial court

misconstrued the evidence and the evidence does not support the findings of fact.

¶ 15 “[A] natural parent may lose his constitutionally protected right to the control

of his children in one of two ways: (1) by a finding of unfitness of the natural parent, IN RE A.C.

or (2) where the natural parent’s conduct is inconsistent with his or her

constitutionally protected status.” David N., 359 N.C. at 307, 608 S.E.2d at 753

(2005). “[T]he decision to remove a child from the custody of a natural parent must

not be lightly undertaken. Accordingly, a trial court’s determination that a parent’s

conduct is inconsistent with his or her constitutionally protected status must be

supported by clear and convincing evidence.” Adams, 354 N.C. at 63, 550 S.E.2d at

503 (2001) (citation omitted).

¶ 16 “This Court reviews the conclusion of whether a parent has acted

inconsistently with her constitutionally protected rights de novo and to determine

whether it is supported by clear and convincing evidence.” In re B.R.W. & B.G.W.,

2021-NCCOA-343, ¶ 34 (cleaned up).

¶ 17 This Court has issued conflicting rulings on the issue of appellate review of

conclusions that a parent has acted inconsistently with their constitutionally

protected status. Often panels sitting mere weeks apart have issued opinions taking

diverging lines of analysis on this issue. See In re B.R.W. & B.G.W, 2021-NCCOA-

343, ¶¶ 36-41; In re N.Z.B., 2021-NCCOA-345, ¶¶ 16-22; In re M.F., 2021-NCCOA-

368, ¶¶ 22-23. This Court would benefit from the guidance of our Supreme Court

concerning when and how the constitutional issue of whether parents have acted

inconsistently with their constitutionally protected rights must be raised and

preserved in the trial court. However, until our Supreme Court provides much needed IN RE A.C.

clarity, we must proceed and evaluate the cases before us despite conflicting and

divergent precedent.

¶ 18 In the case sub judice, we decline to address the conflicting analyses in this

Court’s precedent, because the disposition in the present case is unaffected by the

line of analysis utilized.

IV. Reunification Efforts

¶ 19 Respondent-father argues the trial court erred in ceasing reunification efforts

because the findings do not support the conclusion that reunification efforts clearly

would be unsuccessful or inconsistent with Andy’s health or safety.

¶ 20 At a permanency planning hearing a trial court must adopt reunification as

either a primary or secondary permanent plan unless the requirements of N.C. Gen.

Stat. § 7B-906.2(b) are met. Respondent-father argues we should apply the version of

§ 7B-906.2(b) before the statute’s 2019 amendment, because the amendment went

into effect on 1 October 2019 and the permanency planning hearing in the case sub

judice was held on 26 and 30 September 2019, before the amendment went into effect.

¶ 21 Under the version of the statute in effect as of the hearing dates, reunification

efforts did not automatically cease upon the achievement of the permanent plan.

Respondent-father requested the trial court order family therapy and a trial home

placement as part of continuing renunciation efforts.

¶ 22 The GAL and DSS argue the amended version of the statute applies. We agree. IN RE A.C.

¶ 23 “Pending” is defined as “[r]emaining undecided [or] awaiting decision.” In re

E.M., 249 N.C. App. 44, 51, 790 S.E.2d 863, 870 (2016) (citing Pending, Black’s Law

Dictionary (9th ed. 2009)). In re E.M., involved the same determination of the

applicability of requirements from an amendment to § 7B-906.2(b) as the present

case. In In re E.M., this Court concluded the case was no longer pending because the

trial court announced its decision to cease reunification efforts at the conclusion of

the permanency planning hearing. Id. In contrast, while the trial court in the case

sub judice did announce its award of guardianship at the conclusion of the

permanency planning hearing, it did not announce a decision as to reunification

efforts. Thus, we conclude the matter remained pending until the order was entered

on 13 November 2019, and the 2019 amendment to § 7B-906.2(b) is applicable.

¶ 24 Section 7B-906.2(b), following the 2019 amendment provides:

At the permanency planning hearing, the court shall adopt concurrent permanent plans and shall identify the primary plan and secondary plan. Reunification shall be a primary or secondary plan unless the court made findings under G.S. 7B-901(c) or G.S. 7B-906.1(d)(3), the permanent plan is or has been achieved in accordance with subsection (a1) of this section, or the court makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety. The finding that reunification efforts clearly would be unsuccessful or inconsistent with the juvenile’s health or safety may be made at any permanency planning hearing. Unless permanence has been achieved, the court shall order the county department of social services to make efforts toward finalizing the primary and secondary permanent IN RE A.C.

plans and may specify efforts that are reasonable to timely achieve permanence for the juvenile.

N.C. Gen. Stat. § 7B-906.2(b) (2019) (emphasis added). Following the 2019

amendment, findings that reunification clearly would be unsuccessful or would be

inconsistent with the juvenile’s health or safety are required to cease reunification

(i.e., remove reunification as a primary or secondary plan), but are not required if the

permanent plan has already been achieved.

¶ 25 The parties’ arguments over which version of the statute is applicable is

irrelevant. Neither permanent plan could have been achieved until the entry of the

court’s orders of 9 October 2021 and 13 November 2021.

¶ 26 At every permanency planning hearing, the court shall identify the primary

and secondary plan and unless permanence has been achieved, the court shall order

DSS to make efforts towards finalizing both the primary and secondary plans, which

here includes reunification. Until entry of the court’s permanency planning order,

DSS was under the obligation to continue reunification efforts as reunification was

one of the two required plans.

¶ 27 Here, Andy’s permanent plan of guardianship with his foster parents was not

achieved until after the permanency planning hearing subject to this appeal. The

court orally announced its intention to award guardianship at the conclusion of the

30 September 2019 hearing. It entered its order awarding legal guardianship to the IN RE A.C.

foster parents on 9 October 2019. DSS’ strategic submission of one order ahead of

another order does not remove the court’s statutory obligation to take evidence and

make written findings of fact by clear and convincing evidence of the four statutory

factors required before ceasing reunification efforts with respondent-father. N.C.

Gen. Stat. § 7B-906.2(b).

¶ 28 We vacate and remand for a new permanency planning hearing to apply all

appropriate evidentiary standards. Upon remand if the trial court wishes to remove

reunification as a permanent plan, the trial court is bound by statute to make all four

findings consistent with N.C. Gen. Stat. § 7B-906.2(d). See In re A.W., 2021-NCCOA-

182, ¶ 42 (holding to cease reunification the trial court must make the statutorily

required findings of fact related to whether parent demonstrated degree of failure

necessary to support ceasing reunification efforts).

V. Conclusion

¶ 29 The trial court failed to apply the proper evidentiary standard in making

findings of fact to support its conclusion that respondent-father acted inconsistently

with his constitutionally protected status as a parent. The court failed to make

findings of fact to support its order which ceased reunification efforts and awarded

guardianship to foster parents. Thus, we must vacate the 12 November 2019 order

and remand for a new permanency planning hearing consistent with this opinion.

VACATED AND REMANDED. IN RE A.C.

Judges TYSON and MURPHY concur.