IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-960
Filed 21 May 2024
Onslow County, No. 23 JA 39
IN THE MATTER OF: B.L.M.-S.
Appeal by respondent-father from order entered 10 July 2023 by Judge James
W. Bateman, III in District Court, Onslow County. Heard in the Court of Appeals
1 May 2024.
No brief filed on behalf of petitioner-appellee Onslow County Department of Social Services.
Womble Bond Dickinson (US) LLP, by Jacob S. Wharton and Allison T. Pearl, for the guardian ad litem.
Edward Eldred for respondent-appellant father.
ARROWOOD, Judge.
Respondent-father appeals from the trial court’s order adjudicating his infant
son to be an abused and neglected juvenile, contending the trial court erred in its
disposition concerning visitation and reunification efforts. For the following reasons,
we affirm in part and remand.
I. Background IN RE: B.L.M.-S.
Opinion of the Court
“Ben”1 was born on 21 November 2022 to respondent-father and the mother,2
a young married couple living in Jacksonville. The Onslow County Department of
Social Services (“DSS”) became involved with the family on 27 January 2023 when it
received a report raising concerns about the child’s failure to thrive, broken ribs, and
exposure to domestic violence. Specifically, DSS learned that a primary care provider
became concerned by Ben’s failure to thrive at a routine appointment on
25 January 2023, and after the child was found to have lost more weight at a follow-
up visit the next day, Ben was admitted to a local hospital, where concerns about
possible fractures arose. Ben was transferred to ECU Health for medical treatment,
where he was discovered to have two broken ribs at different stages of healing.
The parents, who were Ben’s only caregivers, could not provide a satisfactory
explanation for the injuries, and respondent-father admitted to a social worker that
on more than one occasion when Ben cried, he squeezed and shook his son out of
frustration. Respondent-father also admitted to a Jacksonville Police Department
detective that he had once thrown Ben into the air and failed to catch the child and
further described squeezing Ben “with a force equivalent to that used to squeeze vice
grips.” As a result, respondent-father was charged with a single count of
misdemeanor child abuse. DSS also expressed concerns regarding domestic violence
between respondent-father and the mother. Due to these circumstances, DSS
1 The stipulated pseudonym for the juvenile. 2 The mother is not a party to this appeal.
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believed that respondent-father should not have any contact with Ben and that the
mother required supervision to care for Ben. Ben’s paternal grandmother began
residing with the mother and Ben in late January to assist with the child’s safety and
care.
Respondent-father was a United States Marine at the time Ben’s injuries were
identified. The Marine Corps entered a Military Protective Order (“MPO”) which
barred respondent-father from having any contact with the mother or Ben. On
13 February 2023, however, the mother met with respondent-father’s command
personnel to ask them to rescind the MPO so she could see respondent-father. When
command personnel refused to do so, the mother “became belligerent, flipped off said
command personnel, and sped out of the parking lot.”
After the mother informed DSS that she planned to take Ben out of North
Carolina at the end of February, DSS obtained nonsecure custody of the juvenile on
21 February 2023 and placed him in foster care. On the same date, DSS filed a
petition alleging that Ben was an abused and neglected juvenile. In each of three
subsequent orders on the need for continued nonsecure custody entered between
28 February and 5 April 2023, the district court concluded it was not in Ben’s best
interest to visit with respondent-father and barred respondent-father and the mother
from having contact with each other. On 4 May 2023, in a fourth order on the need
for continued nonsecure custody, the court allowed respondent-father one hour of
supervised visitation per week.
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The abuse and neglect petition was heard on 6 June 2023, and an adjudication
and initial disposition order was entered on 10 July 2023 in which Ben was
determined to be an abused juvenile as defined in N.C.G.S. § 7B-101(1) and a
neglected juvenile as defined in N.C.G.S. § 7B-101(15). In the adjudication portion of
the order, the district court made several findings of fact covering the circumstances
recounted above. The trial court concluded that reasonable efforts to reunify
respondent-father with Ben were not required and ordered respondent-father not to
have contact with the mother. The district court did not cease reunification efforts
with the mother and afforded her ten hours of supervised visitation with Ben, who
was placed with the maternal grandparents.
Respondent-father timely filed notice of appeal from the adjudication and
disposition order on 24 July 2023.
II. Discussion
In his appeal, respondent-father argues that (1) there were insufficient
findings to support the district court’s conclusion that reasonable reunification efforts
were not required; (2) the court erred in failing to address his visitation rights; (3) the
court exceeded its authority in ordering him to have no contact with the mother; and
(4) the court exceeded its authority in ordering that efforts to reunify him with Ben
to be ceased.
A. Standards of Review
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In reviewing orders entered under Chapter 7B, uncontested findings of fact are
binding on this Court. In re J.M., 384 N.C. 584, 591 (2023). Further, we do not
second-guess the district court’s “decisions as to the weight and credibility of the
evidence, and the inferences drawn from the evidence.” Id. (quoting In re D.W.P., 373
N.C. 327, 330 (2020)). Moreover,
dispositional choices—including the decision to eliminate reunification from the permanent plan—are reviewed for abuse of discretion. Abuse of discretion results where the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. In the rare instances when a reviewing court finds an abuse of discretion, the proper remedy is to vacate and remand for the trial court to exercise its discretion. The reviewing court should not substitute its own discretion for that of the trial court.
Id. (cleaned up).
B. Conclusion of Law that Reunification Efforts were not required
In an initial disposition—which must follow the adjudication of a child as an
abused, neglected, and/or dependent juvenile—a district court “shall direct that
reasonable efforts for reunification . . . shall not be required” in certain circumstances
and upon the entry of written findings supporting the court’s decision. N.C.G.S. §
7B-901(c) (2023); see also In re J.M., 384 N.C. at 592. One basis for not requiring
reunification efforts is a court’s “determination that aggravated circumstances exist
because the parent has committed or encouraged the commission of, or allowed the
continuation of,” inter alia, “chronic physical abuse.” N.C.G.S. § 7B-901(c)(1)(b)
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(cleaned up). A court’s “mere declaration” that such aggravating circumstances exist,
however, “without explaining what those circumstances are, is not sufficient to
constitute a valid finding for purposes of N.C.G.S. § 7B-901(c).” In re L.N.H., 382
N.C. 536, 547 (2022) (citations omitted). Rather, written findings that explain the
aggravating circumstances are necessary. Id.
Here, the disposition portion of the order appealed from includes a
determination that respondent-father “has committed or encouraged the commission
of, and/or allowed the continuation of chronic physical abuse of the juvenile.”
Respondent-father acknowledges that the district court found as fact the following:
11. That the juvenile was diagnosed with two rib fractures in different stages of healing; that Respondents were the sole caregivers for the juvenile; and that the Respondents have not offered a plausible explanation for the injuries sustained by the juvenile except for non-accidental means.
12. That the juvenile’s injuries were inflicted on more than one (1) occasion.
13. That Respondent father admitted that when the juvenile cried, he became frustrated, he held the juvenile tightly, squeezed the juvenile, and shook the juvenile on more than one occasion.
14. That Respondent father admitted to Detective Peck, Sr. of the Jacksonville Police Department that the Respondent father threw the juvenile in the air and then fumbled or dropped the juvenile, and that Respondent father squeezed the juvenile with a force equivalent to that used to squeeze vice grips.
15. That Respondent mother admitted that Respondent father was too rough with the juvenile.
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16. That Respondent father was criminally charged . . . with one count of misdemeanor child abuse; that said charges were dismissed; and that Detective Peck indicated that felony charge(s) were likely to be filed.
But respondent-father characterizes these findings as merely “suggest[ing]” that he
broke two of Ben’s ribs and failing to “affirmatively state [respondent-father] caused,
or encouraged, or allowed Ben to be abused.” He notes that the court did not
specifically find him at fault for causing Ben’s broken ribs and instead found that
both he and the mother were Ben’s caregivers when the infant’s ribs were broken.
This argument is unpersuasive, as respondent-father focuses solely on his son’s
broken ribs and fails to perceive the import of his admissions that he “held the
juvenile tightly, squeezed the juvenile, and shook the juvenile on more than one
occasion” and “squeezed the juvenile with a force equivalent to that used to squeeze
vice grips.” (emphasis added). These admissions support the court’s conclusion that
respondent-father physically abused Ben by shaking him and by squeezing him with
the force used to operate a tool3 on multiple occasions, which is separate and apart
from any role that respondent-father played in causing or allowing to be caused the
child’s broken ribs. See, e.g., In re J.M., 384 N.C. at 586–87 (noting that a six-week-
3 The transcript reveals that a DSS social worker testified that when respondent-father admitted this
conduct to her, he described squeezing Ben out of frustration with his son’s crying and described the force used as hard enough to make the infant “cry harder.” She further distinguished between respondent-father giving Ben “a tight squeeze” as opposed to “a gentle hug.” The social worker also noted that the mother had disclosed that respondent-father had “a pattern” of being “rough” with the baby, and that this behavior was “frequent.”
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old juvenile was abused when the child had been squeezed and shaken); see also In
re V.S.O., 268 N.C. App. 324, 2019 WL 5718175, at *4 (2019) (unpublished) (noting
that the slapping and shaking of an infant could support a determination of physical
abuse under N.C.G.S. § 7B-901(c)(1)(b)).
We likewise find no merit in respondent-father’s contention that the factual
findings here do not support the conclusion that Ben suffered “chronic” physical abuse
because the child’s injuries were inflicted over the course of only two months and
consisted of only two injuries—noting the broken ribs. Although respondent-father
cites In re V.S.O. for the proposition that “[t]he term chronic, although not defined in
section 7B, is commonly defined as ‘lasting a long time or recurring often,’ ” we find
that case unhelpful here because that Court upheld the district court’s determination
that a four-month-old juvenile had suffered chronic physical abuse where evidence
indicated that the abuse “persisted over [the juvenile’s] entire life.” In re V.S.O., 268
N.C. App. 324, 2019 WL 5718175, at *4 (citation omitted).
We hold that the findings here—that respondent-father admitted shaking Ben
and squeezing his son with the force used on vice grips on more than one occasion
over the juvenile’s two months of life and that the child also suffered a rib fracture on
two distinct occasions—support the court’s conclusion that respondent-father
“committed or encouraged . . . and/or allowed the . . . chronic physical abuse of the
juvenile.”
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As for respondent-father’s emphasis that DSS did not ask the district court to
find that reunification efforts with him were not required, we observe that the court
was under no obligation to adopt DSS’s position in this regard. See, e.g., In re
Rholetter, 162 N.C. App. 653, 664 (2004) (“North Carolina caselaw is replete with
situations where the trial court declines to follow a DSS recommendation.” (citation
omitted)). “[D]ispositional choices—including the decision to eliminate reunification
from the permanent plan—are” instead left to the discretion of the district court. In
re J.M., 384 N.C. at 591.
In sum, the district court’s conclusion of law that reunification efforts with
respondent-father were not required was supported by sufficient written findings,
and respondent-father’s contention to the contrary is overruled.
C. Failure to address visitation rights for respondent-father
Respondent-father next argues that the district court erred in failing to
address his visitation rights in its order.4 We agree.
Our Juvenile Code mandates that an order which “continues the juvenile’s
placement outside the home shall provide for visitation that is in the best interests of
the juvenile consistent with the juvenile’s health and safety, including no visitation.”
N.C.G.S. § 7B-905.1(a) (2023). Accordingly, such an “order must establish a visitation
plan for parents unless the [district] court finds that the parent has forfeited their right
4 In light of our resolution of this argument, we need not reach respondent-father’s alternative position:
that a complete denial of visitation was not supported by the court’s pertinent findings of fact.
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to visitation or that it is in the child’s best interest to deny visitation.” In re N.L.M.,
283 N.C. App. 356, 374 (2022) (emphasis added) (citation and internal quotation
marks omitted).
Here, the district “court made no finding that [respondent-father] had forfeited
[his] right to visitation or that it was in the best interests of [Ben] to deny visitation”
and thus the court “was required to provide a plan containing a minimum outline of
visitation, such as the time, place, and conditions under which visitation may be
exercised.” See In re T.H., 232 N.C. App. 16, 34 (2014).5 Indeed, the order includes
no findings of fact or conclusions of law regarding visitation with respondent-father.
Therefore “we remand for entry of an order of visitation which clearly defines and
establishes the time, place, and conditions under which respondent-father may
exercise his visitation rights.” Id. at 35 (cleaned up).
D. Prohibition on respondent-father having contact with the mother
Respondent-father next argues that the district court exceeded its authority
under N.C.G.S. § 7B-904 when it ordered that he “have no contact whatsoever with”
the mother, characterizing this language as a civil “no contact order” under Chapter
50 of the North Carolina General Statutes.6 Yet respondent-father concedes that
5 On appeal, the GAL does not identify any portion of the order that would satisfy the statutory mandate as discussed in In re T.H., and instead, focuses on whether the existing findings of fact and evidence could support a hypothetical finding that respondent-father had either forfeited his right to visitation with Ben or that visitation would not be in Ben’s best interests. 6 Respondent-father cites N.C.G.S. § 50C-5(a) (2023).
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“[p]erhaps that power [to bar him from contact with the mother] falls under the
umbrella of N.C.G.S. § 7B-904(d1)(3), which allows the [district] court to order
parents to ‘take appropriate steps to remedy conditions in the home that led to or
contributed to the juvenile’s adjudication.’ ” We agree with respondent-father’s latter
interpretation.
The provision identified by respondent-father permits a district court to order
the parent of a juvenile who has been adjudicated to be abused, neglected, or
dependent to “[t]ake appropriate steps to remedy conditions in the home that led to
or contributed to the juvenile’s adjudication or to the court’s decision to remove
custody of the juvenile from the parent, guardian, custodian, or caretaker.” N.C.G.S.
§ 7B-904(d1)(3) (2023). Thus, a “judge in an abuse, neglect, or dependency proceeding
has the authority to order a parent to take any step reasonably required to alleviate
any condition that directly or indirectly contributed to causing the juvenile’s removal
from the parental home,” In re B.O.A., 372 N.C. 372, 381 (2019) (emphasis added), as
long as there is “a nexus between the step ordered by the court and a condition that
is found or alleged to have led to or contributed to the adjudication.” In re T.N.G.,
244 N.C. App. 398, 408 (2015) (citation omitted).
The court here made several findings of fact regarding domestic violence
between respondent-father and the mother, including that it was a basis of the initial
report DSS received about the family, that the parents “have engaged in acts of
domestic violence” and “[t]hat a Military Protective Order was entered, which, in
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part, barred the [respondent-father] from having contact with the . . . mother and
juvenile.” In addition, the social worker testified about the mother’s disclosures that
when respondent-father was being “rough with the baby” and the mother tried to
intervene, respondent-father “would not let her” retrieve the baby. In light of the
evidence that respondent-father engaged in domestic violence with the mother and
had a pattern of being too rough with Ben, including becoming so frustrated by his
infant son’s crying that he tightly squeezed and shook the juvenile and refused to
allow the mother to take the child from him at those times, we hold that the district
court’s directive that respondent-father have no contact with the mother was well
within its authority under N.C.G.S. § 7B-904(d1)(3) and was not an abuse of
discretion.
E. Order that reunification efforts with respondent-father are “ceased”
In his final argument, respondent-father contends that the district court
abused its discretion by acting under a misapprehension of the law when it ordered
in the decretal portion of the order that reunification efforts with him “are hereby
ceased.” “[T]he extent to which [a] trial court exercised its discretion on the basis of
an incorrect understanding of the applicable law raises an issue of law subject to de
novo review on appeal.” In re A.F., 231 N.C. App. 348, 352 (2013) (citation and italics
omitted).
As respondent-father contends, and the GAL concedes, while the Juvenile Code
permits a district court to determine that reasonable efforts at reunification “shall
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not be required,” N.C.G.S. § 7B-901(c), it does not authorize a court to order DSS to
cease reunification efforts with a respondent. See In re C.B., 254 N.C. App. 344,
(2017) (unpublished) (noting that the phrase “or shall cease” was removed from the
statute in 2015 and citing An Act to Make Various Changes to the Juvenile Laws
Pertaining to Abuse, Neglect, and Dependency, S.L. 2015-136, sec. 7, 9, 2015 N.C.
Sess. Laws 320, 324-26 (codified as amended at N.C.G.S. § 7B-901(c) (2015)). We
observe that the court here employed the correct phraseology from the amended
statute in a both a finding of fact and an identically worded conclusion of law in its
disposition section: “[t]hat reasonable efforts for reunification . . . are not required
with [r]espondent[-]father because [he] . . . committed or encouraged . . . and/or
allowed the . . . chronic physical abuse of the juvenile.” (emphasis added).
In light of its repeated use of the proper statutory language, we do not believe
the court’s use of the words “are hereby ceased” in the decretal portion of the order
indicates “an incorrect understanding of the applicable law,” to wit: the scope of
district court’s authority under section 7B-901(c). See In re A.F., 231 N.C. App. at
352. Rather, we perceive it to be merely an instance of imprecise language on the
part of the court.7 Accordingly, on remand the district court should clarify the
7 Moreover, even if we held that that the district court did misunderstand and attempt to exceed its
statutory authority, respondent-father makes no argument regarding prejudice. See In re C.B., 254 N.C. App. 344 (affirming a permanency planning order where the “court exceeded its statutory authority by ordering DSS to cease reunification efforts, [because the] respondent . . . failed to show prejudice”).
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wording of the third decree in the order so that it conforms to the pertinent statutory
language and the court’s own proper and supported conclusion of law as to efforts at
reunification with respondent-father. See Porter v. Porter, 252 N.C. App. 321, 330
(2017) (remanding for clarification of “a poorly worded decretal provision” in an
equitable distribution order).
III. Conclusion
In conclusion, this matter is remanded for (1) the entry of an order of visitation
for respondent-father and (2) clarification of the decretal portion of the adjudication
and disposition order.
AFFIRMED IN PART; REMANDED.
Judge CARPENTER concurs.
Judge TYSON concurs in part and dissents in part by separate opinion.
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TYSON, Judge, concurring in part and dissenting in part.
I concur, and we all agree the trial court erred and portions of the order must
be vacated, and for this cause be remanded for: (1) the entry of an order of visitation
for respondent-father; and, (2) compliance of the decretal portion of the adjudication
and disposition order with the statute.
The trial court was also without authority to unilaterally cease reunification
efforts, or to sua sponte order no contact between the married parents in the absence
of a Petition for a Domestic Violence Protection Order by mother. Those portions of
the orders must also be vacated and remanded. I respectfully dissent.
I. Factual Background
“Ben” was born on 21 November 2022 to mother and respondent-father, a
married couple. Respondent-father was 20 years old. The young couple and parents
lived in Jacksonville, while respondent father actively served our country in the
Marine Corps. The parents voluntarily took Ben to the Navy hospital for consecutive
days seeking treatment for him on 25 and 26 January 2023.
Ben’s paternal grandmother began residing with the mother and Ben in
January to assist with the child’s safety and care. DSS removed three-month-old Ben
from his parents, grandparent, and his home on 21 February 2023 and placed him
into foster care with strangers, without first seeking other statutorily-required
familial placement. See N.C. Gen. Stat. § 7B-903(a1) (2023) (“In placing a juvenile in
an out-of-home care under this section, the court shall first consider whether a IN RE: B.L.M-S.
TYSON, J., concurring in part and dissenting in part
relative of the juvenile is willing and able to provide proper care and supervision of
the juvenile in a safe home.”(emphasis supplied)).
In three additional orders entered between 28 February and 5 April 2023, and
in the absence of a supported conclusion of unfitness or conduct inconsistent with his
parental rights, and in disregard of constitutionally-protected marital and parental
rights, the district court ordered it was not in Ben’s best interest to visit with his
father, and sua sponte barred any contact between respondent-father and mother,
husband and wife, and while respondent-father’s mother was present in the family’s
home to help care for Ben.
On 4 May 2023, and nearly three months after removing the child from his
home and family, the court “allowed” respondent-father one hour of supervised
visitation per week with his seven months old son.
Respondent-father had admitted to a DSS social worker, he had squeezed and
shaken his son out of frustration when Ben cried. Respondent-father also admitted
to a Jacksonville Police Department detective that he had once thrown Ben into the
air and had failed to catch the child. The detective asserted respondent-father had
squeezed Ben “with a force equivalent to that used to squeeze vice grips.”
Respondent-father’s charge of a single count of misdemeanor child abuse was
dismissed. Respondent-father’s military command had issued a Military Protective
Order (“MPO”), which barred respondent-father from having any contact with the
mother or Ben. On 13 February 2023, mother met with respondent-father’s
2 IN RE: B.L.M-S.
command personnel and asked them to rescind the MPO so she could see her
husband.
This meeting between mother and military command occurred a week prior to
Ben being forcibly removed from his parents and grandmother at three months old,
and being placed outside of his family into foster care on 21 February 2023. Mother
had informed DSS she planned to travel with Ben to other family outside of North
Carolina at the end of February. Mother was under no travel restrictions,
accusations, or charges at that time or now.
The overriding Constitutional and legislative purposes of the Juvenile Code is:
(1) to preserve and serve to maintain the family unit; (2) for DSS to offer needed
assistance, training, and services to the family; (3) to prevent the removal of a child
from his parent’s care, custody, and control; and, (4) to reunite the child at the earliest
possible times after the conditions leading to removal are ameliorated. See N.C. Gen.
Stat. § 7B-100, et. seq. (2023).
After the hearing on DSS’ petition on 6 June 2023, an adjudication and initial
disposition order was delayed and not entered until over a month later on
10 July 2023. The district court continued DSS’ statutory reunification efforts with
mother, eventually placed Ben with the mother’s parents, and afforded mother ten
hours of supervised visitation.
II. Reunification with Respondent-Father
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The district court’s conclusion that statutory reunification efforts with
respondent-father are not required is not supported by supported written findings.
We all agree the trial court erred in its conclusion that statutory reasonable efforts
to reunify respondent-father with Ben were not required and again ordered, sua
sponte, respondent-father to have no contact with mother and no visitation schedule
with Ben. The order is absolutely devoid of statutorily-mandated findings of fact or
conclusions of law regarding mandated visitation with respondent-father. N.C. Gen.
Stat. § 7B-901(c) (2023) (Statute does not authorize a court to order DSS to cease
reunification efforts with a respondent.)
III. No Contact with Mother
The district court ordered respondent-father to “have no contact whatsoever
with” mother. The majority’s opinion affirms this restriction based upon N.C. Gen.
Stat. § 7B-904(d1)(3), which authorizes a district court to order a parent to: “[t]ake
appropriate steps to remedy conditions in the home that led to or contributed to the
juvenile’s adjudication or to the court’s decision to remove custody of the juvenile from
the parent, guardian, custodian, or caretaker.” N.C. Gen. Stat. § 7B-904(d1)(3) (2023)
(emphasis supplied). This belt and suspenders approach grossly overstretches the
elastic waist of the statute. Id.
The majority’s opinion further cites our Supreme Court’s opinion in In re
B.O.A., 372 N.C. 372, 385, 831 S.E.2d 305, 314 (2019) to support its notion, however,
it omits the preceding sentences from the quotation it cited, which provides:
4 IN RE: B.L.M-S.
We do not, of course, wish to be understood as holding that a trial judge’s authority to adopt a case plan pursuant to N.C.G.S. § 7B-904(d1)(3) is unlimited or that the reference to the conditions of removal contained in N.C.G.S. § 7B- 1111(a)(2) has no meaning whatsoever. Instead, a trial judge should refrain from finding that a parent has failed to make reasonable progress . . . in correcting those conditions which led to the removal of the juvenile simply because of his or her failure to fully satisfy all elements of the case plan goals.
Id. (citations and internal quotation marks omitted)(emphasis supplied).
Our General Statutes provide mechanisms for parties to seek a domestic
violence protective order (“DVPO”) under N.C. Gen. Stat. § 50B-1(b)(6) (2023) or for
a no-contact order under N.C. Gen. Stat. § 50C (2023). The legislature did not intend
and the plain language of N.C. Gen. Stat. § 7B-904(d1)(3) does not allow
circumvention of these procedures for a de facto no contact order to be entered against
a married couple on the unpetitioned and sua sponte action by the trial court under
N.C. Gen. Stat. § 7B-904(d1)(3).
This reading is far too expansive of an interpretation of N.C. Gen. Stat. § 7B-
904(d1)(3) to protect respondent-father’s and mother’s fundamental marital and
parental rights, and to prevent communication and work together in a plan to reunify
with their child. I respectfully dissent.