In re C.P.

801 S.E.2d 647, 252 N.C. App. 118, 2017 WL 899989, 2017 N.C. App. LEXIS 550
CourtCourt of Appeals of North Carolina
DecidedMarch 7, 2017
DocketNo. COA16-808
StatusPublished
Cited by4 cases

This text of 801 S.E.2d 647 (In re C.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C.P., 801 S.E.2d 647, 252 N.C. App. 118, 2017 WL 899989, 2017 N.C. App. LEXIS 550 (N.C. Ct. App. 2017).

Opinion

CALABRIA, Judge.

*119Respondent appeals from the trial court's order awarding guardianship of her minor child, "James,"1 to his paternal grandfather, Harold Outing ("Mr. Outing").2 After careful review, we affirm.

I. Background

On 13 March 2013, Mecklenburg County Department of Social Services, Division of Youth and Family Services ("YFS") received a referral alleging that a domestic violence incident had occurred between respondent and her boyfriend, the father of two of respondent's other minor children. The incident caused respondent's C-section stitches to break, and the boyfriend was charged with assault on a female. The charge was later dismissed, but YFS entered into safety plans with both respondent and her boyfriend.

Respondent and her children initially stayed with respondent's mother following the incident, but two weeks later, they moved in with the boyfriend, his mother, and his seventeen-year-old sister. On 17 June 2013, YFS received a referral alleging that James's three-month-old half-sister, "Charlene," had been sexually abused. Charlene was hospitalized for three days.

YFS and respondent entered into another safety plan, which required that she and her children return to their maternal grandmother's home. The maternal grandmother was to provide constant "eye/sight"

*120supervision of the children, and she and respondent agreed that they would not engage in violence in front of the children. However, on 15 July 2013, YFS received reports alleging that respondent and her mother had engaged in multiple acts of domestic violence in the children's presence. Respondent was charged with damage to property and violation of a domestic violence protective order as a result of the incidents. The maternal grandmother told YFS that she was "overwhelmed" and could only provide care for the children through 16 July 2013.

On 17 July 2013, YFS filed a petition alleging that James and his half-siblings were abused, neglected, and dependent juveniles. YFS obtained nonsecure custody of the children and placed them in a foster home. An adjudication hearing was conducted on 18 September 2013, and respondent stipulated to a number of facts. Based on those stipulations, the trial court adjudicated the children as neglected and dependent.

Prior to the dispositional phase of the hearing, Mr. Outing, represented by counsel, moved to intervene in the case. Mr. Outing stated that James had lived with him "on and off" since birth and "exclusively ... from approximately June 2011 until June 17, 2013." According to Mr. Outing, he had served as James's primary caretaker for two years, during which he provided James with a bedroom, food, clothing, shoes, and other necessities; took him to and from preschool each day; tucked him into bed each night; and cared for him when he was sick. Mr. Outing explained that when he left town to travel for work in June 2013, he left James in respondent's care. However, when he returned home approximately one month later, he was informed that James and his half-siblings were in YFS custody.

*650The trial court granted Mr. Outing's motion to intervene and proceeded to disposition. The children were ordered to remain in YFS custody, and respondent was awarded supervised visitation. The court ordered YFS to conduct a home study of Mr. Outing's residence and to explore and develop a case plan with him. The court awarded Mr. Outing weekly supervised visitation with James and gave YFS "discretion to expand visitations."

Respondent returned to her mother's residence, and she and her boyfriend continued to have issues with domestic violence. Respondent made inconsistent progress with her case plan, making incomplete attempts at substance abuse treatment and sporadically testing positive for various drugs; spending time in jail on a variety of criminal charges; complying inconsistently with court-approved visitation and safety plans; and cycling through multiple jobs and living arrangements. James *121continued to have visitation with Mr. Outing during this timeframe, except for a few periods when visitation was briefly suspended. With the trial court's permission, on 15 June 2015, YFS officially placed James in Mr. Outing's residence full-time.

On 19 April 2016, the trial court entered an order requiring respondent, Mr. Outing, and YFS to schedule a meeting to discuss guardianship of James. Respondent failed to attend that meeting due to a work conflict. Following the next permanency planning hearing, on 9 May 2016, the court entered an order concluding, inter alia , that guardianship was in James's best interest and awarding guardianship to Mr. Outing.3 Respondent appeals.4

II. Analysis

A. Respondent's Constitutional Rights

Respondent first argues that the trial court violated her constitutional rights by concluding that guardianship was in James's best interest without making findings that respondent was unfit or acted in a manner inconsistent with her constitutionally protected status. We disagree.

Respondent is correct that the Due Process Clause protects a "parent's paramount constitutional right to custody and control of his or her children[,]" and that "the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody, or where the parent's conduct is inconsistent with his or her constitutionally protected status[.]" Adams v. Tessener , 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001) (citations omitted). "While this analysis is often applied in civil custody cases under Chapter 50 of the North Carolina General Statutes, it also applies to custody awards arising out of juvenile petitions filed under Chapter 7B." In re D.M. , 211 N.C.App. 382, 385, 712 S.E.2d 355, 357 (2011) (citation omitted). Thus, in order "to apply the best interest of the child test in a custody dispute between a parent and a nonparent, a trial court must find that the natural parent is unfit or that his or her conduct is inconsistent with a parent's *122constitutionally protected status." In re B.G. , 197 N.C.App. 570, 574, 677 S.E.2d 549

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Cite This Page — Counsel Stack

Bluebook (online)
801 S.E.2d 647, 252 N.C. App. 118, 2017 WL 899989, 2017 N.C. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cp-ncctapp-2017.