IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-396
Filed 02 May 2023
Durham County, No. 20 JA 116
IN THE MATTER OF: K.C.
Appeal by respondent-father from orders entered 21 October 2021 and 8
February 2022 by Judge Doretta L. Walker in Durham County District Court. Heard
in the Court of Appeals 3 April 2023.
Robin K. Martinek, for Durham County Department of Social Services, petitioner-appellee.
Alston & Bird LLP, by Kelsey L. Kingsbery and Michelle C. Prendergast, for the Guardian ad Litem.
Richard Croutharmel, for the father, respondent-appellant.
WOOD, Judge.
Respondent-father appeals from the disposition order placing K.C. (“Katy”)1 in
the temporary custody of the paternal aunt and uncle following the trial court’s
adjudication of Katy as a neglected juvenile. For the reasons stated herein, we vacate
the disposition order and remand for further proceedings.
I. Background
1 A pseudonym agreed upon by the parties pursuant to N.C. R. App. P. 42(b). IN RE K.C.
Opinion of the Court
Katy was born in January 2020. On 25 August 2020, Durham County
Department of Social Services filed a petition alleging Katy to be a neglected juvenile.
The petition alleged Katy and her mother2 both tested positive for marijuana at
Katy’s birth, and that mother admitted to using cocaine during her pregnancy.
Mother had a history of mental health, substance abuse, and domestic violence issues,
as well as a history of housing instability. On 9 August 2020, mother was charged
with driving while impaired and reckless endangerment after she fled the scene of an
automobile accident. Following this incident, DSS and the parents established a
safety plan for Katy whereby Katy would be placed with respondent-father, the non-
offending parent, with whom she has had regular visits since birth. The only mention
of Respondent in the petition states that he is the father of Katy and had regular
visitation with her until she was placed with him pursuant to the safety plan. DSS
did not seek non-secured custody of Katy.
On 15 October 2021, more than a year after the filing of the juvenile petition,
the matter came on for adjudication. On 21 October 2021, the trial court entered an
order adjudicating Katy to be a neglected juvenile. The dispositional hearing was
held on 10 December 2021. This is the first time the court contemplated
removal of the child from the non-offending parent. On 13 January 2022, the
trial court entered a limited order placing Katy in the temporary custody of her
2 Katy’s mother is not a party to this appeal.
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paternal aunt and uncle. The trial court entered the formal disposition order on 8
February 2022, wherein it formally placed Katy in the “temporary custody” of her
paternal aunt and uncle and ordered Respondent to complete a parenting class with
a domestic violence component, complete a domestic violence program for
perpetrators, refrain from physically disciplining Katy, maintain contact with the
social worker, maintain stable housing, maintain employment and income, refrain
from using illegal substances, sign all necessary releases to allow the social worker
to access service records, and ensure that all service providers have copies of the trial
court’s orders. He was granted up to three hours of weekly, unsupervised visitation
with Katy. Respondent appeals.
II. Discussion
On appeal, Respondent argues the trial court erred in placing Katy in the
temporary custody of the paternal aunt and uncle where its determination that he
acted inconsistently with his constitutional rights as a parent was not supported by
the evidence or the findings of fact. Respondent’s argument has merit.
We begin by noting that Respondent properly preserved this issue for our
review.3 Respondent had notice that DSS was recommending temporary custody of
Katy be placed with the paternal aunt and uncle. At the dispositional hearing, he
3 On 28 June 2022, DSS filed a motion to dismiss respondent’s appeal on the ground that respondent had failed to preserve his sole argument on appeal for review. Petitioner’s motion to dismiss is denied.
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opposed DSS’s recommendation, testified that he had the ability to care for Katy, and
specifically requested the court to allow Katy to remain in his custody. See In re
B.R.W., 278 N.C. App. 382, 399, 863 S.E.2d 202, 216 (2021) (holding that the
respondent-mother’s challenge to the trial court’s determination that she acted
inconsistently with her protected status was preserved where she presented evidence
of her ability to care for the children, opposed the recommendation of guardianship,
and requested the trial court to reject the recommendation of guardianship), aff’d,
381 N.C. 61, 871 S.E.2d 764 (2022).
Here, the trial court determined that Respondent had “acted inconsistent[ly]
with [his] constitutional right [as a] parent.” Respondent initially contends that the
trial court erred in labeling this determination as a finding of fact when it is a
conclusion of law. We agree. Although the trial court characterized this
determination as a finding of fact, it is a conclusion of law; and we review it
accordingly. See In re J.S., 374 N.C. 811, 818, 845 S.E.2d 66, 73 (2020) (“We are
obliged to apply the appropriate standard of review to a finding of fact or conclusion
of law, regardless of the label which it is given by the trial court.”). “The trial court’s
legal conclusion that a parent acted inconsistently with his constitutionally protected
status as a parent is reviewed de novo to determine whether the findings of fact
cumulatively support the conclusion and whether the conclusion is supported by clear
and convincing evidence.” In re I.K., 377 N.C. 417, 421, 858 S.E.2d 607, 611 (2021).
The Due Process Clause of the Fourteenth Amendment to the United States
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Constitution protects “a natural parent’s paramount constitutional right to custody
and control of his or her children” and ensures 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). A parent’s constitutionally protected interest
in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on the presumption that he or she will act in the best interest of the child. Therefore, the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child.
Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). “[T]here is no bright
line beyond which a parent’s conduct” constitutes action inconsistent with their
protected status. Boseman v. Jarrell, 364 N.C. 537, 549, 704 S.E.2d 494, 503 (2010).
“Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with
the protected status parents may enjoy. Other types of conduct, which must be
viewed on a case-by-case basis, can also rise to this level so as to be inconsistent with
the protected status of natural parents.” Price, 346 N.C. at 79, 484 S.E.2d at 534-35.
“[E]vidence of a parent’s conduct should be viewed cumulatively.” Owenby v. Young,
357 N.C. 142, 147, 579 S.E.2d 264, 267 (2003).
Here, the trial court relied on the following findings of fact to support its
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conclusion that Respondent acted inconsistently with his constitutionally protected
right to parent Katy:
20. Starting in April 2021, [Katy] was staying with her [paternal aunt and uncle] on a consistent basis. In order to have a stable and consistent caregiver, [respondent] elected to have [Katy] stay with his sister . . . and her husband[.] She and her husband moved into a new apartment to ensure that [Katy] has a stable place to be at all times. [Respondent] is often in the home visiting his daughter and will spend the night there as well.
21. At the end of June 2021, [respondent] decided that he would provide the care and supervision to his daughter. He has been providing this care to [Katy] and allowing her to spend an occasional night with other family members.
22. In November 2021, [respondent] was arrested and charged with assault on a female. At the time, he was at home with a female who he said he was and was not in a relation[ship] with. According to [respondent], the altercation took place outside the home, while [Katy] and a three-year-old were in a back room alone and unsupervised. After that, the child was placed with [the paternal aunt and uncle]. Guilford County DSS conducted a kinship assessment of the [paternal aunt and uncle] and approved placement with them. They are in the process of getting [Katy] enrolled in daycare.
....
49. When [Katy] was placed in his home, [respondent] was employed full time with ABM Building Values, a commercial cleaning service, and resided in the home of the paternal grandmother in Guilford County. Both the paternal grandmother and [paternal aunt] assisted with childcare, provided clothing, and spent quality time with [Katy].
50. Around December 2020, [respondent] moved to his own place in Guilford County. At that time, he was still
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employed with ABM Building Values; however, he was not working due to lack of business related to COVID. [Respondent] received unemployment benefits. [Respondent] also reported that he was an entrepreneur with a business that showcased his urban clothing line, the Wise Mark Company. [Respondent] reports he has been running his own business for three years.
53. Since the filing of the petition in August 2020, [respondent] has lived in four different locations. He is currently living with his mother.
54. [Respondent] has a significant criminal history with convictions for drug-related crimes and assault on a female. Durham DSS was not aware of the criminal history until after [Katy] was already in the home and Alamance County DSS had approved the placement. Since the filing of the petition, [respondent] had to turn himself in to the Alamance County Jail for charges of communicating threats and larceny of a firearm. He was released later that day. [Respondent] also had pending charges for assault on a female with an ex-girlfriend as a victim. In November 2021, he was charged with assault on a female.
55. [Respondent] has a history of domestic violence.
56. The Court was disturbed by what she saw at [respondent’s] house during the video testimony. [Respondent] wore a wife beater to court and his home was filled with [what appeared to be] dirty laundry.
57. The Court did not find [respondent’s] description and downplay of the domestic violence incident credible.
58. [Respondent] reported that he would tote his daughter around in the car while delivering his product for his business. The Court finds that was inappropriate.
59. The Court is concerned that [respondent] continues to involve himself with women that results in domestic
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violence.
Respondent challenges the portion of dispositional finding of fact 49 which
provides that “[b]oth the paternal grandmother and [paternal aunt] assisted with
childcare, provided clothing, and spent quality time with [Katy]” while Katy was
placed in his care. The paternal aunt testified at the dispositional hearing that over
the past year, while Katy was in Respondent’s care, Katy would stay overnight in her
home at least three days a week. Respondent would leave Katy with the paternal
aunt “when he had things to do.” An addendum to the August 2020 DSS court report,
dated 13 October 2021, which was admitted into evidence at the dispositional hearing
without objection, demonstrates that the paternal grandmother and paternal aunt
“help[ed] with caring” for Katy. Katy was “often” with her paternal aunt due to
Respondent’s work schedule, and the paternal aunt reported to a DSS social worker
that she had purchased clothes and food items while Katy was in her care. Providing
babysitting services would qualify as assisting with childcare and spending quality
time with the child. Thus, clear and convincing evidence supports finding of fact 49.
Respondent challenges the portion of dispositional finding of fact 54 pertaining
to his criminal history and DSS’s awareness of his criminal history as not being
supported by the evidence. However, the August 2020 DSS court report, which was
admitted into evidence at the dispositional hearing without objection, stated
Respondent’s criminal history of convictions for driving while license revoked, assault
on a female, possession of marijuana, and possession of a firearm. An addendum to
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the court report provides that DSS was not made aware of Respondent’s criminal
history until Katy was already in respondent’s home and Respondent had a pending
charge of assault on a female. Thus, Respondent’s challenge to this finding fails.
Although DSS became aware of Respondent’s criminal history before its 15 October
2020 addendum to its report to the court, DSS did not seek nonsecure custody of Katy
at any of the pretrial hearings or at the adjudication hearing on 15 October 2021.
Throughout the approximately fifteen months Katy was in the custody of
Respondent, from the safety plan immediately preceding filing of the petition to the
disposition hearing, the DSS court report and each addendum thereafter set forth the
circumstances of the Respondent and Katy. DSS consistently reported Katy was
doing well in the custody of the Respondent, that he was meeting all her needs, was
utilizing family support when needed, and “is providing a safe home that [has]
adequate supplies and space for his daughter.” DSS consistently reported that Katy
and Respondent have a “strong bond,” and she is affectionate toward him and happy
to see him. Each report, until the 13 October 2021 addendum, recommended Katy be
placed in the custody of Respondent at disposition. That report recommended that
Katy be placed in the temporary custody of the paternal aunt and uncle while
simultaneously reporting that Respondent “is providing a safe home that [has]
adequate supplies and space for his daughter.” There was no allegation that
Respondent was unable to meet Katy’s needs or that she was at risk of any injury
while in Respondent’s care. See In re Evans, 81 N.C. App. 449, 452-54, 344 S.E.2d
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325, 327 (1986) (The task at the initial “removal stage is to determine whether the
child is exposed to a substantial risk of physical injury because the parent is unable
to provide adequate protection.”).
Next, Respondent argues that findings of fact 50, 53, 56, 57, and 58 constitute
socioeconomic factors irrelevant to an analysis of whether a parent has acted
inconsistently with their constitutionally protected status. It is well established that
a parent’s “socioeconomic status is irrelevant to a fitness determination.” Raynor v.
Odom, 124 N.C. App. 724, 731, 478 S.E.2d 655, 659 (1996) (citing Jolly v. Queen, 264
N.C. 711, 713-14, 142 S.E.2d 592, 595 (1965)).
Socioeconomic factors that this Court has held do not show a parent’s unfitness or acts inconsistent with constitutionally-protected status include the propriety of the parent’s place of residence, that the parents move frequently, that their house at times lacked heat or was not cleaned regularly, their choice in spouse or babysitter, that the parent did not have relatives nearby to assist in caring for the child, a history of being unable to maintain stable employment, and loss of a job. While socioeconomic factors such as the quality of a parent’s residence, job history, or other aspects of their financial situation would be relevant to the determination of whose custody is in the best interest of the child, those factors have no bearing on the question of fitness.
Dunn v. Covington, 272 N.C. App. 252, 265, 846 S.E.2d 557, 567 (2020) (emphasis
added).
We reject respondent’s contention that findings of fact 57 and 58 constitute
findings regarding socioeconomic factors. They address Respondent’s “description
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and downplay” of the domestic violence incident that occurred in November 2021 and
how Respondent would “tote” Katy around in his vehicle while working. In findings
of fact 50, 53, and 56, however, the trial court found that Respondent was not working
and receiving unemployment benefits around December 2020, had moved to four
different locations since the filing of the juvenile petition in August 2020, was
currently living with his mother, and had a messy home. These findings regard
socioeconomic factors that potentially could reflect on the child’s best interest but
have no bearing on the issue of whether Respondent’s conduct was inconsistent with
his constitutional rights as a parent. The trial court inappropriately considered these
factors, and we do not consider them here.
The trial court’s remaining findings of fact demonstrate that Katy was placed
in Respondent’s custody in August 2020 and for approximately three months in 2021,
Respondent elected to have Katy stay with the paternal aunt and uncle. He visited
her regularly during this time, and at the conclusion of the three months, Respondent
resumed the care and supervision of Katy. This short period of time Katy was with
the paternal aunt and uncle was temporary and does not undermine respondent’s
constitutionally protected status. See Price, 346 N.C. at 83, 484 S.E.2d at 537 (stating
that if a parent allows a party to have “custody of the child only for a temporary period
of time” and then seeks custody at the conclusion of that period, the parent “would
still enjoy a constitutionally protected status absent other conduct inconsistent with
that status”). The other findings establish the following: (1) Respondent received
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assistance from the paternal grandmother and aunt in caring for Katy; (2)
Respondent had prior convictions for drug-related crimes, assault on a female, and a
pending charge of assault on a female; (3) Respondent’s pending charge arose from
an incident that occurred in November 2021 wherein he is alleged to have assaulted
a female outside his home while Katy was inside and unsupervised; and (4) Katy
accompanied Respondent when he delivered merchandise for his business. The trial
court did not make any findings about the effects that these findings might have on
Katy or specific risks that might result, nor did the court find that the condition of
the Respondent’s home contributed to any particular risk of endangerment or injury
to Katy.
Viewing Respondent’s conduct cumulatively, we are unable to say that
receiving support from family members in caring for Katy, having Katy accompany
Respondent while he worked and conducted business, having prior criminal
convictions (the dates, number, and effects of which are unknown), and the existence
of an unproven domestic violence charge warrant forfeiture of Respondent’s
constitutionally protected status. Based on the record evidence, the trial court’s
findings of fact do not show that Respondent “fail[ed] to shoulder the responsibilities
that are attendant to rearing a child.” Price, 346 N.C. at 79, 484 S.E.2d at 534. There
were no allegations in the petition or findings in the adjudication order that
Respondent, the non-offending parent, has neglected the child, is unfit, or has acted
inconsistently with his paramount constitutional right to custody of his child.
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Therefore, his constitutionally protected rights remain intact at this juncture. To be
clear, the disposition hearing is the first time the trial court contemplated removal of
the child from the non-offending parent. The child was not in DSS custody, nor had
she ever been placed in non-secured custody.
III. Conclusion
Accordingly, we are constrained to hold that the trial court’s findings of fact
are insufficient to support the trial court’s conclusion that Respondent acted
inconsistently with his paramount constitutionally protected status as a parent. The
portion of the disposition order entered 8 February 2022 that removed Katy from the
Respondent’s custody and granted temporary custody of Katy to the paternal aunt
and uncle is vacated, and the case is remanded to the trial court for further
proceedings and entry of a new dispositional order. Because the disposition hearing
occurred more than a year ago, the trial court may conduct a new disposition hearing
for Katy.
VACATED AND REMANDED.
Judge COLLINS concurs.
Judge CARPENTER dissents by separate opinion.
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CARPENTER, Judge, dissenting.
In my view, the trial court’s finding of fact 61, stating that Respondent-Father
acted inconsistent with his constitutional rights as a parent, was premature and
unnecessary to the trial court’s dispositional decision awarding temporary custody to
relatives. I agree with the majority to the extent that finding of fact 61 is actually a
conclusion of law, reviewable de novo on appeal. Nonetheless, this conclusion is only
necessary and proper when making a permanent custody determination. See In re
D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (explaining the trial court
could not award permanent custody without a finding that the respondent was unfit
or had acted inconsistent with his constitutional rights as a parent). The proper
standard of review for a trial court’s disposition order is abuse of discretion; therefore,
I believe the majority erroneously reviewed an improper and superfluous conclusion
of law de novo. Because the trial court did not abuse its discretion in awarding
temporary custody to relatives in its disposition order, I respectfully dissent.
IV. Standard of Review
It is well settled that North Carolina Appellate Courts review a trial court’s
dispositional choices—including temporary placement with a relative—for abuse of
discretion. In re A.P.W., 378 N.C. 405, 410, 861 S.E.2d 819, 826 (2021). “An abuse of
discretion results where the trial 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 re
T.L.H., 368 N.C. 101, 107, 772 S.E.2d 451, 455 (2015) (citation and quotation mark IN RE K.C.
CARPENTER, J., dissenting
omitted).
“The district court has broad discretion to fashion a disposition from the
prescribed alternatives in N.C. Gen. Stat. § 7B-903(a), based upon the best interests
of the child.” In re B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008) (citations
omitted); see also N.C. Gen. Stat. § 7B-903(a)(4) (2021) (providing the trial court may
“[p]lace the juvenile in the custody of a parent, relative, private agency offering
placement services, or some other suitable person” as a dispositional alternative).
V. Analysis
On appeal, Respondent-Father argues that because insufficient evidence
supports the trial court’s conclusion that he acted inconsistent with his constitutional
rights as a parent, the trial court erred in placing Katy in the temporary custody of
her paternal relatives. Our Court has previously rejected this constitutional
argument, albeit in unpublished decisions, where the trial court’s custody
determination at the dispositional stage was temporary. See In re B.S., 225 N.C. App.
654, 738 S.E.2d 453 (2013), 2013 N.C. App. LEXIS 156, at *4 (N.C. Ct. App. Feb. 19,
2013) (unpublished) (holding the trial court’s “finding of fact at disposition that
respondent was unfit and had acted inconsistently with his constitutionally protected
parental rights was both unnecessary and improper at [the dispositional] stage of the
proceedings”) (emphasis added); In re E.B., 241 N.C. App. 656, 775 S.E.2d 693 (2015),
2015 N.C. App. LEXIS 481, at *7 (N.C. Ct. App. June 16, 2015) (unpublished)
(explaining the trial court was not required to make a finding that the respondent
2 IN RE K.C.
was an unfit parent or had acted inconsistently with his constitutionally protected
parental rights because the trial court awarded only temporary custody at the
dispositional stage); see also In re J.W.M., 283 N.C. App. 470, 2022-NCCOA-354, ¶
17–19 (unpublished) (rejecting the respondent-father’s argument that the trial court
should have engaged in an analysis of his constitutionally protected parental rights
at the dispositional stage where it awarded temporary custody of the juvenile to the
department of social services). Respondent-Father challenges several findings of fact
but does not contend the trial court abused its discretion.
Here, the trial court made findings of fact regarding: Katy’s need for stability
and more adequate care and supervision in her placement; Respondent-Father’s
criminal and domestic violence history—including one domestic violence incident
that occurred while Katy was home unsupervised; the trial court’s concern for
Respondent-Father’s continued domestic violence; and Respondent-Father’s four
home changes since the petition was filed. The trial court also considered Katy’s
placement options, including being returned to Respondent-Father’s home. Based on
its findings of fact, the trial court concluded it was in Katy’s best interest to be placed
in the temporary custody of relatives. I disagree with the majority that the trial court
was required to make specific findings at this stage of the proceedings regarding a
risk of substantial injury posed by Respondent-Father’s home environment. In the
21 October 2021 adjudication order, the trial court adjudicated Katy to be neglected,
and Respondent-Father did not appeal from this order.
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In light of the trial court’s findings, I cannot conclude the trial court abused its
discretion in its award of temporary custody to Katy’s relatives at this stage of the
juvenile proceeding. See In re A.P.W., 378 N.C. at 410, 861 S.E.2d at 826.
Accordingly, I would affirm the disposition order.
VI. Conclusion
The trial court’s disposition order, including its award of temporary custody,
was not “manifestly unsupported by reason or is so arbitrary that it could not have
been the result of a reasoned decision.” See In re T.L.H., 368 N.C. at 107, 772 S.E.2d
at 455. Therefore, I would affirm the disposition order.