In re: N.Z.B.

• Court: Court of Appeals of North Carolina
• Decided: July 20, 2021
• Docket: 21-4
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-345

No. COA21-4

Filed 20 July 2021

Currituck County, No. 19 JA 34

IN THE MATTER OF N.Z.B.

Appeal by Respondent-Mother from order entered 16 October 2020 by Judge

Eula E. Reid in Currituck County District Court. Heard in the Court of Appeals 12

May 2021.

The Twiford Law Firm, PC, by Courtney S. Hull, for Currituck County Department of Social Services.

Matthew D. Wunsche, for the Guardian ad Litem.

Annick I. Lenoir-Peek, for Respondent-Mother.

No brief filed on behalf of Respondent-Father.

WOOD, Judge.

¶1 Respondent-Mother appeals a permanency planning order granting

guardianship of the minor child to his paternal grandmother. On appeal,

Respondent-Mother contends the trial court erred in finding she forfeited her

constitutionally protected parental status. Respondent-Mother further contends the

trial court lacked subject matter jurisdiction under the Uniform Child Custody IN THE MATTER OF N.Z.B.

Opinion of the Court

Jurisdiction Enforcement Act (“UCCJEA”). After careful review, we deny Currituck

County Department of Social Services’ (“Currituck County DSS”) motion to

supplement the record on appeal; deny Respondent-Mother’s motion to strike

Currituck County DSS’s appellee brief and proposed supplement to the record on

appeal; vacate the order of the trial court; and remand for further proceedings.

I. Factual and Procedural Background

¶2 Respondent-Mother has four children. O.D. was born on June 13, 2001; C.B.

was born on January 4, 2003; Noah1 was born on May 12, 2005; and A.B., whose

birthdate is not included in the record on appeal. 2

¶3 In 2002, the Pasquotank County, North Carolina, Department of Social

Services (“Pasquotank County DSS”) conducted a child protective services

investigation, “which yielded a substantiation of neglect, improper care, and injurious

environment in regard to [Respondent-Mother’s] oldest child, [O.D.]” Thereafter,

O.D. resided with her maternal grandparents. In 2004, the Dare County, North

Carolina, Department of Social Services (“Dare County DSS”) accepted a report

alleging Respondent-Mother neglected C.B. The report alleged Respondent-Mother

left C.B. “in the care of a man who had been beaten with a metal pipe, [C.B.] witnessed

1 See N.C. R. App. P. 42(b) (pseudonyms are used to protect the identity of the juveniles). 2 O.D., C.B., and A.B. are not subject to this appeal. O.D. and C.B. have reached the

age of majority, and A.B. remains in Respondent-Mother’s care. IN THE MATTER OF N.Z.B.

the assault, was covered in the blood of this man, and left alone without a caregiver.”

Subsequently, custody of O.D. and C.B. was awarded to their maternal grandparents

on November 12, 2004.

¶4 On May 12, 2005, Respondent-Mother gave birth to Noah. In October 2005,

Currituck County DSS “substantiated medical neglect regarding [Noah] for missing

five medical appointments. The case was transferred to the Pasquotank County

Department of Social Services and closed on February 9, 2006.”

¶5 On July 19, 2006, Dare County DSS filed a petition to terminate Respondent-

Mother’s rights with respect to O.D. and C.B. On November 29, 2006, Currituck

County DSS “substantiated a finding of neglect regarding [Noah]. [Respondent-

Mother] was holding [Noah], who was an infant at the time, during a physical

altercation with another individual.” On September 21, 2006, the Dare County

District Court terminated Respondent-Mother’s parental rights with respect to O.D.

and C.B.

¶6 While the juvenile proceeding concerning O.D. and C.B. was ongoing,

Respondent-Mother moved several times. Respondent-Mother moved from Dare

County to Currituck County, before relocating to James City County, Virginia. On

May 4, 2007, the James City County Division of Social Services (“James City County

DSS”) filed an “[e]mergency [r]emoval [o]rder after a CPS report was received from

Avalon shelter staff alleging that [Respondent-Mother] had left [Noah] unsupervised IN THE MATTER OF N.Z.B.

on a number of occasions.” Thereafter, James City County DSS was granted custody

of Noah. Ultimately, Mr. and Mrs. Z, relatives of Respondent-Mother, were granted

custody of Noah in November 2008. Noah resided with Mr. and Mrs. Z in Point

Harbor, North Carolina. Respondent-Mother continued to reside in Williamsburg,

Virginia. In October 2019, Mrs. Z died. On October 19, 2019, Respondent-Mother

petitioned the James City County Juvenile and Domestic Relations District Court

(the “James City Court”) for custody of Noah.

¶7 In December 2019, approximately two months after Mrs. Z’s death, Mr. Z

contacted Currituck County DSS. Mr. Z disclosed he could no longer provide for Noah

due to Noah’s behavior after Mrs. Z’s death and Noah’s contact with Respondent-

Mother. Mr. Z expressed his concern for Noah’s well-being and whether Respondent-

Mother would be able to provide adequate care for him.

¶8 Currituck County DSS filed a juvenile petition alleging Noah was a dependent

juvenile on December 20, 2019. That same day, Noah was placed with his paternal

grandmother (“Mrs. S”). On December 30, 2019, a non-secure custody hearing was

held. Respondent-Mother was present and requested custody of Noah.

¶9 The Currituck County District Court (the “Currituck Court”) reviewed the file

and exercised temporary emergency jurisdiction. The trial court continued custody

with DSS, allowed Noah to remain with Mrs. S, and granted Respondent-Mother

supervised visitation of two-hours per week. Currituck County DSS filed a “Motion IN THE MATTER OF N.Z.B.

to Determine Subject Matter Jurisdiction” on January 3, 2020. The Currituck Court

entered an “Order on Jurisdiction” on January 7, 2020, finding Virginia had

relinquished jurisdiction under the UCCJEA. 3

¶ 10 On March 6, 2020, the adjudication and disposition hearing occurred. On

March 16, 2020, the James City Court dismissed Respondent-Mother’s petitions for

custody because the petitions were “improperly filed. The proper filing would have

been a [motion to amend].” The Currituck Court entered an order adjudicating Noah

dependent on June 3, 2020.

¶ 11 In the adjudication and disposition order, the trial court made several findings

about Respondent-Mother’s history with North Carolina’s child protective services

and Virginia’s child protective services. At disposition, Respondent-Mother was

ordered to complete her “Out of Home Services Plan,” which included completion of

an online parenting course; cooperation with James City County DSS on the

Interstate Compact on the Placement of Children (“ICPC”) home study request;

visitation; investigation of in-person parent resources; and payment of child support.

¶ 12 In March 2020, shortly after the adjudication and disposition hearing, COVID-

19 restrictions were implemented. An in-person parenting class was cancelled, and

Respondent-Mother’s in-person visitations were suspended. Respondent-Mother

3 Both North Carolina and Virginia have adopted the UCCJEA. See N.C. Gen. Stat. §

50A-101 et seq. and Va. Code Ann. § 20-146.1 et seq. IN THE MATTER OF N.Z.B.

began her ICPC home study, but James City County DSS could not approve

Respondent-Mother’s home as a placement for Noah because she had not completed

the necessary paperwork for a home study.

¶ 13 On August 11, 2020, a tree fell on Respondent-Mother’s residence during a

storm related to Hurricane Isaias, injuring Respondent-Mother’s fiancé. Respondent-

Mother’s home was destroyed and later condemned. Respondent-Mother, her fiancé,

and Respondent-Mother’s youngest child, A.B., moved into temporary housing paid

for by the American Red Cross. The James City County Housing Authority was

aiding Respondent-Mother in finding alternative housing.

¶ 14 On August 18, 2020, Respondent-Mother attempted to complete the

outstanding paperwork for James City County DSS to perform a home study.

Respondent-Mother and her fiancé “were asked to bring their driver’s license, social

security card, birth certificate[,] and rabies vaccination for their pets. They only

provided their driver’s license and reported that they were not able to bring copies of

the other documents[.]” Due to the outstanding paperwork and Respondent-Mother’s

housing situation, James City County DSS was unable to complete the ICPC home

study.

¶ 15 A permanency planning hearing occurred on September 4, 2020. The

Currituck Court found

91. The Court finds that [Respondent-Mother] has acted IN THE MATTER OF N.Z.B.

inconsistently with her constitutionally protected right to parent [Noah] in that: the child was previously adjudicated in Virginia to be a neglected child due to her actions; she failed to make sufficient progress in her case plan; and on this date, the Court found, pursuant to North Carolina General Statute §7B-906.1(d)(3), that efforts for reunification with [Respondent-Mother] would clearly be futile or would be inconsistent with the child’s health and safety, and need for a safe, permanent home within a reasonable period of time [] and that efforts for reunification as defined in North Carolina General Statute §7B-101 shall no longer be required.

The trial court concluded Respondent-Mother was “not a fit or proper person for the

care, custody and control of [Noah],” and had “acted in ways that [were] inconsistent

with her constitutionally protected status as a parent.” The court awarded

guardianship to Noah’s paternal grandmother, Mrs. S. Respondent-Mother filed her

notice of appeal on October 16, 2020.4

II. Discussion

¶ 16 Respondent-Mother contends the trial court erred in finding she acted

inconsistently with her constitutionally protected parental status because the finding

was not supported by clear, cogent, and convincing evidence. Respondent-Mother

further argues the trial court erred in finding she had acted inconsistently with her

constitutionally protected status because there was evidence to the contrary “and []

4 Currituck County DSS moved to amend and supplement the record on appeal on

March 8, 2021. In our discretion, we deny Currituck County DSS’s motion. IN THE MATTER OF N.Z.B.

some of the trial court’s findings [] would indicate the opposite conclusion.”

Respondent-Mother also contests the district court’s subject matter jurisdiction to

adjudicate Noah as a dependent juvenile when the James City Court did not formally

relinquish jurisdiction.

¶ 17 After careful review, we vacate the order of the trial court due to the failure to

apply the correct evidentiary standard in finding Respondent-Mother acted

inconsistently with her constitutionally protected parental status. As we vacate the

order of the trial court, we do not reach the merits of Respondent-Mother’s other

arguments on appeal.

¶ 18 We review the determination of whether parental conduct is inconsistent with

the parent’s constitutionally protected status de novo. In re D.A., 258 N.C. App. 247,

249, 811 S.E.2d 729, 731 (2018). “A parent has an interest in the companionship,

custody, care, and control of his or her children that is protected by the United States

Constitution.” Boseman v. Jarrell, 364 N.C. 537, 549, 704 S.E.2d 494, 502 (2010)

(alterations, quotation marks, and citation omitted). “So long as a parent has this

paramount interest in the custody of his or her children, a custody dispute with a

nonparent regarding those children may not be determined by the application of the

best interest . . . standard.” Id. at 549, 704 S.E.2d at 503 (citation and quotation

marks omitted). However, a parent can forfeit their right to custody of their child by

unfitness or acting inconsistently with their constitutionally protected status. Id. IN THE MATTER OF N.Z.B.

¶ 19 A determination that a parent has forfeited this status must be based on clear

and convincing evidence. In re D.A., 258 N.C. App. at 249, 811 S.E.2d at 731;

Weideman v. Shelton, 247 N.C. App. 875, 880, 787 S.E.2d 412, 417 (2016). The trial

court must clearly address whether the parent is unfit or if their conduct has been

inconsistent with their constitutionally protected status as a parent, where the trial

court considers granting custody or guardianship to a nonparent. In re B.G., 197 N.C.

App. 570, 574, 677 S.E.2d 549, 552 (2009); In re J.L., 264 N.C. App. 408, 419, 826 S.E.

258, 266 (2019). “[T]he trial court must be clear that it is applying the ‘clear, cogent,

and convincing’ standard” when it determines a parent has acted inconsistently with

their paramount right to parent their children. Moriggia v. Castelo, 256 N.C. App.

34, 43, 805 S.E.2d 378, 383 (2017).

¶ 20 “ ‘[T]here is no bright line beyond which a parent’s conduct’ amounts to action

inconsistent with the parent’s constitutionally protected paramount status.” In re

A.C., 247 N.C. App. 528, 536, 786 S.E.2d 728, 735 (2016) (quoting Boseman, 364 N.C.

at 549, 704 S.E.2d at 503). Determining whether a parent has forfeited their

constitutionally protected status is a fact specific inquiry. Id. (citations omitted). In

making such a determination, the trial “court must consider ‘both the legal parent’s

conduct and his or her intentions’ vis-à-vis the child.” Id. (quoting Estroff v.

Chatterjee, 190 N.C. App. 61, 70, 660 S.E.2d 73, 78 (2008)).

¶ 21 Here, the trial court found IN THE MATTER OF N.Z.B.

91. [T]hat [Respondent-Mother] has acted inconsistently with her constitutionally protected right to parent [Noah] in that: the child was previously adjudicated in Virginia to be a neglected child due to her actions; she failed to make sufficient progress in her case plan; and on this date, the Court found, pursuant to North Carolina General Statute §7B-906.1(d)(3), that efforts for reunification with [Respondent-Mother] would clearly be futile or would be inconsistent with the child’s health and safety, and need for a safe, permanent home within a reasonable period of time [] and that efforts for reunification as defined in North Carolina General Statute §7B-101 shall no longer be required.

However, the trial court’s written order does not state that it applied the clear and

convincing evidence standard to its finding that Respondent-Mother acted

inconsistently with her constitutionally protected parental status; nor did the trial

court state what standard it used in open court. Where the trial court fails to state

the standard of proof applied in its decision, the case must be remanded. In re J.L.,

264 N.C. App. at 419-20, 826 S.E.2d at 266-67. Accordingly, we vacate and remand

for the application of the clear and convincing standard.

¶ 22 Respondent-Mother further contends the Currituck Court lacked subject

matter jurisdiction to enter an adjudication, disposition, and review and permanency

planning order when it failed to follow the procedure set out in the UCCJEA for

obtaining jurisdiction. As we vacate the trial court’s order, we need not address

Respondent-Mother’s other arguments on appeal. On remand, however, the trial

court should make findings addressing its exercise of jurisdiction under the UCCJEA. IN THE MATTER OF N.Z.B.

III. Conclusion

¶ 23 The trial court’s order fails to indicate that it applied the clear and convincing

evidence standard in determining Respondent-Mother acted inconsistently with her

constitutionally protected status as a parent. Therefore, we vacate the order of the

trial court and remand this matter for the application of the clear and convincing

standard and for appropriate findings regarding the Currituck Court’s jurisdiction

under the UCCJEA.

VACATED AND REMANDED.

Judges TYSON and HAMPSON concur.