No. COA19-421
Filed: 5 May 2020
Wake County, No. 16JA15
IN THE MATTER OF: J.M.
Appeal by Respondent Mother from order entered 16 January 2019 by Judge
Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals
18 February 2020.
Assistant County Attorney Julia B. Southwick for Petitioner-Appellee Wake County Human Services.
Christopher M. Watford for Respondent-Appellant Mother.
Battle, Winslow, Scott & Wiley, PA, by M. Greg Crumpler, and Senior Deputy County Attorney Roger A. Askew for guardian ad litem.
INMAN, Judge.
Respondent Jessica Hayes (“Mother”) appeals the district court’s permanency
planning order, pursuant to N.C. Gen. Stat. § 7B-1001(a)(4), placing guardianship of her infant daughter Jane1 with foster parents.[2] Mother contends the trial court erred in: (1) waiving further review hearings; (2) finding that she was an unfit parent; (3) failing to make an evidentiary finding that the foster parents understood the legal
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Opinion of the Court
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Opinion of the Court
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In November 2017, despite having her electricity turned off because she said she could not pay the bill, Mother hosted a first birthday party for Danielle at an amusement park and “assist[ed] her sister with her new born baby.” Mother still failed to acknowledge that Damon—who had recently been moved to a group home— suffered from mental illness and needed extensive treatment. Mother refused to allow the children’s guardian ad litem to enter her residence and observe her visits with them. Following the sixth review hearing in July 2018, the trial court kept in place the permanent plan of adoption with a secondary plan of reunification. The trial court noted that Mother “continue[d] to require significant monitoring during her visits with the children” and was “failing to provide appropriate supervision for all of the children when the visits occur in her home.” Although Mother claimed she was earning $477 a week, she failed to provide proof of income. Mother admitted that “many individuals” help care for Danielle because “she doesn’t have a consistent person to provide care for her.” Mother had reached the maximum amount of sessions with a parenting coach available to her. At one point, Mother visited Damon unannounced and falsely claimed that she had approval to be there. By December 2018, nearly three years after the four children were removed from Mother’s home, and despite protracted juvenile proceedings and supervision, WCHS observed that Mother continued to need supervision and re-direction when
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Opinion of the Court
visiting the children and frequently exhibited poor decision-making skills. By that time, Jane had developed a significant attachment to her foster parents and often secluded herself when visiting Mother and her siblings. On 16 January 2019, following another review hearing, the trial court awarded guardianship of Jane to her foster parents and waived further review hearings.[5] Mother appeals. II. ANALYSIS A. Waiving Review Hearings Mother first argues that the trial court erroneously waived future review hearings because the evidence was insufficient to support the court’s necessary findings. We disagree. In juvenile proceedings, the trial court must conduct review hearings every six months or earlier “to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.” N.C. Gen. Stat. § 7B-906.1(a) (2017). The trial court may waive future review hearings if it “finds by clear, cogent, and convincing evidence each of the following”: (1) The juvenile has resided in the placement for a period of at least one year. (2) The placement is stable and continuation of the placement is in the juvenile’s best interests. (3) Neither the juvenile’s best interests nor the rights of any party require that review hearings be held every six
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months. (4) All parties are aware that the matter may be brought before the court for review at any time by the filing of a motion for review or on the court's own motion. (5) The court order has designated the relative or other suitable person as the juvenile’s permanent custodian or guardian of the person. Id. §§ 7B-906.1(n)(1)-(5). The trial court cannot “waive or refuse to conduct a review hearing if a party files a motion seeking the review.” Id. § 7B-906.1(n). Mother concedes that the trial court made the statutory findings of fact, but contends that no evidence supports some of those findings. Finding 21 provides that “[n]either the best interests . . . of any party require that review hearings be held every six (6) months.” The social worker for WCHS, Christina Dillahunt (“Dillahunt”), testified at the most recent review hearing that, over the past three years since WCHS obtained non-secure custody, Mother has been unable to adequately care for the children without additional supervision and proper direction. Dillahunt testified, for example, that Mother routinely made poor decisions while monitoring the children, including feeding the children large amounts of sugary food, despite their needing significant dental work; attempted to show Jane a graphic picture of Mother’s sister’s vehicle crash; and asked Jane, then age three, to watch Danielle while she attended to another child. Mother does not contest the finding that “it does not appear likely that either parent will be in a position to safely parent [Jane] with the next six (6) months.” We hold this evidence provides, clear, cogent,
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and convincing support for the factors required by Section 7B-906.1(n) and the trial court’s waiver of future six-month review hearings. Finding 22 states that “[a]ll of the parties are aware that the matter may be reviewed upon motion for review of any party.” The hearing transcript reveals that the trial court informed the parties and their counsel who were present that “the matter may be brought before the Court for review at any time by filing a motion for review or on the court’s own motion.” Thus, the transcript establishes that the parties were aware that the matter could be reviewed upon a motion by any party, notwithstanding the trial court’s waiver of further periodic review hearings. B. Fitness as a Parent Mother next argues that the trial court’s finding that she was unfit as a parent was not supported by the evidence and violated her constitutional right as a parent. We disagree. “A natural parent’s constitutionally protected paramount 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 a presumption that he or she will act in the best interest of the child.” Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (citations omitted). However, “the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption
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or if he or she fails to shoulder the responsibilities that are attendant to rearing a child.” Id. “[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, or (2) where the natural parent’s conduct is inconsistent with his or her constitutionally protected status.” David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005). “Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy.” Price, 346 N.C. at 79, 484 S.E.2d at 534. “Therefore, the trial court must clearly address whether [the parent] is unfit as a parent or if her conduct has been inconsistent with her constitutionally protected status as a parent, should the trial court . . . consider granting custody or guardianship to a nonparent.” In re J.L., __ N.C. App. __, __, 826 S.E.2d 258, 266 (2019) (quotation marks, citations, and alterations omitted); see also In re D.A., 258 N.C. App. 247, 250, 811 S.E.2d 729, 732 (2018) (requiring the trial court “to find that the parents were either unfit or had acted inconsistently with their constitutionally protected status as parents”). At the end of the hearing, the trial court made an oral finding from the bench that “both parents are still unfit and have acted in a manner inconsistent with their constitutionally protected right as a parent.” In its written order, the trial court found
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that “[b]oth parents are acting inconsistently with the health and safety of the child and are unfit to have custody of the child.” A trial court’s finding that a parent is unfit will be affirmed on appeal if we conclude that the finding is supported by clear and convincing evidence. See, e.g., Adams v. Tessener, 354 N.C. 57, 66, 550 S.E.2d 499, 505 (2001) (concluding, to affirm the trial court’s award of custody to grandparents, that “the evidence of record constitutes clear and convincing proof that [the parent’s] conduct was inconsistent with his right to custody of the child”). The trial court made the following pertinent findings of fact: