In re: I.K. ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-619
Filed: 18 August 2020
Orange County, No. 16 JA 61
IN THE MATTER OF: I.K.
Appeal by respondents from order entered 22 March 2019 by Judge Samantha
Cabe in Orange County District Court. Heard in the Court of Appeals 27 May 2020.
Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee
Orange County Department of Social Services.
Batch, Poore & Williams, PC, by Sydney Batch, for respondent-appellant
mother.
Vitrano Law Offices, PLLC, by Sean P. Vitrano, for respondent-appellant
father.
Parker Poe Adams & Bernstein L.L.P., by R. Bruce Thompson II, for Guardian
ad Litem.
ARROWOOD, Judge.
Respondent parents appeal from the trial court’s Permanency Planning Order
establishing a permanent plan of placement for their daughter. For the following
reasons, we affirm.
I. Background
This appeal comes after multiple prior proceedings: a 7 November 2017
Permanency Planning Order regarding minor children I.K. (“Iliana”) and K.M.
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Opinion of the Court
(“Kevin”),1 which ceased reunification efforts between the children and respondents—
respondent-mother (“Patty”) and respondent-father (“Isaac”) (together
“respondents”)—and awarded guardianship of both children to their maternal
grandmother; a 7 August 2018 opinion from this Court vacating the
7 November 2017 Permanency Planning Order and remanding for further findings to
address Respondents’ fitness, whether they acted inconsistently with their
constitutionally protected status, and why reunification efforts should cease as to
Iliana and Kevin; and a 22 March 2019 Permanency Planning Order (“the Order”).
Respondents timely appeal the Order as to Iliana.
The background of this case is partially incorporated from the text of our
7 August 2018 opinion, which vacated the 7 November 2017 Permanency Planning
Order.
Iliana was born to Respondents in December 2012. On
10 November 2014, the Rockingham County Department
of Social Services received a report that Respondents lived
in a “hoarder home” that was unsafe, Respondents sold
their food stamps, Kevin was small for his age, there was
fighting in the home, and Respondents were smoking
marijuana and snorting Percocet. The Rockingham County
Department of Social Services investigated this report, but
no services were recommended at the time.
In 2015, the Orange County Department of Social Services
(“DSS”) received two reports alleging that Patty had
snorted pills while Kevin was in the home, and that Patty
and her brother were involved in a domestic dispute that
1 Pseudonyms are used throughout this opinion to protect the identity of juveniles and for the
ease of reading.
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resulted in the brother shaking and hitting Kevin. At that
point, Respondents were provided in-home services to
address concerns of substance use, mental health, and
domestic violence. On 8 January 2016, Patty was
sentenced to 45 days in jail for shoplifting and violating her
probation. Patty received another 45 day[s in jail] in April
2016 after [she tested positive for cocaine during her
probation]. At that time, Respondents placed Iliana with
the maternal grandmother[,] . . . [with whom] Kevin had
been residing [for the previous five years]. On
5 August 2016, Patty informed a DSS employee that [she
and Isaac] were being evicted from their home and were
homeless.
Due to concerns regarding Respondents’ unstable housing,
substance abuse, and lack of engagement in substance
abuse treatment services, DSS filed juvenile petitions on
10 August 2016 alleging that Kevin and Iliana were
neglected and dependent juveniles. DSS obtained
nonsecure custody that same day. Following a
15 September 2016 hearing, the trial court entered an
order on 13 October 2016 adjudicating the juveniles
dependent, keeping temporary legal and physical custody
with the maternal grandmother. The order required
Respondents to submit to random drug screens, seek
substance abuse treatment services, and follow any
treatment recommendations. After a permanency
planning hearing on 2 March 2017, the trial court entered
an order on 27 March 2017 establishing a primary
permanent plan of guardianship with the maternal
grandmother and a secondary plan of reunification with
Respondents. Following a 5 October 2017 permanency
planning hearing, the trial court entered a
7 November 2017 order ceasing reunification efforts and
awarding guardianship of the children to the maternal
grandmother. Respondents timely appealed the
7 November 2017 order.
In re I.K., K.M., 260 N.C. App. 547, 548-49, 818 S.E.2d 359, 361 (2018). Our
7 August 2018 opinion vacated and remanded the trial court’s 7 November 2017
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Order for the reasons stated therein and required the trial court to “make the
required finding that Respondents were unfit or had acted inconsistently with their
constitutionally protected status as parents . . . in [order to apply] the best interest of
the child test to determine that guardianship with the maternal grandmother was in
the children’s best interests.” Id. at 555, 818 S.E.2d at 365.
On 2 November 2018, the trial court again awarded guardianship of Kevin to
the maternal grandmother, and respondents did not appeal. That same day, the trial
court continued the permanency planning hearing as to Iliana. The trial court
conducted a permanency planning hearing on 3 January 2019 and 18 January 2019,
in which it heard further testimony from DSS employees, the maternal grandmother,
and respondents. On 22 March 2019, the trial court entered the present order finding
respondents had acted inconsistently with their constitutionally protected right to
parent Iliana, and again awarding guardianship of Iliana to her maternal
grandmother.
II. Discussion
Respondents argue that the trial court erred in the Order by: (a) finding that
respondents acted inconsistently with their constitutionally protected right to parent
Iliana, where such a finding was not supported by clear and convincing evidence; (b)
making various findings and conclusions of law required by statute that were not
supported by competent evidence; (c) making erroneous findings and conclusions of
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law that did not support its award of guardianship to Iliana’s maternal grandmother
under N.C. Gen. Stat. §§ 7B-906.1, -906.2 (2019); and (d) failing to provide
respondents with notice of their right to file a motion to review the visitation plan
with the trial court pursuant to N.C. Gen. Stat. § 7B-905.1(d) (2019). For the
following reasons, we find no merit to respondents’ arguments and affirm the Order.
A. Conduct Inconsistent with Constitutionally Protected Parental Status
Respondents argue that clear and convincing evidence did not support the trial
court’s relevant findings and conclusion of law that they had acted inconsistently with
their constitutionally protected right to parent Iliana, and the trial court accordingly
erred by proceeding to place Iliana’s best interest at the forefront of its decision. We
disagree.
Respondents correctly note that a higher evidentiary standard applies to the
present circumstances where the trial court has ordered custody with someone other
than a child’s natural parent as the permanent plan and concluded concurrent
planning involving reunification with the child’s parents. In re B.G., 197 N.C. App.
570, 574-75, 677 S.E.2d 549, 552-53 (2009).
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. 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
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responsibilities that are attendant to rearing a child. If a
natural parent’s conduct has not been inconsistent with his
or her constitutionally protected status, application of the
“best interest of the child” standard in a custody dispute
with a nonparent would offend the Due Process Clause.
However, conduct inconsistent with the parent’s protected
status, which need not rise to the statutory level
warranting termination of parental rights, would result in
application of the “best interest of the child” test without
offending the Due Process Clause. 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. Where such conduct is
properly found by the trier of fact, based on evidence in the
record, custody should be determined by the “best interest
of the child” test mandated by statute.
Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534-35 (1997) (internal citations
omitted).
“There is no bright line beyond which a parent’s conduct amounts to action
inconsistent with the parent’s constitutionally protected paramount status. Our
Supreme Court has emphasized the fact-sensitive nature of the inquiry, as well as
the need to examine each parent’s circumstances on a case-by-case basis. The court
must consider both the legal parent’s conduct and his or her intentions vis-à-vis the
child.” In re A.C., 247 N.C. App. 528, 536, 786 S.E.2d 728, 735 (2016) (alterations,
internal quotations marks and citations omitted).
Analyzing the totality of the circumstances noted in the Order’s findings of
fact, for the following reasons we hold that the trial court did not err in determining
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that respondents acted inconsistently with their constitutionally protected status as
Iliana’s parents.
1. Findings of Fact
In our review of a trial court’s findings relevant to its determination that a
parent has acted inconsistently with his constitutionally protected status, “[t]he Due
Process Clause . . . requires that [such findings] must be supported by clear and
convincing evidence.” Id. at 533, 786 S.E.2d at 733 (footnote and citation omitted).
“The clear and convincing standard requires evidence that should fully convince. This
burden is more exacting than the preponderance of the evidence standard generally
applied in civil cases, but less than the beyond a reasonable doubt standard applied
in criminal matters. Our inquiry as a reviewing court is whether the evidence
presented is such that a fact-finder applying that evidentiary standard could
reasonably find the fact in question.” Id. at 533, 786 S.E.2d at 734 (alterations,
internal quotation marks, and citations omitted).
In their separate briefs, respondents argue that numerous findings of fact in
the Order are not supported by clear and convincing evidence. These findings relate
to the court’s belief that respondents’ historic issues with unsuitable housing,
domestic violence, and substance abuse which caused Iliana to be placed with her
maternal grandmother still persisted and impeded Iliana’s ability to safely return to
their parental care.
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For example, the trial court found that “[b]oth [respondents] have acted
inconsistently with their constitutionally-protected right to parent the minor child.”
In support of this finding, the trial court made specific findings regarding the
respondents’ voluntary placement of Iliana with her maternal grandmother due to
“[Patty]’s impending incarceration and [Isaac]’s lack of suitable housing and work
schedule,” the remaining absence of “safe and stable housing appropriate for [Iliana]
in the three (3) years the juvenile has been out of their custody,” and the respondents’
continued acts of domestic violence and illegal drug use. Our analysis focuses on
whether clear and convincing evidence was presented to the trial court on the issues
of housing, domestic violence, and drug use.
a. Housing
Respondents challenge the trial court’s findings to the effect that respondents
failed to rectify their housing situation to an extent that Iliana could return to live
with them. In particular, the trial court found the following: “the home in which
[respondents] were living . . . was deemed not suitable for [Iliana] when RCDSS
visited the home in the spring of 2018 and again on 12/12/2018”; “the issues of . . .
safe . . . housing are still present”; “[respondents] continue to reside with their infant
daughter and [Iliana’s] paternal grandmother . . . in a two-bedroom single wide
trailer that has holes in the floor that were recently covered with plywood . . . and
that has not otherwise been maintained”; “the housing conditions of [respondents] . . .
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was not safe and appropriate for [Iliana]. Any improvements made between the
beginning of th[e] hearing and its conclusion are not indicative of the day-to-day
condition of the home”; “[respondents] continue to reside . . . [in a] home [that] is not
appropriate at this time for placement of [Iliana]”; and “[respondents] are not making
adequate progress [and] . . . have not resolved the issues of . . . instable housing that
led to removal of custody.”
Ample evidence supported the trial court’s findings that the cluttered,
crowded, dilapidated single-wide trailer in which respondents resided with their
newborn and Isaac’s mother was an unsafe and unsuitable place for Iliana to dwell.
Jordan Houchins (“Mr. Houchins”), an investigator with Rockingham County Child
Protective Services, testified that in the spring of 2018 he visited the trailer and
observed clutter “piled up literally to the ceiling”, and opined “that [he] would
consider [this] a hoarding situation[.]” Mr. Houchins also observed structural issues
with the floors of the small trailer. When Mr. Houchins visited the trailer again in
December 2018, the same issues remained. Isaac’s mother told Mr. Houchins a child
could sleep on the pull-out couch in the living room if Iliana lived in the trailer, as a
child already lived in the trailer with respondents and Isaac’s mother. Mr. Houchins
testified, consistent with the Adjudication Court Report, that he had concern about
young children living in a small trailer in that condition. Mr. Houchins noted that a
child currently resided at the trailer, but expressed concern with another child
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coming to live at the trailer, in light of the trailer’s size, clutter, condition of the floors,
and Isaac’s mother’s health and mobility difficulties.
Citing only photographs taken during the proceedings on 3 January 2019
showing a slight improvement in the clutter and reinforced plywood flooring,
respondents would have us contravene the trial court’s finding that “the day-to-day
condition of the home” was presently unsafe. Such a contravention would be an
improper usurpation of the trial court’s credibility judgment between conflicting
evidence. These pictures alone, taken after initiation of the instant proceedings once
it became apparent that unsafe housing was an area of concern for the trial court, are
insufficient to override the court’s credibility assessment of the evidence before it
concerning the safety and suitability of respondents’ current housing situation. The
trial court expressly found the reports and testimony presented by the guardian ad
litem and social workers assigned to the case more credible than respondents’
representations as to recent improvements in the condition of the trailer.
“In a nonjury trial, it is the duty of the trial judge to consider and weigh all of
the competent evidence, and to determine the credibility of the witnesses and the
weight to be given their testimony. If different inferences may be drawn from the
evidence, the trial judge must determine which inferences shall be drawn and which
shall be rejected.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365-66
(2000) (internal citations omitted). A trial court’s credibility assessments are no basis
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for relief on appeal in child protection proceedings or otherwise. See In re A.C., 247
N.C. App. at 550 n.8, 786 S.E.2d at 743 n.8 (citation omitted). Here, the trial court
acted within its discretion in finding the testimony and reports of the guardian ad
litem and social workers who had visited the home more credible on the issue of the
trailer’s current condition than a few photographs taken during the proceedings.
While we may presume that respondents will not remove the reinforced
plywood flooring at the termination of these proceedings, the trial court possessed
clear and convincing evidence that the remaining issues identified with the trailer
related to clutter, living space, and other structural issues remained impediments to
Iliana’s safe placement within the dwelling. When coupled with the trial court’s
uncontested finding that “[r]espondent parents indicate they plan to reside with [the
paternal grandmother] in the future despite the ongoing concerns about the safety
and appropriateness of the condition of the home[,]” the trial court appropriately
found that respondents’ failure to furnish safe and suitable housing for Iliana bore
upon whether their conduct was inconsistent with their constitutionally protected
parental rights.
b. Domestic Violence
Respondents also challenge the Order’s findings to the effect that respondents
have failed to rectify their issues with domestic violence to an extent that Iliana could
return to live with them. In particular, the trial court found the following:
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“[respondents] continue to engage in domestic violence . . . despite their completion
of treatment and classes”; “the issues of . . . domestic violence . . . are still present
despite numerous services that have been offered to the family”; “[t]here has not been
another identified domestic violence incident between Respondent parents, however
there has been domestic violence in the home between [Isaac] and his mother”; “[t]he
issues that led to removal of custody, to wit, . . . domestic violence, . . . have not been
resolved.”
These findings of fact are erroneous as to Patty. The trial court considered
evidence that she regularly participated in counseling regarding domestic violence
and had not been involved in a domestic violence incident with Isaac since October of
2016. There was no other evidence indicating Patty’s past issues with domestic
violence persisted.
However, these findings of fact are supported by clear and convincing evidence
as to Isaac. The trial court’s remaining unchallenged findings of fact establishing
respondents’ extensive history of domestic violence issues, when coupled with
evidence of the most recent domestic disturbance Isaac had with his mother in the
same trailer in which he wishes Iliana to reside, support its ultimate finding that he
has not resolved his issues with domestic violence to an extent necessary to safely
place Iliana in his custody.
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Emily Wise (“Ms. Wise”), the DSS “assigned social worker for [Iliana],” testified
concerning the respondents’ extensive history of domestic violence, which she also
detailed in the Adjudication Court Report. In particular, Isaac was convicted of
misdemeanor assault on a female as a result of an incident between Patty and him
in October 2016.
The Order mischaracterizes the most recent domestic incident as one involving
actual physical violence. In fact, the evidence shows that police were called to the
residence on 23 August 2018 to respond to reports of a loud verbal disagreement.
However, the OCDSS report characterizes the incident as more than just a simple
argument. Rather, Isaac was reportedly being “verbally aggressive . . . and was
‘tearing up’ the [trailer].” This evidence certainly does not refute the court’s
continuing concern.
While a trial court may not solely “rely on prior events to find [facts relevant
to the current state of matters in issue at a permanency planning hearing], it may
certainly consider facts at issue in light of prior events.” In re A.C., 247 N.C. App. at
535, 786 S.E.2d at 735 (citing Cantrell v. Wishon, 141 N.C. App. 340, 344, 540 S.E.2d
804, 806-807 (2000) (“[T]he trial court erroneously placed no emphasis on the
mother’s past behavior, however inconsistent with her rights and responsibilities as
a parent[;] . . . failed to consider the long-term relationship between the mother and
her children; . . . and failed to make findings on the mother’s role in building the
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relationship between her children and the [nonparent custodians].”)). In light of the
trial court’s detailed, unchallenged findings establishing Isaac’s extensive history of
domestic violence and reluctance to complete perpetrator programs except as
mandated by the court, the trial court acted within its discretion in characterizing
his most recent outburst as an indication that his issues with domestic violence have
not been resolved to the extent necessary to place Iliana in his care.
c. Substance Abuse
Finally, respondents challenge the trial court’s findings to the effect that
respondents have failed to rectify their issues with substance abuse to an extent that
Iliana could return to live with them. In particular, the trial court found the
following: “[respondents] continue to engage in . . . illegal drug use despite their
completion of treatment and classes”; “the issues of substance use . . . and safe,
substance-free housing are still present despite numerous services that have been
offered to the family”; “[respondents] continue to use marijuana despite substance
abuse treatment. [Patty] has sought prescription painkillers from her mother on
more than one occasion while [Iliana] has been placed out of the home”; and
“[respondents] are not making adequate progress . . . [and] have not resolved the
issue[] of substance abuse . . . that led to removal of custody.”
Clear and convincing evidence supported these findings of fact as to both
respondents. The trial court considered evidence that respondents completed
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substance abuse treatment on 16 March 2018. Respondents provided hair follicles
for a drug screen, and the screen of both respondents on 4 September 2018 indicated
marijuana use. The trial court was also presented with evidence of Patty’s continued
drug seeking behavior after the 7 November 2017 Permanency Planning Order.
Ms. Wise testified that Patty had engaged in drug seeking behavior after the
appeal and remand of the 7 November 2017 Order. Specifically, Patty texted “her
mother . . . requesting pain medications on several occasions,” including a text
message asking “Do you have a couple of pills I can get?” on 10 June 2018, as well as
a text message on 10 August 2018 requesting pain medication. Patty’s drug seeking
behavior is supportive of the trial court’s findings of Patty’s continued drug use.
The trial court heard evidence that Isaac completed his substance abuse
treatment program in March of 2018 and has since tested positive for marijuana on
the same day as Patty and exchanged text messages with her seeking to purchase
marijuana. Therefore the court had clear and convincing evidence before it that,
viewed in light of Isaac’s extensive history of substance abuse recognized by the
majority, there was legitimate cause to question whether he had overcome this
problem such that Iliana could be safely placed within his home. The trial court also
found that he intended to continue residing indefinitely with Patty, who continues to
exhibit drug-seeking behavior, in the very trailer where they were previously known
to snort pills and consume other impairing substances together in front of their
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children. We therefore uphold the trial court’s findings of fact to the effect that
respondents have not overcome their substance abuse issues to its satisfaction in
deciding whether placement of Iliana in their home would be appropriate.
2. Conclusion of Law
The order’s aforementioned findings of fact support the trial court’s conclusion
of law that respondents’ conduct was inconsistent with their constitutionally
protected right to parent Iliana. Clear and convincing evidence supported the Order’s
findings that recent incidents raised serious concerns about their progress in
resolving their chronic issues related to unsafe housing, domestic violence, and
substance abuse that had precipitated the circumstances in which Iliana was
adjudicated dependent and placed with her maternal grandmother in 2014. When
considered in light of the order’s undisputed findings establishing respondents’
extensive history as to each of these chronic issues and their detrimental effect on
Iliana, we uphold the trial court’s determination that the totality of circumstances
relevant to their conduct was inconsistent with their constitutionally protected status
as Iliana’s parents. Having overcome this constitutional threshold, the trial court
appropriately placed Iliana’s best interest at the forefront of its decision to grant
guardianship to her grandmother as the permanent plan.
B. Analysis Under the Statutory Standard for Permanency Planning
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Respondents make the same evidentiary challenges to the trial court’s findings
of fact in arguing that they fail to satisfy the statutory requirements applicable to an
order granting guardianship to a nonparent as the permanent plan over a parent’s
objections. In essence, they contend that competent evidence does not support the
trial court’s findings that they have failed to resolve the issues of domestic violence,
substance abuse, and instable housing that lead to Iliana’s placement with her
grandmother three years prior. Having already determined that these findings of
fact clear the higher constitutional bar imposed by the Due Process Clause, we hold
that the trial court heard competent evidence to support these findings.
In turn, these findings support the statutorily required ultimate findings of
fact and the order’s conclusions of law with which respondents take issue. “In
choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B-906.1 (2013), the
juvenile’s best interests are paramount. We review a trial court’s determination as
to the best interest of the child for an abuse of discretion.” In re A.C., 247 N.C. App.
at 532-33, 786 S.E.2d at 733 (citation omitted). “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 re T.H., __ N.C. App. __, __, 832
S.E.2d 162, 164 (2019) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,
527 (1988)).
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Pursuant to N.C. Gen. Stat. § 7B-906.1(d), the trial court held that efforts to
reunite Iliana with her parents would be unsuccessful or inconsistent with her health,
safety, and need for a safe and permanent home within a reasonable period of time.2
This conclusion rested upon its determination that “[t]he issues that lead to removal
of custody . . . have not been resolved.” Per N.C. Gen. Stat. § 7B-906.1(e), the trial
court also held that it was not possible to place Iliana with her parents within the
next six months and doing so was not in her best interest. This conclusion was based
upon its continuing concerns with the issues leading to State involvement and
respondents’ plan to continue residing in the trailer deemed inappropriate for Iliana’s
placement. For the same reasons, the trial court held that respondents demonstrated
a lack of success by not making adequate progress under the secondary plan of
reunification and acting in a manner inconsistent with the health or safety of Iliana,
pursuant to N.C. Gen. Stat. § 7B-906.2(d).
The trial court’s ultimate findings on each of these matters find ample support
in its findings of fact discussed supra regarding the trial court’s continuing concerns
with respondents’ domestic violence, substance abuse, and inadequate housing.
These ultimate findings in turn support its conclusion that “[t]he best plan of care to
achieve a safe, permanent home for [Iliana] within a reasonable period of time is
implementation of the primary plan of guardianship to . . . [her] maternal
2The trial court made findings of fact speaking to all the requisite criteria in N.C. Gen. Stat.
§§ 7B-906.1, -906.2. We address only those challenged by respondents.
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grandmother[,]” and that such placement would be in her best interest. The court’s
decision is not manifestly unsupported by reason. Therefore, the trial court did not
abuse its discretion in its permanency planning order granting guardianship of Iliana
to her grandmother.
C. Visitation Plan
Respondents respectively challenge the visitation plan within the Order on
separate grounds. We find no merit in either argument.
1. Parameters of Visitation Plan
Patty challenges the trial court’s visitation order, which limited her to “a
minimum of one hour per week of supervised visitation [with Iliana].” “This Court
reviews the trial court’s dispositional orders of visitation for an abuse of discretion.”
In re C.S.L.B., 254 N.C. App. 395, 399, 829 S.E.2d 492, 495 (2017) (internal quotation
marks and citation omitted). Patty’s arguments center on whether visitation should
be unsupervised, and she contends the trial court lacked competent evidence to order
visitation supervised by Iliana’s maternal grandmother.
According to N.C. Gen. Stat. § 7B-905.1(c) (2019),
If the juvenile is placed or continued in the custody or
guardianship of a relative or other suitable person, any
order providing for visitation shall specify the minimum
frequency and length of the visits and whether the visits
shall be supervised. The court may authorize additional
visitation as agreed upon by the respondent and custodian
or guardian.
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The trial court ordered that “Respondent[s] shall have a minimum of one hour
per week of supervised visitation. The guardian has the authority and discretion to
allow additional visitation.” The trial court’s order complied with N.C. Gen. Stat. §
7B-905(c). The trial court also heard testimony that respondents’ unsupervised
visitation had previously been rescinded due to separate instances of visitation where
respondents “appeared to be under the influence.” Iliana’s guardian ad litem
recommended supervised visitation. Iliana’s therapist’s letter also described
concerns with changing the juvenile’s routine, and that current treatment involved
“the use of structure and predictability” to increase Iliana’s ability to “accept care and
feel settled and soothed by an adult caregiver as well as increasing [Iliana’s] trust in
adults to take care of her needs.” The trial court’s order for supervised visitation as
to Patty is not manifestly unsupported by reason, and the trial court did not abuse
its discretion.
2. Notice of Right to File Motion to Review Visitation Plan
Finally, Isaac argues that the trial court failed to provide him with notice of
his right to file a motion with the court to review the visitation plan established in
the Order, as required by N.C. Gen. Stat. § 7B-905.1(d). We find no merit in this
argument and otherwise deem any purported error harmless.
“If the court retains jurisdiction” in its dispositional order in a permanency
planning case, “all parties shall be informed of the right to file a motion for review of
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any visitation plan entered pursuant to this section.” N.C. Gen. Stat. § 7B-905.1(d).
Here, in open court the trial court made the parties aware in a general sense that it
would retain continuing jurisdiction and could review any aspect of its permanency
planning order upon its own motion or that of a party: “[B]ecause [Iliana] has been
placed with her grandmother . . . if something changes at some point, the motions can
be made back to this Court if changes need to be made.” Furthermore, in its written
order the court noted that “[a]ll 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” and “Juvenile Court jurisdiction shall continue.”
Assuming arguendo Isaac’s position that the trial court was required to
explicitly reference the parties’ right of review under N.C. Gen. Stat. § 7B-905.1(d),
any such error was harmless. Isaac has not pointed to any right lost or prejudiced by
the trial court’s failure to timely provide such notice. Moreover, Isaac’s mere
assignment of error on this issue indicates that he has since become aware of his right
of review under N.C. Gen. Stat. § 7B-905.1(d). We otherwise find no merit in his
argument that any purported inadequacy of the notice provided amounts to reversible
error.
III. Conclusion
For the foregoing reasons, we affirm the trial court’s permanency planning order.
AFFIRMED.
- 21 -
IN RE: I.K
Opinion of the Court
Judge INMAN concurs.
Judge Murphy concurs in part and dissents in part in separate opinion.
-2-
No. COA19-619 – In re I.K.
MURPHY, Judge, concurring in part and dissenting in part.
The Majority determined that clear and convincing evidence supported the
findings relevant to the trial court’s determination that Patty and Isaac acted
inconsistently with their constitutionally protected right to parent Iliana.
Specifically, the Majority held that clear and convincing evidence supported the trial
court’s findings that Patty and Isaac had failed to resolve issues with housing,
domestic violence, and drug abuse to an extent they could reunite with Iliana. I agree
that competent evidence supported the trial court’s finding that Patty had not
resolved one of those issues—drug abuse—and so would affirm the Order’s finding
and conclusion concerning Patty acting inconsistently with her constitutionally
protected right to parent Iliana. I also agree with the Majority that “the trial court’s
order for supervised visitation as to Patty is not manifestly unsupported by reason,
and the trial court did not abuse its discretion.” However, no competent evidence was
presented to the trial court as to Isaac on the issues of housing, domestic violence,
and drug abuse, and I would accordingly reverse as to Isaac. I respectfully dissent.
ANALYSIS
A. Challenged Findings in the 22 March 2019 Permanency Planning Order
In their separate briefs, Patty and Isaac challenged the following Findings of
Fact in the Order:
26. Both [Patty] and [Isaac] have acted inconsistently
with their constitutionally-protected right to parent
[Iliana]. Specifically, this court finds as follows:
IN RE I.K.
Murphy, J., dissenting
a. [Patty and Isaac] voluntarily placed [Iliana]
with her maternal grandmother on [26] April
[] 2016 because of [Patty]'s impending
incarceration and [Isaac]'s lack of suitable
housing and work schedule.
b. [Patty and Isaac] have not obtained safe and
stable housing appropriate for [Iliana] in the
three (3) years [Iliana] has been out of their
custody. Though the home in which they were
living was found to have met minimum
standards by RCDSS on two visits between [2]
March [] 2017 and [5] October [] 2017, the
home was deemed not suitable for [Iliana]
when RCDSS visited the home in the spring
of 2018 and again on [12 December 2018].
c. [Patty and Isaac] continue to engage in
domestic violence and illegal drug use despite
their completion of treatment and classes.
27. When this hearing began on [3] January [] 2019,
[Patty and Isaac] were still residing with [Isaac]'s
mother in a home that Rockingham County DSS
deemed unsuitable for the children as late as [12]
December [] 2018.
28. [Patty and Isaac] have made some limited progress
to remedy conditions that led to [Iliana] being
removed from their home. However, the issues of
substance use, domestic violence, and safe,
substance-free housing are still present despite
numerous services that have been offered to the
family since the issues were first identified in 2014.
...
30. [Patty] concluded a domestic violence support group
at the Compass Center in May 2017. [Isaac]
completed a domestic violence perpetrator program
at Alamance County DV Prevention in February
2018. There has not been another identified
domestic violence incident between [Patty and
Isaac], however there has been domestic violence in
the home between [Isaac] and his mother[.]
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IN RE I.K.
Murphy, J., dissenting
...
34. Despite [Isaac] earning a gross income of $46,349.00
per year in a job he has maintained for l0 years and
[Isaac’s mother] paying a portion of the household
expenses, [Patty and Isaac] continue to reside with
their infant daughter and [Isaac’s mother] with
whom they moved after eviction in 2016 in a two-
bedroom single wide trailer that has holes in the
floor that were recently covered with plywood at the
request of RCDSS, and that has not otherwise been
maintained.
...
37. At the continuation of this hearing on [18] January
[] 2019, [Patty and Isaac] provided photographs of
the home that showed somewhat improved
conditions from the conditions reflected in the
photographs and testimony presented on [3]
January [] 2019. [Patty] testified that the new
photos were taken after the [3] January [] 2019
beginning of the hearing. The court finds the
testimony and documentation of Rockingham
County DSS to be credible, and that the housing
conditions of [Patty and Isaac] as of [12] December []
2018 was not safe and appropriate for the minor
child. Any improvements made between the
beginning of this hearing and its conclusion are not
indicative of the day-to-day condition of the home.
...
40. The following are relevant pursuant to N.C.G.S. §
7B-906.1(d): . . .
c. Efforts to reunite [Iliana] with either [Patty
or Isaac] would be unsuccessful or
inconsistent with [Iliana’s] health or safety
and need for a safe, permanent home within a
reasonable period of time. The issues that led
to removal of custody, to wit, substance abuse,
domestic violence, and housing, have not been
resolved. [Iliana] has resided with her
maternal grandmother for over half of her life.
3
IN RE I.K.
Murphy, J., dissenting
41. The Court finds, pursuant to N.C.G.S. § 7B-906.1(e),
it is not possible for [Iliana] to be returned home or
placed with Respondent[s] within the next six
months. Placement with Respondent[s] is not in
[Iliana’s] best interest. In support of this ultimate
finding of fact, the court specifically finds the
following3:
...
b. [Patty and Isaac] have been involved
with the Department since October
2015 due to concerns about substance
use, domestic violence, and unstable
housing, and had involvement with
Rockingham County DSS in 2014
regarding the same issues that remain
unresolved in 2019.
c. [Patty and Isaac] continue to use
marijuana despite substance abuse
treatment. [Patty] has sought
prescription painkillers from her
mother on more than one occasion
while [Iliana] has been placed out of the
home.
d. [Patty and Isaac] continue to reside
with [Isaac’s mother]. This home is not
appropriate at this time for placement
of [Iliana].
b. Placement with [Patty] or [Isaac] is unlikely
within six months, and:
i. Legal guardianship or custody with a
relative should be established. [Patty
and Isaac] should retain the right of
visitation and the responsibility of
providing financial support to [Iliana]
by paying regular child support.
ii. Adoption should not be pursued.
iii. [Iliana] should remain in the current
3The tabbing and inclusion of the first “b.,” “c.,” and “d.” before the second “b.”, etc., appears
in the Order in the Record.
4
IN RE I.K.
Murphy, J., dissenting
placement because it is meeting her
needs and in her best interests.
iv. Due to the history of the case and
relationship between [respondents]
and [the maternal grandmother], the
guardian ad litem recommends
guardianship to [the maternal
grandmother] in [Iliana’s] best
interest.
c. Since the initial permanency planning
hearing, OCDSS has made reasonable efforts
to finalize [Iliana’s] permanent plans as laid
out below.
...
43. Pursuant to N.C.G.S. § 7B-906.2(d), the following
demonstrate a lack of success:
a. [Patty and Isaac] are not making adequate
progress within a reasonable period of time
under the secondary plan of reunification.
They have not resolved the issues of
substance abuse and instable housing that led
to removal of custody.
b. [Patty and Isaac] have partially participated
in or cooperated with the plan, the
department, and [Iliana’s] Guardian ad
Litem.
...
d. [Patty and Isaac] have acted in a manner
inconsistent with the health or safety of
[Iliana] as set forth herein.
44. The best plan of care to achieve a safe, permanent
home for [Iliana] within a reasonable period of time
is implementation of the primary plan of
guardianship to a relative, specifically to [the
maternal grandmother].
...
57. The Court finds pursuant to N.C.G.S. § 7B-906.1(n):
...
5
IN RE I.K.
Murphy, J., dissenting
b. The placement is stable, and continuation of
the placement is in her best interest.
In their separate briefs, Patty and Isaac challenged the following Conclusions
of Law in the Order:
2. It is in the best interest of [Iliana] that guardianship
be granted to [the maternal grandmother].
...
4. Implementation of guardianship as a permanent
plan for [Iliana] is made within the time prescribed
by law, is appropriate and is in [Iliana’s] best
interest.
...
6. [Patty and Isaac] have acted inconsistently with
their protected status.
7. [The maternal grandmother] is a fit and proper
person to have guardianship of [Iliana] and that it is
in the best interest of [Iliana] that guardianship be
granted to and continued with [Iliana’s maternal
grandmother].
8. It is in the best interest of [Iliana] to have supervised
visitation with [Patty and Isaac] once per week
pursuant to the schedule that [Patty and Isaac] and
caretaker have been following for the last several
months.
B. Standard of Review
“Appellate review of a permanency planning order is limited to whether there
is competent evidence in the [R]ecord to support the findings and [whether] the
findings support the conclusions of law.” In re S.J.M., 184 N.C. App. 42, 47, 645
S.E.2d 798, 801 (2007), aff’d, 362 N.C. 230, 657 S.E.2d 354 (2008). Further, “[t]he
6
IN RE I.K.
Murphy, J., dissenting
findings of fact by the trial court in a nonjury trial have the force and effect of a jury
verdict and are conclusive on appeal when supported by any competent evidence, even
if the evidence could sustain contrary findings.” In re Norris, 65 N.C. App. 269, 275,
310 S.E.2d 25, 29 (1983). “When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the trial as it deems
appropriate. In this situation, the trial judge acts as both judge and jury, thus
resolving any conflicts in the evidence.” In re Oghenekevebe, 123 N.C. App. 434, 439,
473 S.E.2d 393, 397 (1996) (internal citations omitted).
“[T]he . . . right of parents to make decisions concerning the care, custody, and
control of their children[]” is fundamental. Troxel v. Granville, 530 U.S. 57, 66, 147
L.Ed.2d 49, 57 (2000). “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). “[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 . . . constitutionally protected
status.” In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011) (quoting
David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005)).
7
IN RE I.K.
Murphy, J., dissenting
We review “the trial court’s conclusions that [a parent] has acted in a manner
inconsistent with her constitutionally protected paramount status . . . de novo.” In re
A.C., 247 N.C. App. 528, 535, 786 S.E.2d 728, 735 (2016) (internal marks omitted).
“[A] trial court’s determination that a parent’s conduct is inconsistent with his or her
constitutionally protected status must be supported by clear and convincing
evidence.” Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001). “There is
no bright line beyond which a parent’s conduct amounts to action inconsistent with
the parent’s constitutionally protected paramount status. Our Supreme Court has
emphasized the fact-sensitive nature of the inquiry, as well as the need to examine
each parent’s circumstances on a case-by-case basis.” In re A.C., 247 N.C. App. at
536, 786 S.E.2d at 735 (internal marks and citations omitted).
“[T]o 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 constitutionally protected
status.” In re B.G., 197 N.C. App. 570, 574, 677 S.E.2d 549, 552 (2009) (citations
omitted). Upon a proper finding of unfitness or actions inconsistent with the parent’s
constitutionally protected status, the trial court determines the best interest of the
child. Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994). When
determining the appropriate permanent plan according to N.C.G.S. § 7B-906.1, “the
trial court should consider the parents’ right to maintain their family unit, but if the
interest of the parent conflicts with the welfare of the child, the latter should prevail.
8
IN RE I.K.
Murphy, J., dissenting
Thus, in this context, the child’s best interests are paramount, not the rights of the
parent.” In re T.K., 171 N.C. App. 35, 39, 613, S.E.2d 739, 741, aff’d per curiam, 360
N.C. 163, 622 S.E.2d 494 (2005) (citations and quotations omitted). “The court’s
determination of the juvenile’s best interest will not be disturbed absent a showing
of an abuse of discretion.” In re T.H., 832 S.E.2d 162, 164 (N.C. Ct. App. 2019)
(quoting In re E.M., 202 N.C. App. 761, 764, 692 S.E.2d 629, 630 (2010)); see also In
re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007). “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 re T.H., 832 S.E.2d
at 164 (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
C. Findings of Inconsistent Action with Constitutionally Protected Status
on Remand
We vacated the 7 November 2017 Permanency Planning Order because the
trial court failed to make the required finding that respondents were unfit or had
acted inconsistently with their constitutionally protected status as parents. See In re
I.K., 260 N.C. App. 547, 550, 818 S.E.2d 359, 362 (2018). We held that, absent such
a finding, the trial court erred in reaching a best interest of the child analysis to
determine that guardianship with the maternal grandmother was in the best interest
of Iliana and Kevin. Id. Our opinion focused on the absence of a necessary finding,
Id. at 550, 555, 818 S.E.2d at 362, 365, and accordingly the bulk of my analysis in
this Dissent focuses on the trial court’s findings, and whether they were supported
by competent evidence. Patty and Isaac only appeal the Order as to Iliana, not as to
9
IN RE I.K.
Murphy, J., dissenting
Kevin, and I examine the trial court’s findings and conclusions of law as to Iliana
only.
The Order made the findings required by our opinion remanding the 7
November 2017 Permanency Planning Order. In particular, the trial court included
Finding of Fact 26 in the Order, finding that “[b]oth [Patty and Isaac] have acted
inconsistently with their constitutionally-protected right to parent the minor child.”
In support of Finding of Fact 26, the trial court made specific findings regarding
respondents’ voluntary placement of Iliana with her maternal grandmother due to
“[Patty]’s impending incarceration and [Isaac]’s lack of suitable housing and work
schedule,” the remaining absence of “safe and stable housing appropriate for [Iliana]
in the three (3) years [Iliana] has been out of [respondents’] custody,” and the
respondents’ continued acts of domestic violence and illegal drug use. My analysis
focuses on whether competent evidence was presented to the trial court on the issues
of housing, domestic violence, and drug use. The Order also concluded as a matter of
law that “[respondents] have acted inconsistently with their protected status.”
The Order classifies its findings to comply with the requirements stated in our
7 August 2018 Order remanding the 7 November 2017 Permanency Planning Order
for further findings of unfitness or inconsistent action with respondents’
constitutionally protected status as parents. However, I note that several findings
categorized as findings of fact were, at least partially, conclusions of law. See In re
Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal citations and
10
IN RE I.K.
Murphy, J., dissenting
alterations omitted) (holding that “any determination requiring the exercise of
judgment, or the application of legal principles is more properly classified a
conclusion of law”); see also Plott v. Plott, 313 N.C. 63, 73-74, 326 S.E.2d 863, 869-70
(1985). The trial court’s classification of its own determination as a finding or
conclusion does not govern this court’s analysis. See State v. Icard, 363 N.C. 303, 308,
677 S.E.2d 822, 826 (2009); State v. Burns, 287 N.C. 102, 110, 214 S.E.2d 56, 61-62
(1975).
Specifically, the trial court’s Findings of Fact 40(c), 41(b), and 43 in the Order
actually amount to conclusions of law, inasmuch as they declare the following:
whether “[e]fforts to reunite [Iliana] with either [Patty or Isaac] would be
unsuccessful or inconsistent with [Iliana’s] health or safety and need for a safe,
permanent home within a reasonable period of time” under N.C.G.S. § 7B-906.1(d);
that “[p]lacement with [respondents] is unlikely within six months” under N.C.G.S.
§ 7B-906.1(e); and the inadequacy of respondents’ progress, participation, and
cooperation in the reunification plan, including actions regarding “the health or
safety of [Iliana],” under N.C.G.S. § 7B-906.2(d).
While the trial court made findings on remand to comply with the
requirements of our 7 August 2018 opinion, I treat the portions of Findings 40(c),
41(b), and 43 requiring exercise of judgment or application of legal principles as
conclusions of law and apply the appropriate de novo standard of review. See Icard,
363 N.C. at 308, 677 S.E.2d at 826 (“While we give appropriate deference to the
11
IN RE I.K.
Murphy, J., dissenting
portions of [the relevant findings] that are findings of fact, we review de novo the
portions of those findings that are conclusions of law.”).
The trial court made findings regarding respondents’ issues with housing,
domestic violence, and drug abuse, and used those findings to support its finding that
they acted inconsistently with their constitutionally protected right to parent Iliana.
The Majority addressed the issues of housing, domestic violence, and drug abuse in
that order. Accordingly, I analyze each of those issues as they relate to respondents
in the same order as the Majority.
D. Challenged Findings of Fact
1. Housing
On appeal, respondents challenge the trial court’s Findings of Fact 26(b), 27,
28, 34, 37, 40(c), 41(d), 43(a), and 44, which find that respondents failed to rectify
their housing situation to an extent that Iliana could return to live with them. In
particular, the trial court found the following: “the home in which [respondents] were
living . . . was deemed not suitable for [Iliana]”; the home was “deemed unsuitable for
the children”; “the issues of . . . safe . . . housing are still present”; “[respondents]
continue to reside . . . in a two-bedroom single wide trailer that has holes in the floor
that were recently covered with plywood . . . and that has not otherwise been
maintained”; “the housing conditions of [respondents] . . . was not safe and
appropriate for [Iliana]. Any improvements made between the beginning of this
hearing and its conclusion are not indicative of the day-to-day condition of the
12
IN RE I.K.
Murphy, J., dissenting
home[]”; “[t]he issues that led to removal of custody, to wit, . . . housing, have not been
resolved[]”; “[respondents] continue to reside . . . [in a] home [that] is not appropriate
at this time for placement of [Iliana]”; “[respondents] are not making adequate
progress [and] . . . have not resolved the issues of . . . instable housing that led to
removal of custody[]”; and “[t]he best plan of care to achieve a safe, permanent home
for [Iliana] within a reasonable period of time is . . . to [place Iliana with] maternal
grandmother.”
Jordan Houchins (“Houchins”), an investigator with Rockingham County Child
Protective Services, testified that, in the spring of 2018, he visited Isaac’s mother’s
home, where respondents lived, and observed clutter “piled up literally to the ceiling.”
Houchins also observed structural issues with the floors of the small trailer. When
Houchins visited the trailer again in December 2018, the same issues remained.
Isaac’s mother told Houchins a child could sleep on the pull-out couch in the living
room if Iliana lived in the trailer, as a child already lived in the trailer with her, Patty,
and Isaac. Houchins testified, consistent with the Adjudication Court Report, that
he had concern about young children living in a small trailer in that condition.
Houchins noted that a child currently resided at the trailer, but expressed concern
with another child coming to live at the trailer, in light of the trailer’s size, clutter,
condition of the floors, and Isaac’s mother’s health and mobility difficulties.
However, competent evidence did not support the findings of fact concerning
respondents’ current housing situation. I disagree with the Majority’s analysis of this
13
IN RE I.K.
Murphy, J., dissenting
issue, particularly its view that we would usurp the trial court’s role in making a
credibility determination between conflicting evidence by contravening the finding of
unsafe day-to-day housing conditions in light of the photographs provided by
respondents showing their housing situation had clearly changed. The trial court did
not merely consider evidence that, in October 2017, respondents’ housing situation
had somewhat stabilized, or that “Rockingham County DSS [] visited [Isaac’s
mother’s] home . . . and determined that it [met] minimum standards.” Importantly,
respondents provided pictures of floor reinforcements to that home at the 18 January
2019 hearing. Specifically, pictures 2, 7, 8, 10, 11, and 12 show sheets of plywood on
the floor and are evidence that respondents improved the floors of the residence to
improve the flooring problems described by Houchins. Pictures 1-9 show two
bedrooms, a dining room, and a kitchen; each space is small and cluttered, but space
is visible on the floors, beds, dresser, counter tops, table, and stove. These pictures
contradicted the trial court’s finding concerning “the day-to-day condition of the
home,” particularly that respondents resided in “housing conditions . . . not safe and
appropriate for [Iliana],” as well as the conclusions that the “extremely cluttered . . .
ho[a]rding” observed in the spring of 2018 and on 12 December 2018 and lack of space
in the trailer continued. The pictures respondents provided of floor reinforcements
at the 18 January 2019 hearing contradicted the trial court’s finding that “the day-
to-day condition of the home” continued to be unsafe, as the pictures did not show the
holes in the floor, the hoarding observed in the spring of 2018 and 12 December 2018,
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IN RE I.K.
Murphy, J., dissenting
or the continuation of a lack of space in the trailer. These pictures provided objective
proof of a change in circumstance as to respondents’ housing, making the trial court’s
finding of fact incorrect. Instead of a credibility determination weighing the
believability of contradictory evidence, the trial court’s finding regarding
respondents’ housing situation disregarded objective facts established by
photographic evidence.
Competent evidence did not support the trial court’s findings that respondents’
housing situation continued to be unsafe and too small for Iliana, which the trial court
used to support its finding that respondents acted inconsistently with their
constitutionally protected status as parents. In light of that lack of competent
evidence to support the trial court’s findings regarding respondents’ housing, I would
set aside Findings of Fact 26(b), 27, 28, 34, 37, 40(c), 41(d), 43(a), and 44 to the extent
they find respondents had failed to rectify their housing situation to an extent that
Iliana could not return to live with them.
2. Domestic Violence
On appeal, respondents challenge the trial court’s Findings of Fact 26(c), 28,
30, 40, 41(b), and 44, which find that respondents had failed to rectify their issues
with domestic violence to an extent that Iliana could return to live with them. In
particular, the trial court found the following: “[respondents] continue to engage in
domestic violence . . . despite their completion of treatment and classes[]”; “the issues
of . . . domestic violence . . . are still present [with respondents] despite numerous
15
IN RE I.K.
Murphy, J., dissenting
services that have been offered to the family[]”; “[t]here has not been another
identified domestic violence incident between [respondents], however there has been
domestic violence in the home between [Isaac] and his mother”; “[t]he issues that led
to removal of custody, to wit, . . . domestic violence, . . . have not been resolved[]”;
“[respondents] have been involved with the Department since October 2015 due to
concerns about . . . domestic violence, . . . and . . . the same issues . . . remain
unresolved in 2019[]”; and “[t]he best plan of care to achieve a safe, permanent home
for [Iliana] within a reasonable period of time is . . . to [place Iliana with] maternal
grandmother.”
Emily Wise (“Wise”), the DSS “assigned social worker for [Iliana,]” testified
concerning respondents’ history of domestic violence, which she also detailed in the
Adjudication Court Report. In particular, Isaac was convicted of misdemeanor
assault on a female as a result of an incident between Patty and him in October 2016.
Wise also testified, to her knowledge, no additional domestic violence incidents had
occurred between respondents since October 2016. She testified that police had been
called to a domestic disturbance at Isaac’s mother’s house on 23 August 2018. Isaac
testified that he was yelling at his mother during the incident, and Isaac’s mother
“reported it had been a family disagreement.” “There were no criminal charges
related to” the 23 August 2018 incident.
Competent evidence did not support the trial court’s findings of fact concerning
respondents’ issues with domestic violence listed above. No known additional
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IN RE I.K.
Murphy, J., dissenting
domestic violence incidents have occurred between respondents since October 2016.
While the trial court found that domestic violence has occurred between Isaac and
his mother in the home respondents live in, the evidence in the Record does not
support that violence actually occurred. In fact, the only evidence before the court
described the incident as an argument, not as a violent or physical confrontation. I
would not speculate about the hyperbolic statements in a 911 call log that Isaac was
“‘tearing up’ the [trailer]” during this argument, particularly when no charges arose
from the incident. Further, the trial court considered evidence that Patty regularly
participated in counseling regarding domestic violence, and Isaac engaged in a
perpetrator-related domestic violence program.
The evidence does not support the trial court’s Findings of Fact that
“[respondents] continue to engage in domestic violence,” “the issues of . . . domestic
violence . . . are still present [with respondents],” “there has been domestic violence
in the home between [Isaac] and his mother” since 2017, or that respondents’ issues
with domestic violence remain unresolved. I agree with the Majority that the trial
court’s findings regarding Patty and domestic violence were erroneous, but disagree
with its characterization of the evidence regarding Isaac and domestic violence.
Competent evidence did not support the trial court’s findings that respondents have
not resolved their issues with domestic violence, which the trial court used to support
Finding of Fact 26 that respondents acted inconsistently with their constitutionally
protected status as parents. In light of that lack of competent evidence to support the
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IN RE I.K.
Murphy, J., dissenting
trial court’s findings regarding respondents and domestic violence, I would set aside
Findings of Fact 26(c), 28, 30, 40, 41(b), and 44 to the extent they find respondents
had failed to rectify their issues with domestic violence to an extent that Iliana could
not return to live with them.
3. Drug Abuse
On appeal, respondents challenge the trial court’s Findings of Fact 26(c), 28,
40(c), 41(b), 41(c), 43(a), and 44, which find that Patty and Isaac had failed to rectify
their issues with drug abuse to an extent that Iliana could return to live with them.
In particular, the trial court found the following: “[Patty and Isaac] continue to
engage in . . . illegal drug use despite their completion of treatment and classes[]”;
“the issues of substance use . . . and safe, substance-free housing are still present
despite numerous services that have been offered to the family”; “[t]he issues that led
to removal of custody, to wit, substance abuse . . . have not been resolved[]”; “[Patty
and Isaac] have been involved with the Department since October 2015 due to
concerns about substance use, . . . and . . . the same issues [] remain unresolved in
2019[]”; “[Patty and Isaac] continue to use marijuana despite substance abuse
treatment. [Patty] has sought prescription painkillers from her mother on more than
one occasion while [Iliana] has been placed out of the home[]”; “[Patty and Isaac] are
not making adequate progress . . . [and] have not resolved the issue[] of substance
abuse . . . that led to removal of custody[]”; and “[t]he best plan of care to achieve a
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IN RE I.K.
Murphy, J., dissenting
safe, permanent home for [Iliana] within a reasonable period of time is . . . to [place
Iliana with] maternal grandmother.”
The trial court considered evidence that respondents completed substance
abuse treatment on 16 March 2018. Wise testified that respondents provided hair
follicles for a drug screen, and the screen of both respondents on 4 September 2018
indicated marijuana use. The trial court was also presented with evidence of Patty’s
continued drug seeking behavior after the 7 November 2017 Permanency Planning
Order.
Wise testified that Patty had engaged in drug seeking behavior after the
appeal and remand of the 7 November 2017 Order; specifically, Patty texted “her
mother[] requesting pain medications on several occasions,” including a text message
asking “Do you have a couple of pills I can get?” on 10 June 2018, as well as a text
message on 10 August 2018 requesting pain medication. Patty’s drug seeking
behavior is supportive of the trial court’s findings of Patty’s continued drug use. Since
competent evidence supported the trial court’s findings that Patty continued to abuse
drugs, I agree with the Majority and would not set aside the challenged findings
concerning Patty’s issues with drug abuse.
However, the Record does not contain such evidence of continued drug seeking
behavior as related to Isaac. Unlike evidence of Patty’s continued drug seeking
behavior after the appeal and remand of the 7 November 2017 Order, the only
evidence since February 2017 of Isaac participating in drug use is a hair follicle
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IN RE I.K.
Murphy, J., dissenting
sample from 4 September 2018 indicating marijuana use. The Majority also mentions
a text message exchange between respondents about marijuana on 4 April 2018, which
did not constitute the same drug seeking behavior as Patty in her text messages to
other individuals asking for drugs. The trial court was not presented with any other
evidence showing Isaac’s participation in drugs, or drug abuse, since February 2017,
other than the 4 September 2018 test. Competent evidence did not support the trial
court’s findings that Isaac continued to abuse drugs, which the trial court used to
support its finding that Isaac acted inconsistently with his constitutionally protected
status as Iliana’s parent. In light of that lack of competent evidence to support the
trial court’s findings regarding Isaac and continued drug abuse, I would set aside
findings 26(c), 28, 40(c), 41(b), 41(c), 43(a), and 44 to the extent they find Isaac had
failed to rectify his issues with drug abuse to an extent that Iliana could not return
to live with him. Additionally, to the extent Finding of Fact 26 relied on findings that
Isaac had failed to rectify his issues with housing, domestic violence, and drug abuse,
I would set aside that Finding of Fact that Isaac had acted inconsistently with his
constitutionally protected right to parent Iliana.
E. Challenged Conclusion of Law 6
The trial court relied on the unsupported portions of Findings of Fact 26(b),
26(c), 27, 28, 30, 34, 37, 40, 41(b), 41(c), 41(d), 43(a), and 44 regarding respondents’
housing, domestic violence, and drug abuse to support its Conclusion of Law 6 that
respondents acted inconsistently with their constitutionally protected right to parent
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IN RE I.K.
Murphy, J., dissenting
Iliana. See In re A.C., 247 N.C. App. at 535, 786 S.E.2d at 735. Specifically, I would
review whether the remaining findings of fact support Conclusion of Law 6 in light of
my previous analysis that competent evidence only supported the trial court’s
findings that Patty continued to abuse drugs. See In re A.A.S., 258 N.C. App. 422,
429, 812 S.E.2d 875, 881 (2018); see also In re A.B., 239 N.C. App. 157, 160, 768 S.E.2d
573, 575 (2015).
Clear and convincing evidence of Patty’s continued drug seeking behavior
supported the trial court’s Conclusion of Law 6 that Patty acted inconsistently with
her constitutionally protected right to parent Iliana. Patty’s text messages to her
mother seeking drugs were clear and convincing evidence that supported Conclusion
of Law 6. However, the same conclusion does not necessarily follow for Isaac. Unlike
evidence in the Record of Patty’s continued drug seeking behavior when she texted
her mother seeking drugs, the Record only contains evidence of one instance since
February 2017 linking Isaac to participating in marijuana use, aside from his text
message exchange about marijuana with Patty.
Evidence that respondents participated in efforts to correct the issues that led
to Iliana’s removal from their home regarding domestic violence, sobriety, and
housing stability, and maintained involvement with Iliana, does not support the trial
court’s Conclusion of Law 6. Competent evidence did not support findings that Isaac
“continue[s] to engage in . . . illegal drug use,” particularly since a marked lack of
evidence exists in the Record concerning continued drug seeking behavior by Isaac.
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IN RE I.K.
Murphy, J., dissenting
Limited marijuana usage, without more, is not conduct inconsistent with one’s
constitutionally protected parental rights. Since “[t]he clear and convincing standard
requires evidence that should fully convince,” In re A.C., 247 N.C. App. at 533, 786
S.E.2d at 734, and the Record lacks evidence that fully convinces or supports
Conclusion of Law 6, the trial court erred in concluding that Isaac acted
inconsistently with his parental rights. Finding of Fact 26 that Isaac acted
inconsistently with his parental rights is not supported by competent evidence,
should be set aside, and does not support the trial court’s Conclusion of Law 6 that
Isaac acted inconsistently with his parental rights.
Competent evidence of Patty’s continued drug seeking behavior supported the
trial court’s findings regarding Patty’s drug abuse, including Finding of Fact 26 that
Patty acted inconsistently with her constitutionally protected right to parent Iliana.
These findings supported Conclusion of Law 6 that Patty acted inconsistently with
her constitutionally protected right to parent Iliana. Accordingly, I concur with the
Majority that we should affirm the trial court’s ruling as to Patty.
However, the Record does not contain competent evidence supporting the trial
court’s findings that Isaac’s housing situation, domestic violence, or drug abuse
prevented Iliana from returning to live with him. In particular, Finding of Fact 26
that Isaac acted inconsistently with his constitutionally protected right to parent
Iliana was unsupported by competent evidence, and the findings did not support
Conclusion of Law 6. I acknowledge that further findings would be necessary on
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IN RE I.K.
Murphy, J., dissenting
remand concerning Iliana’s placement with Isaac, as Patty resides with Isaac and
continues to exhibit drug seeking behavior.
CONCLUSION
The trial court’s Finding of Fact 26 and Conclusion of Law 6 concerning Patty
acting inconsistently with her constitutionally protected right to parent the minor
child were not erroneous, as the Record contained competent evidence of Patty’s
continued drug use, and the findings concerning continued drug use supported
Conclusion of Law 6.
However, the trial court’s Finding of Fact 26 and Conclusion of Law 6
concerning Isaac acting inconsistently with his constitutionally protected right to
parent the minor child were erroneous, as the Record did not contain competent
evidence of Isaac’s continued drug use to the extent inconsistent with his
constitutional rights to parent his child, domestic violence, or unsafe housing
conditions, and the findings did not support Conclusion of Law 6.
The trial court did not abuse its discretion in its visitation order concerning
Patty, as the Order complied with the requirements of N.C.G.S. § 7B-905.1(c).
Unlike the Majority, I would remand this matter for further findings
concerning Iliana’s placement with Isaac without placing her with Patty.
Accordingly, I respectfully dissent.
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