In re: R.J.P. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-407
No. COA21-796
Filed 21 June 2022
Alamance County, No. 20 JA 88
IN RE: R.J.P.
Appeal by Respondent-Mother from orders entered 17 September 2021 by
Judge Kathryn W. Overby in Alamance County District Court. Heard in the Court
of Appeals 10 May 2022.
Jamie L. Hamlett, for Alamance County Department of Social Services,
Petitioner-Appellee.
Parker Poe Adams & Bernstein LLP, by Adam C. Setzer, for Guardian ad
Litem.
Anné C. Wright, for Mother-Appellant.
WOOD, Judge.
¶1 Respondent-Mother (“Mother”) appeals from the trial court’s orders granting
guardianship of her son Ryan1 to his paternal great aunt and uncle, Maria and Jordan
1 A pseudonym is used to protect the identity of the minor child. See N.C.R. App. P.
42(b).
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Turner (the “Turners”)2, and granting visitation rights with Ryan to his maternal
grandparents, Elly and Charles Palmer (the “Palmers”)3. On appeal, Mother argues
the trial court abused its discretion by 1) denying her visitation with Ryan, and 2) not
granting co-guardianship of Ryan to the Turners and Palmers. After a careful review
of the record and applicable law, we affirm in part the orders of the trial court and
remand in part for an appropriate visitation plan.
I. Factual and Procedural Background
¶2 Mother and Father began a romantic relationship, and together, the couple
had Ryan on July 22, 2014. In 2014, the Alamance County Department of Social
Services (“DSS”) received a report of a domestic violence incident between Mother
and Father while Ryan was present. During the investigation, DSS became
concerned Father was “aggressive in his behaviors towards . . . Mother[.]” DSS was
also concerned both parties were engaging in substance abuse. Ultimately, DSS
closed the case as Services Recommended when Mother voluntarily returned to a
residential treatment program. DSS recommended Mother “complete the full
treatment program; seek counseling for domestic violence; and have no further
contact with Respondent Father.”
2 Pseudonyms are used to protect the identity of the minor child. See N.C.R. App. P.
42(b).
3 Pseudonyms are used to protect the identity of the minor child. See N.C.R. App. P.
42(b).
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¶3 Approximately three years later, DSS received another report concerning
Ryan. The report alleged Ryan was injured during an automobile accident that
occurred because Mother was driving while under the influence of cocaine, marijuana,
amphetamines, opiates, and benzos. Mother drove off of a bridge, landing in the
water below. Ryan and Mother were able to climb up to safety, but Ryan “suffered a
skull fracture, hematoma to the forehead and abrasion to the left upper shoulder.”
¶4 In response to this report, DSS found the family to be in need of services and
transferred the case to In-Home Services in New Hanover County on August 11, 2017.
On August 23, 2017, the New Hanover County Department of Social Services
(“NHCDSS”) received a report regarding Ryan. This report alleged Mother was
driving under the influence with Ryan in the car and was giving Ryan Benadryl to
make him sleep. A few days later, NHCDSS created an initial plan for Mother to
receive Substance Abuse and Mental Health treatment and for Ryan to begin
receiving therapy services.
¶5 On October 27, 2017, Father notified NHCDSS he was concerned about
Mother’s behaviors. When NHCDSS spoke with Mother, she admitted to have been
using cocaine, heroin, and Percocet in Ryan’s presence. Four days later, Mother and
Father decided to place Ryan with the Palmers. On November 28, 2017, Mother also
moved into the Palmer’s home. NHCDSS verified the move the next day, and the In-
Home Services case was then transferred back to Alamance County. On August 16,
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2018, NHCDSS closed its In-Home Services case.
¶6 Eight days later, Alamance County DSS received another report concerning
Ryan. This report alleged Mother was under the influence of methamphetamines
and driving with Ryan in the vehicle. The report also alleged Mother had assaulted
Elly Palmer while Ryan was present. As a result, a safety plan was developed and a
50-B domestic violence protective order was granted against Mother. Meanwhile,
Ryan continued to live with the Palmers. After the 50-B protective order expired,
Mother moved back in with Elly Palmer. Shortly thereafter, DSS closed the case with
services recommended for mental health and substance abuse treatment.
¶7 On February 18, 2020, DSS received a new report regarding Ryan. This report
alleged Mother was acting erratic, “off her rocker[,]” and was tearing up the house.
Both Father and Ryan were present during this incident. Because of Mother’s
behavior, Father and Ryan were forced to vacate the house and “did not have a place
to stay.” The report further alleged DSS had concerns Ryan may have neurological
problems but that Mother and Father continued to deny or minimize any potential
mental health needs Ryan may have.
¶8 On April 20, 2020, DSS determined the family was in need of services and
transferred the case to In-Home Services to address 1) Mother’s and Father’s mental
health needs and substance abuse, 2) continuing relationship discord between the
parties, and 3) Ryan’s mental health needs. Sometime afterwards, Father moved to
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Wilmington, North Carolina.
¶9 On May 5, 2020, the Alamance County Sheriff’s Office received a call about a
suspicious person walking in the road, staggering, and flashing a flash light outside
of the power plant in Graham, North Carolina. Deputy Stone responded to the scene
and observed Father staggering and holding a flashlight. Deputy Stone transported
Father back to the couple’s residence. On the way, Father told Deputy Stone there
was a shotgun inside the residence and that Mother was a felon. Upon arrival,
Deputy Stone received consent to search the residence and discovered on the floor of
the residence an un-locked, loaded shotgun within Ryan’s access. Corporal T. Ray
and Detective Wood also responded to the residence. Mother was arrested
subsequent to the search and charged with possession of a weapon by a felon and
child abuse. DSS received a report of this incident the following day and promptly
conducted a pre-petition child family team meeting. There, it was agreed Ryan would
stay with the Turners. Due to incarceration and the short notice of the meeting,
Mother was not present at the meeting.
¶ 10 On May 7, 2020, DSS filed a juvenile petition alleging Ryan to be a neglected
juvenile. The trial court entered a nonsecure custody order the same day, placing
Ryan with the Turners. The trial court held two additional hearings regarding
nonsecure custody of Ryan that same month. Mother remained incarcerated at the
time of each hearing. After these hearings, the trial court entered orders continuing
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Ryan’s placement with the Turners. In each order, the trial court found “[t]hat it is
not in the best interest of the juvenile to have visitation/contact with Respondent
Mother due to her current incarceration.”
¶ 11 On July 15, 2020, the trial court conducted an adjudication and disposition
hearing. Mother remained incarcerated as of the date of this hearing. By order
entered August 4, 2020, the trial court adjudicated Ryan a neglected juvenile and
continued his placement with the Turners. The order also contained the following
relevant decrees:
7. That at this time, it is not in the juvenile’s best interest
to have visitation with the Mother due to her current
incarceration. However, she may write letters and send
them to the social worker to review and provide to the
juvenile.
8. That . . . [Mother] may call between 1:00 p.m. – 3:00 p.m.
twice a week. . . . [Mother] will be responsible for the cost
of telephone calls. Discussion must be age appropriate.
Phone contact must be supervised by the . . . [Turners] at a
high level of supervision (eyes and ears on). If child gets
distressed or upset, the . . . [Turners] can discontinue the
telephone calls.
9. That no discussions of the case should take place with
. . . [Ryan]. That if the phone calls are negatively
impacting the juvenile’s mental health, the calls will no
longer be permitted.
¶ 12 Thereafter, Mother was released from incarceration. Meanwhile, Ryan
continued to reside with the Turners. Maria Turner stated Ryan was “doing better”
at his placement, “learning what ‘no’ means[]”; however, “some days are more difficult
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than others in regards to his defiance, but he is adjusting well . . . .”
¶ 13 On October 6, 2020, the trial court entered a review and permanency planning
order. The trial court found that Ryan had been diagnosed with “ADHD, Generalized
Anxiety Disorder, Oppositional Defiance Disorder and Post-Traumatic Stress
Disorder.” The trial court continued Ryan’s placement with the Turners, ordered a
primary plan of reunification with a secondary plan of guardianship, and granted
Mother one hour of supervised visitation per week. The Palmers also were granted
“unsupervised visitation, to include overnight, and the first and third weekend . . . of
the month from 6:00 p.m. on Friday until 6:00 p.m. on Sundays.”
¶ 14 On December 23, 2020, the trial court entered another review and permanency
planning order that continued Ryan’s placement with the Turners, granted the
Palmers unsupervised visitations every first and third weekend of each month, and
granted Mother one hour of supervised visitation per week. A few months later, DSS
filed a report with the trial court stating that Ryan “appears well bonded to each of
his parents and his placement providers.” Ryan told DSS he enjoyed spending time
with Elly Palmer and his parents but, at other times, also stated he does not want to
go on the weekend visits to the Palmers’ residence.
¶ 15 On June 28, 2021, the trial court entered a review and permanency planning
order changing Ryan’s primary plan to guardianship with a secondary plan of
reunification. Another review hearing was scheduled for July 28, 2021 but continued
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until August 11, 2021, and DSS and the guardian ad litem filed reports with the trial
court on August 11, 2021. DSS reported Ryan stated he “wants to live with his dad
or the . . . [Turners] and does not wish to live with . . . [Elly Palmer].” Ryan had,
occasionally, refused to visit Mrs. Palmer’s residence; however, a DSS social worker
observed that Ryan seems to enjoy his visits when he did attend. Elly Palmer
informed DSS that she was “on disability due to Clinical Depression” and “takes
medication to assist with her depression but feels that she won’t be sad anymore if
. . . [Ryan] comes to live with her, as it will give her ‘something to do.’ ” The DSS
report further detailed various instances during which the Palmers and Turners
experienced discord regarding Ryan’s visitation, rearing, and transitioning between
the Palmers’ and Turners’ residences. Notwithstanding, DSS and the guardian ad
litem both recommended in their reports that the trial court appoint the Palmers and
the Turners co-guardians of Ryan.
¶ 16 On August 11, 2021, the trial court held a review and permanency planning
hearing. At the time of this hearing, Mother remained incarcerated with a projected
release date of November 22, 2021. Ms. Lambert, the supervising social worker,
testified at the hearing that there was a lot of animosity between the Palmers and
Turners. She reported that the day prior, another social worker spoke with Elly
Palmer to review DSS’s recommendation of the Palmers’ and Turners’ co-guardship
of Ryan. According to Ms. Lambert, when Elly Palmer heard this recommendation,
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she became “very upset” and stated DSS “was being inappropriate, that this was the
wrong statements.” Elly Palmer further told the social worker “we’ll just have to pray
for them to die” so that she could acquire sole guardianship of Ryan. When the social
worker told Elly Palmer these were inappropriate statements, she responded by
laughing. Ms. Lambert explained, DSS was “very concerned that was, first of all, an
inappropriate response. We were also concerned that maybe there was some
emotional instability there, and then, finally, we were concerned that was a very
strong indicator that they would not be able to work together as co-parents.” Ms.
Lambert reported DSS’s recommendation changed from the Palmers and Turners
having co-guardianship of Ryan to granting the Turners sole guardianship of Ryan.
The guardian ad litem agreed with the change in recommendation.
¶ 17 The trial court entered a permanency planning order on September 17, 2021,
decreeing,
1. That legal and physical guardianship, in accordance
with N.C.G.S. § 7B-600, of . . . [Ryan] is granted to . . .
[Maria and Jordan Turner].
...
3. That . . . [Ryan] will primarily reside with the . . .
[Turners] with visitation with the . . . [Palmers] every other
weekend.
...
20. That, at this time, due to . . . [Mother’s] incarceration,
visitation is contrary to the best interest, health and safety
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of the juvenile. That . . . [Mother] may send cards, letters
and other forms of written communication to the juvenile
through Mr. . . . [Turner]. That . . . [Mother] is permitted
to have a minimum of one telephone call a week with the
juvenile that is to be highly supervised by his placement
provider. That . . . [Mother] is responsible for cost
associated with such communication. These calls shall be
at reasonable times not past 9:00 p.m. or before 8:00 a.m.
That the phone calls shall not unduly disrupt the juvenile’s
daily schedule. That all communication shall be age
appropriate and the mother shall not make promises to the
juvenile.
21. That during periods of their incarceration, it would not
be in the best interest for the juvenile to participate in
visitations with the parents due to the limitation of jail
visits and current COVID concerns.
The same day, the trial court issued a guardianship short order granting
guardianship of Ryan to the Turners. The guardianship short order, likewise,
granted guardianship of Ryan to the Turners and allowed the Turners to “disclose
this order to third parties in order to show their legal authority over the minor child
or otherwise promote and protect the best interests of the minor child[] . . . .” Mother
filed a timely notice of appeal from both of these orders.4
II. Standard of Review
¶ 18 This Court reviews a permanency planning order to determine “whether there
is competent evidence in the record to support the findings and the findings support
4 Father did not appeal these orders.
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the conclusions of law.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161
(2004) (citing In re Eckard, 148 N.C. App. 541, 544, 559 S.E.2d 233, 235 (2002)). The
trial court’s findings of fact are conclusive on appeal if they are supported by
competent evidence. In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991);
see In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161; In re Weiler, 158 N.C. App.
473, 477, 581 S.E.2d 134, 137 (2003). Whether the trial court’s findings of fact support
its conclusions of law is reviewed de novo. In re A.S., 275 N.C. App. 506, 509, 853
S.E.2d 908, 911 (2020).
¶ 19 “In choosing an appropriate permanent plan . . . the juvenile’s best interests
are paramount.” In re J.H., 244 N.C. App. 255, 269, 780 S.E.2d 228, 238 (2015); see
In re L.G., 274 N.C. App. 292, 297, 851 S.E.2d 681, 685 (2020) (“The purpose of a
permanency planning hearing is to identify the best permanent plans to achieve a
safe, permanent home for the juvenile consistent with the juvenile’s best interest.”
(internal quotation marks omitted)). Although “[w]e review a trial court’s
determination as to the best interest of the child for an abuse of discretion[,]” In re
J.H., 244 N.C. App. at 269, 780 S.E.2d at 238 (quoting In re D.S.A., 181 N.C. App.
715, 720, 641 S.E.2d 18, 22 (2007)), we have also held the best interest determination
is a conclusion of law and thus subject to a de novo standard of review. In re Helms,
127 N.C. App. 505, 510-11, 491 S.E.2d 672, 675-76 (1997).
¶ 20 A trial court’s order regarding visitation rights is reviewed for an abuse of
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discretion. In re C.M., 273 N.C. App. 427, 432, 848 S.E.2d 749, 753 (2020); see In re
I.K., 273 N.C. App. 37, 49, 848 S.E.2d 13, 23 (2020), aff’d, 377 N.C. 417, 2021-NCSC-
60. “A trial court may be reversed for abuse of discretion only upon a showing that
its actions are manifestly unsupported by reason or upon a showing that the trial
court’s decision was so arbitrary that it could not have been the result of a reasoned
decision.” In re C.M., 273 N.C. App. at 432, 848 S.E.2d at 753 (cleaned up) (quoting
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
III. Discussion
¶ 21 Mother raises several issues on appeal; each will be addressed in turn.
A. Guardianship
¶ 22 Initially, Mother contends the trial court abused its discretion by determining
it was in Ryan’s best interest to appoint the Turners as his sole guardians. We
disagree.
1. Findings of Fact
¶ 23 Mother first argues finding of fact number 106 is not supported by clear and
convincing evidence. This finding states, Ms. Palmer “is not a safe and appropriate
person to have fulltime care and/or decision-making responsibility over the juvenile.”
At the hearing, Ms. Lambert testified as to Ms. Palmer’s reaction and comments after
being notified of DSS’s recommendation for co-guardianship. “She made statements
. . . that the Department was being inappropriate, that this was the wrong
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statements.” Ms. Lambert further testified Ms. Palmer “also made statements that
the . . . [Turners] were old and idiots, and . . . we’ll just have to pray for them to die
so that she can get . . . [Ryan].” Ms. Lambert explained DSS was “very concerned
that was, first of all, an inappropriate response. We were also concerned that maybe
there was some emotional instability there, and then, finally, we were concerned that
that was a very strong indicator that they would not be able to work together as co-
parents.”
¶ 24 The trial court made the following unchallenged findings of fact relevant to
finding of fact number 106:
48. . . . [Mrs. Turner] has shared that when . . . [Ryan] was
around two years old, she was changing his diaper and
Mrs. . . . [Palmer] was at her home and came over and
placed her hand over his mouth and nose when he was
wiggling around. There is no documentation of this
concern being shared with law enforcement or CPS at the
time of the incident.
...
50. Recently[] . . . [Ryan] refused to go to Mrs. . . .
[Palmer’s] home and did not visit during the week of July
10. It was reported that during the recent attempted
transition, . . . [Ryan] refused to go to Mrs. . . . [Palmer’s]
home and ran around the house, having the adults chase
him. Both parties had varying views of the events that took
place, but both maintain that . . . [Ryan] refused to go with
the . . . [Palmers] and remained at the . . . [Turner’s] home.
Mrs. . . . [Palmer] stated that Mrs. . . . [Turner] yelled at
her that . . . [Ryan] was not going with her. Mrs. . . .
[Turner] reported that Mrs. . . . [Palmer] was pulling . . .
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[Ryan] and trying to physically force him to go with her.
...
60. On July 22, 2021, SW observed . . . [Ryan’s] transition
back to the . . . [Turner’s] home. When Mrs. . . . [Palmer]
exited the car, Mrs. . . . [Palmer] stated to SW, “early
morning for you”! [sic] SW replied, “I’m just working!”
Mrs. . . . [Palmer] asked SW where she worked. This
interaction was concerning as Mrs. . . . [Palmer] did not
appear to recognize SW, although Mrs. . . . [Palmer] has
met with SW multiple times and talks frequently on the
phone to SW.
...
65. Mrs. . . . [Palmer] informed SW that she was on
disability due to Clinical Depression, stemming from the
loss of her two sons. Mrs. . . . [Palmer] stated that she
takes medication to assist with her depression but feels
that she won’t be sad anymore if . . . [Ryan] comes to live
with her, as it will give her “something to do.” This is an
inappropriate reason for a child to live with someone.
Because none of these findings were challenged by Mother, they are binding on
appeal. Isom v. Duncan, 279 N.C. App. 171, 2021-NCCOA-453, ¶ 1. Therefore, based
upon Ms. Lambert’s testimony at the hearing, along with the additional findings of
fact within the permanency planning order, we conclude competent evidence was
presented to support finding of fact number 106.
¶ 25 To the extent Mother attempts to support her argument finding of fact number
106 is not supported by competent evidence by offering alternative evidence, “[f]acts
found by the judge are binding upon this court if they are supported by any competent
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evidence notwithstanding the fact that the appellant has offered evidence to the
contrary.” Williams v. Williams, 261 N.C. 48, 56, 134 S.E.2d 227, 233 (1964) (first
citing Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960); then citing Briggs v.
Briggs, 234 N.C. 450, 67 S.E.2d 349 (1951)); see Heatzig v. MacLean, 191 N.C. App.
451, 454, 664 S.E.2d 347, 350 (2008). Thus, because we are holding today finding of
fact number 106 is supported by competent evidence, we need not address Mother’s
alternative evidence.
2. Conclusions of Law
¶ 26 Because we hold finding of fact number 106 is supported by competent
evidence, and Mother has not challenged any other finding of fact, we must determine
whether the findings of fact support the trial court’s conclusion of law. Specifically,
Mother contends the trial court’s conclusions of law numbers 20 and 24 are not
supported by “clear, cogent, and convincing evidence.” Conclusion of law number 20
provides, “[t]he current placement is appropriate and in the best interest of the
juvenile.” Similarly, conclusion of law number 24 states, “[t]hat this Order is in the
best interest of the juvenile and consistent with the juvenile’s health and safety.”
¶ 27 Under N.C. Gen. Stat. § 7B-906.1,
[t]he court may maintain the juvenile’s placement under
review or order a different placement, appoint a guardian
of the person for the juvenile pursuant to G.S. 7B-600, or
order any disposition authorized by G.S. 7B-903, including
the authority to place the child in the custody of either
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parent or any relative found by the court to be suitable and
found by the court to be in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-906.1(i) (2021) (emphasis added). “[T]he fundamental principle
underlying North Carolina’s approach to controversies involving child neglect and
custody, to wit, [is] that the best interest of the child is the polar star.” In re
Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984).
¶ 28 As we stated supra, we review a permanency planning order’s conclusions of
law to determine whether they are supported by its findings of fact. In re J.T.S., 268
N.C. App. 61, 67, 834 S.E.2d 637, 642 (2019); In re J.C.S., 164 N.C. App. at 106, 595
S.E.2d at 161. Any unchallenged finding of fact is presumed to be supported by
competent evidence and, thus, binding on appeal. Koufman v. Koufman, 330 N.C. 93,
97, 408 S.E.2d 729, 731 (1991). In addition to the findings of fact stated supra, the
trial court made the following findings of fact:
14. Freddie Omotosho5 testified and verbally amended the
recommendations in the written report to reflect a
recommendation of guardianship to the . . . [Turners] only
and visitation for the . . . [Palmers]. The change in the
recommendation is based [sic] the fact that . . . [Ryan] has
been with the . . . [Turners] for over one year, the . . .
[Turners] were hesitant to take on permanent care of . . .
[Ryan] due to their age but are now willing to provide
longer term care and on Ms. . . . [Palmer’s] inappropriate
reaction to the recommendation that she work with the . . .
[Turners], which makes it unlikely the . . . [Turners and
5 Social Worker Freddie Omotosho was not present at the hearing. Ms. Lambert
supervises Mr. Omotosho and assisted with the preparation of DSS’s report.
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Palmers] would be able to work together for the best
interest of the juvenile.
...
16. The Guardian ad litem testified and orally amended her
recommendations to be in alignment with the revised, oral
recommendations of the social worker.
...
33. . . . [Ryan] has continued to reside in the home of his
paternal relatives, Mr. and Mrs. . . . [Turner], since coming
into care in May 2020.
34. Apart from . . . [Ryan’s] reluctant behavior in visiting
Mrs. . . . [Palmer], the placement providers report no
concerns in the placement home and SW has observed a
loving and warm bond between . . . [Ryan] and the
placement providers.
...
42. SW has been able to observe . . . [Ryan] with his
parents, individually, as well as with the placement
providers during the life of the case. . . . [Ryan] appears
bonded to each of his parents and his placement providers.
43. . . . [Ryan] reports that he enjoys spending time with
his parents and with the placement providers.
44. . . . [Ryan] stated that he wants to live with his dad or
the . . . [Turners] and does not wish to live with Mrs. . . .
[Palmer].
45. Previously, Mrs. . . . [Turner] has stated that given the
ages of her and her husband that they cannot commit to
permanent placement of . . . [Ryan]. More recently, the . . .
[Turners] have stated that they are committed to providing
permanence for . . . [Ryan] and wish to be considered as
legal guardians.
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...
52. During this . . . [Child and Family Team meeting], all
parties were difficult to keep on track and often focused
topics on their indifferences with one another. The
facilitator had to redirect multiple times during the
meeting.
...
58. Mrs. . . . [Palmer] has stated that sometimes . . . [Ryan]
does refuse to come to her home but that after he is there,
they always have a great time.
...
67. In the fall of 2020, Mrs. . . . [Palmer] was struggling
with managing her depression but as of the spring of 2021,
has since become more stable and able to manage her
symptoms more effectively. The Department was able to
review her records and confirm compliance.
...
98. The . . . [Turners] have demonstrated for over one year
the ability to meet the needs of . . . [Ryan], financially,
emotionally and otherwise.
99. The . . . [Turners] express an understanding of the role
and responsibility of guardians and willingness to take on
that role.
100. The . . . [Turners and Palmers] have attempted to
work together but appear to have difficulty with
interactions. This will make it difficult for them to work
together to make decisions in the best interests of the
juvenile.
...
104. When the Department informed Ms. . . . [Palmer]
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about a change in recommendation to grant joint
guardianship, the day prior to this hearing, Ms. . . .
[Palmer] stated that she would just have to pray that the
. . . [Turners] die. There have been some ongoing concerns
about Ms. . . . [Palmer’s] mental health. SW Omotosho
testified, that her actions regarding the recommendation
change appears to be a ‘clear indicator’ that she would not
be able to co-parent with the . . . [Turners] successfully.
¶ 29 We conclude these findings of fact support conclusions of law numbers 20 and
24. Accordingly, we hold the trial court did not abuse its discretion by granting sole
guardianship to the Turners and granting visitation only to the Palmers.
B. Visitation
¶ 30 Mother next contends the trial court abused its discretion in denying her
visitation with Ryan. We agree.
¶ 31 As a general rule, a parent has a “natural” and “legal” right to visit with his or
her child and this should not be disturbed when awarding custody to another unless
the parent’s conduct is such that this right is forfeited, or the exercise of this right
“would be detrimental to the best interest and welfare of the child.” In re Custody of
Stancil, 10 N.C. App. 545, 551, 179 S.E.2d 844, 849 (1971). Thus, when an order
“removes custody of a juvenile from a parent, guardian, or custodian or that continues
the juvenile’s placement outside the home[, the order] shall provide for visitation that
is in the best interests of the juvenile consistent with the juvenile’s health and safety,
including no visitation.” N.C. Gen. Stat. § 7B-905.1(a) (2021) (emphasis added); see
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also Routten v. Routten, 374 N.C. 571, 578, 843 S.E.2d 154, 159 (2020) (“[T]he trial
court must apply the ‘best interest of the child’ standard to determine custody and
visitation questions . . . .”), cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495 (2020); In
re Custody of Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849.
¶ 32 “When the question of visitation rights of a parent arises, the court should
determine from the evidence presented whether the parent by some conduct has
forfeited the right or whether the exercise of the right would be detrimental to the
best interest and welfare of the child.” In re Custody of Council, 10 N.C. App. at 552,
179 S.E.2d at 849. If the trial court does not find the parent’s conduct has forfeited
his or her visitation right, or that such right is detrimental to the child’s welfare and
best interest, it “should safeguard the parent’s visitation rights by a provision in the
order defining and establishing the time, place and conditions under which such
visitation rights may be exercised.” Id.¶ 33 We pause to note Mother, in her brief, specifically challenges finding of fact
number 19, stating “[t]he trial court found that it was contrary to Ryan’s best interest
and inconsistent with his health and safety to have visitation with Mother. (R p 385,
FOF #19). The finding of fact is not supported by clear, cogent, and convincing
evidence.” Our review of the record reveals finding of fact number 19 does not address
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visitation as cited by Mother’s brief.6 Rather, conclusion of law number 19 states,
“[t]hat it is contrary to the best interest of the juvenile and inconsistent with the
juvenile’s health and safety to have visitation with the Respondent Mother.” Thus,
we presume Mother intended to challenge conclusion of law number 19 and, as such,
shall review whether the trial court’s order findings of fact support its conclusion of
law number 19. Accord State v. Holland, 230 N.C. App. 337, 344, 749 S.E.2d 464, 468
(2013)
¶ 34 Here, the trial court found Mother does not remain available to the court, DSS,
and guardian ad litem; is not actively participating in or cooperating with the plan,
DSS, and guardian ad litem; and is “acting in a manner inconsistent with the health
and safety of the juvenile.” It furthered that during the review period, the social
worker “had very limited contact with . . . [Mother] due to her unknown whereabouts
and incarceration[,]” and Mother was “sentenced to 9-20 months for . . . [a] probation
revocation.” Based upon these findings of fact, we conclude conclusion of law number
19 is supported by the findings of fact.
¶ 35 Here, the trial court ordered the following visitation plan between Mother and
Ryan:
Finding of fact number 19 states, “[t]he court has inquired and no one presents
6
information that the juvenile is a Mexican Minor or American Minor as defined in the
Memorandum of Agreement between the Consulate general of Mexico in Raleigh and the
Government of the State of North Carolina.”
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20. That, at this time, due to . . . [Mother’s] incarceration,
visitation is contrary to the best interest, health and safety
of the juvenile. That . . . [Mother] may send cards, letters
and other forms of written communication to the juvenile
through Mrs. . . . [Turner]. That . . . [Mother] is permitted
to have a minimum of one telephone call a week with the
juvenile that is to be highly supervised by his placement
provider. That . . . [Mother] is responsible for cost
associated with such communication. These calls shall be
at reasonable times not past 9:00 p.m. or before 8:00 a.m.
That the phone calls shall not unduly disrupt the juvenile’s
daily schedule. That all communication shall be age
appropriate and the mother shall not make promises to the
juvenile.
21. That during periods of their incarceration, it would not
be in the best interest for the juvenile to participate in
visitations with the parents due to the limitation of jail
visits and current COVID concerns.
Mother does not argue that her visitation should be not suspended while she is
incarcerated; rather, she asserts the trial court made no findings regarding her
visitation rights after she is released from prison. We agree.
¶ 36 Section 7B-905.1 provides the trial court “shall provide for visitation that is in
the best interests of the juvenile . . . .” § 7B-905.1(a)(1). Our General Assembly’s use
of the language “ ‘shall’ is a mandate to trial judges, and that failure to comply with
the statutory mandate is reversible error.” In re Eades, 143 N.C. App. 712, 713, 547
S.E.2d 146, 147 (2001) (citation omitted). Here, the trial court provided no guidance
as to what visitation rights, if any, Mother has with Ryan upon her release from
prison.
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¶ 37 Indeed, the trial court was aware of Mother’s pending release as it found,
Mother “was transferred to the NC Women’s Correctional Institution and anticipated
to be released November 24, 2021.” The permanency planning order was entered
approximately two months prior to November 24, 2021. Because Mother’s release
from prison was imminent, the trial court should have provided for a visitation plan
after her release that was in Ryan’s best interest. We are mindful of that fact that
Mother’s projected release date will have long passed by the date of this opinion.
Therefore, we remand to the trial court for further findings of fact regarding visitation
between Mother and Ryan and an appropriate visitation schedule. In making the
determination regarding an appropriate visitation schedule, the trial court may
conduct a new hearing in order to examine the current circumstances of Ryan and
Mother to determine what schedule is in the best interests of Ryan.
IV. Conclusion
¶ 38 For the foregoing reasons, we affirm the orders of the trial court granting
guardianship to the Turners. However, we remand the September 17, 2021
permanency planning order to the trial court for further findings of fact and a
determination of an appropriate visitation schedule between Mother and Ryan. It is
so ordered.
AFFIRMED IN PART AND REMANDED IN PART.
Judges INMAN and ARROWOOD concur.