In re: A.P. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-29
No. COA21-310
Filed 18 January 2022
Iredell County, No. 19 JA 215
IN THE MATTER OF: A.P.
Appeal by respondent-mother from order entered 16 February 2021 by Judge
Carole A. Hicks in Iredell County District Court. Heard in the Court of Appeals 17
November 2021.
Lauren Vaughan for Petitioner-Appellee Iredell County Department of Social
Services.
Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender J. Lee
Gilliam, for Respondent-Appellant-Mother.
No brief filed for Respondent-Appellee-Father.
Womble Bond Dickinson (US) LLP, by Jessica L. Gorczynski, for Guardian ad
Litem.
CARPENTER, Judge.
¶1 Respondent-Mother appeals from a permanency planning order (the “Order”),
entered on 16 February 2021 following an initial permanency planning hearing. The
Order granted legal and physical custody of the juvenile to Respondent-Father;
ordered two hours of supervised visitation every other weekend to Respondent-
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Mother, allowing Respondent-Father to choose the place and supervisor of visitation;
and waived further review hearings. On appeal, Respondent-Mother argues the
Order was not consistent with her need for reasonable accommodations based on her
intellectual disability, and therefore, violated Title II of the Americans with
Disabilities Act of 1990 (“ADA”) and Section 504 of the Rehabilitation Act of 1973
(“Section 504”). Furthermore, she contends the Order gave Respondent-Father “too
much discretion” over the visitation plan. For the reasons set forth below, we affirm
the Order in part; we vacate and remand the visitation provisions of the Order for the
trial court to enter an appropriate visitation plan.
I. Factual & Procedural Background
¶2 On 19 November 2019, the date of A.P.’s birth, the Iredell County Department
of Social Services (“DSS”) received a report, from the hospital where Respondent-
Mother gave birth, alleging neglect of A.P. on the basis Respondent-Mother has brain
damage due to a past car accident and is unable to care for the newborn infant. On
6 December 2019, DSS filed a juvenile petition alleging A.P. was a neglected juvenile.
The petition alleged Respondent-Mother failed to provide basic care for the infant—
including changing diapers and feeding—even with hands-on assistance from
hospital staff. The petition further alleged Respondent-Mother was under the
guardianship of her paternal aunt, S.L., who had cared for her since she was four
years old and was the payee on Respondent-Mother’s disability benefits. Respondent-
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Mother was reported as being previously diagnosed with “mild mental retardation”
and as having an IQ similar to that associated with a ten-year-old child. The petition
described an emergency assessment held by DSS on 22 November 2019 in which
Respondent-Mother admitted to participating in concerning behaviors including
having unsafe, one-time sexual encounters with men whom she met online and
intentionally killing cats. The assessment also revealed Respondent-Mother was
jealous of the attention A.P. received from S.L., and Respondent-Mother had been
found in her room with a knife explaining she “was going to hurt herself and just
wanted to make everything go away.” The day after the assessment, Respondent-
Mother and A.P. were released from the hospital to the care of S.L. Respondent-
Mother and S.L. signed a safety plan in which Respondent-Mother agreed to be
supervised at all times when with A.P., and S.L. agreed to provide “eyes-on”
supervision.
¶3 On 15 January 2020, a hearing was held for determining whether a guardian
ad litem should be appointed for Respondent-Mother. At the hearing, DSS made an
oral motion to appoint a guardian ad litem in accordance with N.C. Gen. Stat. § 1A-
1, Rule 17 for Respondent-Mother. The trial court found, inter alia, Respondent-
Mother: is incompetent and cannot adequately act in her own interest, waived notice
of the hearing and consented to the appointment of a guardian ad litem for her, is
incompetent within the meaning of N.C. Gen. Stat. § 35A-1101 (2019), and lacks
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capacity due to mental retardation. Accordingly, the trial court appointed a guardian
ad litem for Respondent-Mother.
¶4 On 12 February 2020, pre-adjudication and adjudication hearings were held
before the Honorable Edward L. Hedrick, IV. On the same day, the trial court entered
its adjudication order, making findings of fact by clear and convincing evidence and
concluding A.P. was a neglected juvenile. A dispositional hearing was also held on
12 February 2020. The guardian ad litem for A.P. filed a court report for the
dispositional hearing in which she expressed concerns for A.P. continuing to live with
S.L. and Respondent-Mother. She noted “if [S.L.’s] belittling behavior [toward
Respondent-Mother] continues or escalates, the nexus of [Respondent-Mother’s]
mental deficit, jealousy, and propensity for violence will push [Respondent-Mother]
to the limits of her tolerance and result in harm to [A.P.]”. The guardian ad litem
recommended A.P. be placed with S.L. and a new guardian be found for Respondent-
Mother.
¶5 On 12 February 2020, the trial court entered its dispositional order in which it
found, inter alia, that the primary conditions in the home that led to or contributed
to the juvenile’s adjudication and to the Court’s decision to remove custody of the
juvenile are the Respondent-Mother’s mental health status and her inability to
provide care for the infant juvenile. It further found that placement of A.P. with S.L.
would be in the juvenile’s best interest. The trial court concluded, inter alia, DSS
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made reasonable efforts to reunify and to prevent the need for placement of the
juvenile outside of the juvenile’s own home. The trial court then ordered, inter alia,
Respondent-Mother remedy the conditions in the home that led to or contributed to
the juvenile’s adjudication and to the Court’s decision to remove custody of the
juvenile by: (1) entering into and complying with the terms of a case plan; (2)
cooperating with DSS and the guardian ad litem; (3) signing all releases of
information necessary for DSS and the guardian ad litem to exchange information
with their providers and monitor progress; (4) providing DSS and the guardian ad
litem with a comprehensive list of all living adult relatives; and (5) not living in the
home of A.P. The trial court also ordered legal and physical custody of A.P. to DSS
and supervised visitation to Respondent-Mother for two hours per week.
¶6 On 8 July 2020, a review hearing was held pursuant to N.C. Gen. Stat. § 7B-
906.1(a) (2019). The trial court entered an order the same day, finding, inter alia,
Respondent-Mother had entered but not completed a case plan, and DSS had become
aware of a potential father whom it found to be a potential placement provider for the
juvenile. The trial court then concluded that legal and physical custody of the
juvenile should continue with DSS. While paternity results were pending, the trial
court allowed the putative father (“Respondent-Father”) to have two-hour weekly
unsupervised visits with A.P. and continued supervised visitation for Respondent-
Mother. On 24 July 2020, Respondent-Father confirmed paternity of A.P. and
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entered into a case plan with DSS. DSS held a child and family team meeting on 28
July 2020 and placed A.P. with Respondent-Father and the paternal grandmother.
¶7 On 27 August 2020, Dr. George Popper, Ph.D., P.A., (“Dr. Popper”) performed
a comprehensive psychological evaluation on Respondent-Mother as requested by her
12 March 2020 DSS case plan, which consisted of multiple examinations to determine
her cognitive and academic achievements, social-emotional development, personality,
parenting skills, and mental health status. Respondent-Mother performed
“extremely low” in the areas tested in the cognitive assessment. She received a full-
scale IQ of 53 on the Weschsler Adult Intelligence Scale, Fourth Edition (WAIS-IV),
which falls in the “intellectually disabled – moderate” range. Her test results on her
mental status assessment were consistent with depression and anxiety disorder. In
Dr. Popper’s view, it was “unrealistic for [Respondent-Mother] to assume the role of
full-time parent” because “[s]he has not yet demonstrated she has the skills needed
for self-care, nor has she demonstrated the skills needed to care for a young child.”
Based on the examinations, Dr. Popper recommended Respondent-Mother to: (1)
continue with supervised visits and with her parenting classes and modify visits if
progress is noted; (2) attend individual counseling and possibly seek medication for
her depression and anxiety; (3) train to improve domestic skills; (4) obtain innovation
services; and (5) find a supported work placement or placement in a sheltered
workshop.
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¶8 An initial permanency planning hearing was held on 20 January 2021 before
the Honorable Carole A. Hicks. Social worker Latoya Daniels testified Respondent-
Mother participated in Pharo’s Parenting parent classes and parental coaching
program for at least four months. DSS also offered Respondent-Mother the
opportunity to be placed at the Thelma Smith Foundation, an assisted living facility,
where she could work on “independent skills” and learn how to provide her basic
needs, which she declined.
¶9 Krista McMillan, a foster care supervisor with DSS also testified. According
to Krista McMillan, Respondent-Mother did not want to participate in the services of
the Thelma Smith Foundation although they were offered to her, and DSS set up an
intake appointment. DSS made referrals for Respondent-Mother to receive mental
health treatment at Daymark; Respondent-Mother also declined those services.
Additionally, DSS assisted Respondent-Mother with applying for innovation services,
as recommended by Dr. Popper.
¶ 10 The remainder of the testimony during the permanency planning hearing
focused primarily on Respondent-Mother’s visitation with A.P. According to
Respondent-Father, A.P. had lived with him in the paternal grandmother’s home
since the end of July 2020. Respondent-Father has held consistent employment, has
had no issues providing care for A.P., and feels bonded with A.P. When Respondent-
Father was asked by counsel for DSS if he would be willing to facilitate visits or
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supervise visits for Respondent-Mother, he replied, “I mean, due to the past, I don’t
[sic] willing just because of, you know, prior history. So I kind of stay away from
everything.” Although Respondent-Father confirmed he did not want to supervise
visits for Respondent-Mother himself, he did testify that his mother and other friends
or family would be willing to supervise visits. On cross-examination, Respondent-
Father testified he did not want Respondent-Mother to be part of A.P.’s life due to
allegations she harmed the child, and he did not want Respondent-Mother to have
supervised visits.
¶ 11 On 16 February 2021, the trial court entered the permanency planning Order,
which granted legal and physical custody of A.P. to Respondent-Father and awarded
supervised visitation to Respondent-Mother every other weekend for a minimum of
two hours, giving Respondent-Father discretion to choose the location and supervisor
of the visitation. Respondent-Mother gave timely notice of appeal.
II. Jurisdiction
¶ 12 This Court has jurisdiction to address Respondent-Mother’s appeal from the
Order pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2019) and N.C. Gen. Stat. § 7B-
1001(a)(4) (2019).
III. Issues
¶ 13 The issues before the Court are whether: (1) the trial court’s findings of fact
support its conclusion of law that DSS made reasonable efforts to unify and to
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eliminate the need for placement of the juvenile in light of Respondent-Mother’s
intellectual disability; (2) the trial court’s finding of fact regarding DSS’s reasonable
efforts are supported by competent evidence; (3) the trial court made reasonable
accommodations for Respondent-Mother, consistent with ADA and Section 504
requirements; (4) the trial court erred in allowing A.P.’s father to choose the place
and supervisor of visitation; and (5) the trial court erred in waiving future reviews
and informing all parties of their right to file a motion for review of the ordered
visitation plan given Respondent-Mother’s disability.
IV. Standard of Review
¶ 14 “Appellate review of a permanency planning order is limited to whether there
is competent evidence in the record to support the findings and the findings support
the conclusions of law.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161
(2004) (citation omitted). “The trial court’s findings of fact are conclusive on appeal
if supported by any competent evidence.” In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d
453, 455 (2013) (citation omitted).
V. Permanency Planning Order
¶ 15 On appeal, Respondent-Mother argues DSS failed to make the necessary
accommodations for her under the ADA and Section 504 when making efforts to
reunify and eliminate the need for placement of the juvenile outside the juvenile’s
own home. Specifically, Respondent-Mother asserts she “was entitled to reunification
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services specially tailored to accommodate her intellectual disability.” For the
reasons set forth below, we are unpersuaded by Respondent-Mother’s arguments
relating to the ADA and Section 504.
A. DSS’s Compliance with the ADA and Section 504 when Making
Reasonable Efforts
¶ 16 The parties do not dispute Respondent-Mother has a disability within the
meaning of the ADA and Section 504 and is a qualified individual with a disability
eligible for protection under these statutes.
¶ 17 Section 504 and Title II of the ADA “protect parents and prospective parents
with disabilities from unlawful discrimination in the administration of child welfare
programs, activities, and services.” U.S. Dep’t Health & Human Servs. & U.S. Dep’t
Justice, Protecting the Rights of Parents and Prospective Parents with Disabilities:
Technical Assistance for State and Local Child Welfare Agencies and Courts under
Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation
Act, (Aug. 2015), https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html. The ADA
provides: “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination of any such entity.”
42 U.S.C. § 12132. The ADA defines a “qualified individual with a disability” as
an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, the
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removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services,
meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities
provided by a public entity.
42 U.S.C. § 12131. Likewise, Section 504 provides: “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive agency . . .
.” 29 U.S.C. § 794(a).
1. Sufficiency of Conclusion regarding DSS’s Reasonable Efforts
¶ 18 We first consider whether there are findings of fact to support the trial court’s
conclusion that DSS made reasonable efforts to prevent the need for placement of
A.P. This Court has previously considered ADA protections afforded to parents in
the context of the Juvenile Code. In In re C.M.S., we addressed the issue of whether
the ADA precludes the State from terminating parental rights of an intellectually
disabled parent. 184 N.C. App. 488, 646 S.E.2d 592 (2007). After considering
persuasive authority from other jurisdictions, we held the ADA does not prevent the
State’s termination of parental rights so long as the trial court made its statutorily
required findings to show “the department of social services has made reasonable
efforts to prevent the need for placement of the juvenile.” Id. at 491–93, 646 S.E.2d
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at 594–95; see also N.C. Gen. Stat. § 7B-507(a)(2) (2019). Thus, when a department
of social services, such as DSS in the instant case, satisfies this requirement, it
complies with the ADA’s mandate that individuals with disabilities be reasonably
accommodated. Id. at 492–93, 646 S.E.2d at 595. We noted “Congress enacted the
ADA to eliminate discrimination against people with disabilities and to create causes
of action for qualified people who have faced discrimination. Congress did not intend
to change the obligations imposed by unrelated statutes.” Id. at 492, 646 S.E.2d at
595 (citations omitted).
¶ 19 We find the holding of In re C.M.S. on point in the case sub judice. Id. at 491,
646 S.E.2d at 594; see also In re S.A., 256 N.C. App. 398, 806 S.E.2d 81 (2017)
(unpublished) (rejecting a respondent-parent’s argument that the trial court ignored
the requirements of the ADA and Section 504 when it awarded custody of the juvenile
to the child’s father because the trial court made the proper findings under N.C. Gen.
Stat. § 7B-507(a)(2) in its permanency planning order). Because the trial court in
this case concluded “DSS has made reasonable efforts to reunify and to eliminate the
need for placement of the juvenile,” it necessarily complied with the ADA’s directive
that a parent not be “excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program.” See In re C.M.S., 184 N.C. App.
at 492–93, 646 S.E.2d at 595; see also 42 U.S.C. § 12132. Additionally, we find this
conclusion of law is supported by findings of fact 5, 6, and 8, which state:
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5. [DSS] made reasonable efforts to reunify and to
eliminate the need for placement of the juvenile
outside of the juvenile’s own home. Said efforts are
as described in the social worker’s report and prior
court orders.
6. DSS has made reasonable efforts to identify an
appropriate permanent plan for the juvenile. Said
efforts are as described in the social worker’s report
and the prior court orders. DSS initiated DNA
testing to determine paternity in this matter;
approved [Respondent-Father’s] home for
placement; monitored [Respondent-Father’s] trial
home placement; made referrals for [Respondent-
Mother] to complete her case; attempted to engage
[Respondent-Mother] in services specifically
recommended in the Parenting Assessment by Dr.
Popper; attempted to monitor [Respondent-
Mother’s] compliance with her case plan and
progress on completing the objectives in the
Parenting Assessment.
....
8. DSS attempted to enroll [Respondent-Mother] at the
Thelma Smith Foundation in Salisbury to no avail.
The Thelma Smith Foundation would provide
training in domestic skills, help [Respondent-
Mother] with transportation and employment, and
provide [Respondent-Mother] with some level of
independence. [Respondent-Mother] has continued
to attend parenting classes and have her visits
supervised by parenting skills teachers, yet she still
is unable to consistently and properly change the
juvenile’s diaper and feed him.
¶ 20 The record and transcripts reveal DSS made reasonable efforts, consistent
with Dr. Popper’s recommendation, to assist Respondent-Mother with her supervised
visits, mental health issues, parenting and home skills, and innovation services; thus,
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these findings of fact are supported by competent evidence.
2. Sufficiency of Factual Findings
¶ 21 Respondent-Mother next challenges findings of fact 6, 12, 13, and 15, on the
ground these findings are unsupported by competent evidence. We disagree and
consider each finding in turn.
a. Finding of Fact 6
¶ 22 Finding of fact 6 states in pertinent part, “[DSS] made referrals for
[Respondent-Mother] to complete her case [and] attempted to engage [Respondent-
Mother] in services specifically recommended in the Parenting Assessment by Dr.
Popper . . . .”
¶ 23 As stated above, social worker Latoya Daniels and foster care supervisor Krista
McMillan testified as to the services to which Respondent-Mother was referred
including parenting coaching and classes, mental health services, supervised
visitation, innovation services, and assisted living where Respondent-Mother could
learn independent skills. These services were consistent with those recommended by
Dr. Popper. We conclude finding of fact 6 is supported by competent evidence. See
In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.
b. Finding of Fact 12
¶ 24 Finding of fact 12 states in pertinent part: “Respondent Mother is not making
adequate progress within a reasonable period of time under the plan.”
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¶ 25 Respondent-Mother expressly declined mental health services and services to
assist her in improving independent skills despite Dr. Popper’s finding that she
suffered from depression and anxiety, lacked basic parenting skills, and was unable
to live independently. Additionally, social worker Latoya Daniels testified that DSS
“had attempted to . . . assist [Respondent-Mother] to the best of [its] ability at this
point” through Pharos parenting classes. Placing a diaper on the child, a basic skill,
had been “cover[ed] for a significant amount of time.” Therefore, Respondent-
Mother’s argument is without merit. We conclude there was competent evidence in
the record to support finding of fact 12. See In re J.C.S., 164 N.C. App. at 106, 595
S.E.2d at 161.
c. Finding of Fact 13
¶ 26 Finding of fact 13 states in pertinent part, “Respondent Mother is not actively
participating in or cooperating with the plan, DSS, and the GAL for the juvenile.”
¶ 27 Respondent-Mother argues finding of fact 13 is a conclusory finding not
supported by the evidence. We disagree. The trial court determined a fact of
consequence, that Respondent-Mother had not actively participated in or cooperated
with her case plan, DSS, and the guardian ad litem for the juvenile—and this finding
is supported by competent evidence. The guardian ad litem’s 20 January 2021 court
report stated Respondent-Mother had not complied with DSS requests to maintain
visits nor the court’s orders to adhere to a case plan and was “combative on the topic
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of information flow” during the case review meeting. The guardian ad litem
concluded Respondent-Mother “continues to have shown little growth in her ability
to care for a child.” The testimony of the social workers also supports this finding.
Therefore, we conclude finding of fact 13 is supported by competent evidence. See In
re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.
d. Finding of Fact 15
¶ 28 Finding of fact 15 states in pertinent part, “The Court finds by clear and
convincing evidence that the Respondent Mother is acting in a manner inconsistent
with the health or safety of the juvenile.”
¶ 29 In DSS’s 20 January 2021 court summary prepared for the permanency
planning hearing, it reported there were continuing “concerns regarding diaper
changes and feedings.” Additionally, Dr. Popper noted in his August 2020 assessment
Respondent-Mother had not demonstrated skills needed to care for the juvenile child
or herself and has a history of threatening self-harm. He further stated, “her limited
cognitive resources, her lack of basic parenting skills, her emotional stability, and her
inability to live independently are issues that impact her ability to safely and
responsibly care for a young child at this time.” We conclude finding of fact 15 is
supported by competent evidence.
¶ 30 Although there may have been evidence to support findings to the contrary, we
hold findings of fact 5, 6, 8, 12, 13, and 15 are “supported by . . . competent evidence,”
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and therefore, are conclusive on appeal. See In re L.M.T., 367 N.C. at 168, 752 S.E.2d
at 455.
B. Adequacy of Services under the ADA
¶ 31 Next, Respondent-Mother challenges the adequacy of services offered by DSS
in its case plan and at the permanency planning hearing. DSS and the guardian ad
litem for A.P. contend Respondent-Mother waived the issue of ADA compliance by
DSS because she failed to challenge the adequacy of services before or during the
permanency planning hearing. After careful review, we conclude Respondent-Mother
waived her argument on this issue by failing to raise it in a timely manner after
receiving services under her DSS case plan.
¶ 32 In the unpublished case of In re S.A., our Court adopted the reasoning found
in In re Terry, 240 Mich. App. 14, 27, 610 N.W.2d 563, 570–71 (2000) to hold the
respondent-parent waived her argument as to adequacy of services offered by DSS.
In re S.A., 256 N.C. App. 398, 806 S.E.2d 81, 2017 N.C. App. LEXIS 906, at *6. We
also cited to In re Terry as persuasive authority in our published case of In re C.M.S.,
184 N.C. App. at 492–93, 646 S.E.2d at 595, discussed supra. In In re S.A., the
respondent-parent did not participate in the services offered by DSS. In re S.A., 256
N.C. App. 398, 806 S.E.2d 81, 2017 N.C. App. LEXIS 906, at *6–7. In holding the
respondent-mother waived her argument on appeal, we reasoned that at no time did
she object to the adequacy of the services being offered by DSS—neither before nor
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during the permanency planning hearing. Id. at *6.
¶ 33 Respondent-Mother attempts to distinguish In re S.A. from the instant case on
the grounds the parent in In re S.A. “had a physical disability rather than an
intellectual one.” This argument is without merit. We are again persuaded by the
Michigan Court of Appeals case of In re Terry. 240 Mich. App. at 26, 610 N.W.2d at
570. In In re Terry, the respondent-parent alleged she was a “qualified individual
with a disability” as defined by the ADA because of her intellectual limitations. The
court in In re Terry stated “[a]ny claim that the [social services agency] is violating
the ADA must be raised in a timely manner . . . so that any reasonable
accommodations can be made.” 240 Mich. App. at 26, 610 N.W.2d at 570. Further,
“[t]he time for asserting the need for accommodation in services is when the court
adopts a service plan . . . .” Id. at 27, 610 N.W.2d at 571. The In re Terry court
concluded that the respondent-parent’s challenge of the accommodations in the
closing argument of the termination of parental rights proceeding was “too late . . . to
raise the issue.” Id. at 27, 610 N.W.2d at 570–71.
¶ 34 Here, Respondent-Mother, like the mothers in In re S.A. and In re Terry,
cannot show she raised an issue regarding the adequacy of services provided by DSS
before or during the permanency planning hearing; therefore, we hold Respondent-
Mother waived her argument by raising it for the first time on appeal. See In re S.A.,
256 N.C. App. 398, 806 S.E.2d 81, 2017 N.C. App. LEXIS 906, at *6; In re Terry, 240
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Mich. App. at 27, 610 N.W.2d at 570–71.
C. Visitation Order
¶ 35 In her next argument, Respondent-Mother maintains the trial court’s
visitation order “was not an adequate accommodation for an individual with an
intellectual disability” because it gave A.P.’s father and custodian too much discretion
by allowing him to choose the place and the supervisor of visitation. She contends
“this Court should remand the dispositional order for entry of an order that grants
[her] appropriate visitation at a consistent location, to be supervised by a neutral
third party.” In light of our case precedent, we agree the trial court improperly gave
Respondent-Father substantial discretion to choose the location and supervisor for
Respondent-Mother’s visitation; however, we reject Respondent-Mother’s contention
that the visitation order did not provide her with reasonable accommodations,
because she failed to provide any support for that argument. See N.C. R. App. P.
28(b)(6) (“The body of the argument . . . shall contain citations of the authorities upon
which appellant relies.”).
¶ 36 We review visitation determinations for abuse of discretion. In re C.M., 183
N.C. App. 207, 215, 644 S.E.2d 588, 595 (2007). “When reviewing for abuse of
discretion, we defer to the trial court’s judgment and overturn it only upon a showing
that it was so arbitrary that it could not have been the result of a reasoned decision.”
In re K.W., 272 N.C. App. 487, 495, 846 S.E.2d 584, 590 (2020) (citation omitted).
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¶ 37 In decree 3 of the Order, the trial court mandated in pertinent part:
The Respondent Mother shall be entitled to visit with the
juvenile for a minimum of two hours every other weekend.
These visits shall be supervised by [Respondent Father] or
someone he approves. If the visiting Respondent Parent
and the custodial Respondent Parent cannot agree
regarding the specifics, visits shall take place from Noon-
2pm at allocation [sic] [Respondent Father] chooses.
[Respondent Father] shall arrange transportation for the
juvenile to and from visits. Additionally, [Respondent
Mother] shall be entitled to visitation of two hours
surrounding major holidays such as Thanksgiving and
Christmas. The Parents may agree on different times,
locations, and frequency of visits if they desire.
¶ 38 N.C. Gen. Stat. § 7B-905.1 provides:
(a) An order that removes custody of a juvenile from a
parent . . . shall provide for visitation that is in the best
interests of the juvenile consistent with the juvenile’s
health and safety, including no visitation.”
....
(c) 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.
N.C. Gen. Stat. § 7B-905.1(a), (c) (2019) (emphasis added).
¶ 39 We stated in In re Custody of Stancil:
When the custody of a child is awarded by the court, it is
the exercise of a judicial function. [N.C. Gen. Stat. §] 50-
13.2. In like manner, when visitation rights are awarded,
it is the exercise of a judicial function. We do not think that
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the exercise of this judicial function may be properly
delegated by the court to the custodian of the child.
Usually those who are involved in a controversy over the
custody of a child have been unable to come to a
satisfactory mutual agreement concerning custody and
visitation rights. To give the custodian of the child
authority to decide when, where and under what
circumstances a parent may visit his or her child could
result in a complete denial of the right and in any event
would be delegating a judicial function to the custodian.
10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971).
¶ 40 Here, the Order specified the minimum frequency—every other weekend—as
well as the length of visits—two hours. Furthermore, the Order specified that the
visits shall be supervised. Therefore, the Order met the minimum requirements for
a visitation plan under N.C. Gen. Stat. § 7B-905.1.
¶ 41 Nevertheless, Respondent-Mother cites to In re C.S.L.B., 254 N.C. App. 395,
400, 829 S.E.2d 492, 495 (2017) and In re J.D.R., 239 N.C. App. 63, 75–76, 768 S.E.2d
172, 180 (2015) in arguing that the visitation plan in the Order must be reversed
because it gives Respondent-Father too much discretion over her visits.
¶ 42 In In re C.S.L.B., this Court vacated a visitation order because it “improperly
delegate[d] the court’s judicial function to the guardians by allowing them to
unilaterally modify [r]espondent-mother’s visitation” by deciding if there was a
“concern” she was using substances. 254 N.C. App. at 400, 829 S.E.2d at 495. In In
re J.D.R., we concluded the visitation plan “delegate[d] to [the respondent-father]
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substantial discretion over the kinds of visitation” the respondent-mother would
receive. 239 N.C. App. at 75, 768 S.E.2d. at 179. Additionally, the order placed
conditions on the respondent-mother’s visitation rights and gave respondent-father
discretion to decide whether the respondent-mother “complied with the trial court’s
directives.” Id. at 75, 768 S.E.2d at 179.
¶ 43 After careful review, we agree the trial court improperly gave Respondent-
Father substantial discretion over the circumstances of Respondent-Mother’s
visitation by allowing him to choose the location and supervisor of the visitation. See
In re J.D.R., 239 N.C. App. at 75, 768 S.E.2d at 179 (concluding the trial court’s
“disposition order delegates to [respondent-father] substantial discretion over [some]
kinds of visitation” by allowing him to determine whether the respondent-mother
could eat lunch with the minor child at his school); In re K.W., 272 N.C. App. at 496,
846 S.E.2d at 591 (“We have consistently held that [t]he court may not delegate [its
grant of] authority [over visitation] to the custodian.”) (internal quotation marks
omitted). Moreover, Respondent-Father testified he was not willing to facilitate or
supervise Respondent-Mother’s visits and did not want Respondent-Mother to be part
of A.P.’s life. This is precisely the scenario we cautioned against in Stancil: the trial
court’s grant of authority to a custodian-parent to decide the circumstances of the
other parent’s visitation plan, which could completely deny that parent of his or her
right to visit with the minor child. See In re Custody of Stancil, 10 N.C. App. at 552,
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179 S.E.2d at 849. Therefore, we hold the trial court’s visitation order improperly
delegated a judicial function to Respondent-Father by allowing him the sole
discretion to decide where and by whom Respondent-Mother would be supervised
during her visitations with the minor child. We vacate the visitation order and
remand to the trial court for a proper visitation plan.
D. Future Review Hearings
¶ 44 In her final argument, Respondent-Mother asserts the trial court erred by
waiving further review hearings pursuant to N.C. Gen. Stat. § 7B-906.1 because such
a result “does not comport with fundamental fairness, the ADA, or A.P.’s best
interest.” She further contends the trial court erred by “[m]erely informing” the
parties of their right to file a motion for review of the visitation plan by notifying the
parties in writing in the Order. As such, Respondent-Mother argues the Order should
be remanded to require regular review hearings and continuous appointment of a
guardian ad litem for Respondent-Mother for the pendency of the juvenile proceeding.
We disagree.
¶ 45 N.C. Gen. Stat. § 7B-906.1(k) provides: “[i]f at any time a juvenile has been
removed from a parent and legal custody is awarded to either parent . . ., the court
shall be relieved of the duty to conduct periodic judicial reviews of the placement.”
N.C. Gen. Stat. § 7B-906.1(k) (2019). N.C. Gen. Stat. § 7B-905.1(d) states “[i]f the
court waives permanency planning hearings and retains jurisdiction, all parties shall
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be informed of the right to file a motion for review of any visitation plan entered
pursuant to this section.” N.C. Gen. Stat. § 7B-905.1(d) (2019).
¶ 46 Here, the trial court stated in its visitation decree of the Order that “[a]ll
parties are informed of the right to file a motion for review of this visitation plan.
Upon motion of any party and after proper notice and a hearing, the Court may
establish, modify, or enforce a visitation plan that is in the juvenile’s best interest.”
It also retained jurisdiction and notified the parties that “no further regular review
hearings [are] scheduled” after awarding legal custody to Respondent-Father.
¶ 47 In In re C.M.S. we adopted the rule followed by a majority of jurisdictions that
“termination proceedings are not ‘services, programs or activities’ under the ADA.”
184 N.C. App. at 491, 646 S.E.2d at 595 (citations omitted); see 42 U.S.C. § 12132.
Similarly, we conclude abuse, neglect, and dependency proceedings are not “services,
programs or activities” within the meaning of the ADA, and therefore, the ADA does
not create special obligations in such child protection proceedings. See In re Joseph
W., 305 Conn. 633, 651, 46 A.3d 59, 69–70 (2012) (stating the ADA does not act as a
defense or create special obligations in neglect proceedings); M.C. v. Dep’t of Child. &
Families, 750 So. 2d 705 (Fla. Dist. Ct. App. 2000) (explaining dependency
proceedings are held for the benefit of the child rather than the parents; thus, parents
may not assert the ADA as a defense in such a proceeding); 42 U.S.C. § 12132.
¶ 48 We hold the trial court met the statutory requirements set out in N.C. Gen.
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Stat. § 7B-906.1(k) and N.C. Gen. Stat. § 7B-905.1(d), and the ADA did not “change
the obligations imposed by [these] unrelated statutes.” See In re C.M.S., at 492, 646
S.E.2d at 595.
VI. Conclusion
¶ 49 We affirm the Order in part because the trial court’s findings of fact are
supported by competent evidence, and the findings of fact in turn support its
conclusions of law. We hold Respondent-Mother waived her argument regarding the
adequacy of services provided by DSS by raising the issue for the first time on appeal.
We vacate the visitation portion of the Order and remand for entry of an order
prescribing a proper visitation plan, because the court’s order on visitation gives
Respondent-Father substantial discretion to decide the circumstances of Respondent-
Mother’s visits. Finally, we hold the trial court met the statutory requirements
imposed by N.C. Gen. Stat. § 7B-906.1(k) and N.C. Gen. Stat. § 7B-905.1(d), and the
ADA does not expand the trial court’s obligations to Respondent-Mother under those
sections.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Judges INMAN and ZACHARY concur.