In re: A.J.L.H., C.A.L.W. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-267-2
Filed 18 July 2023
Guilford County, Nos. 19 JA 404–06
IN THE MATTER OF: A.J.L.H., C.A.L.W., M.J.L.H.
Appeal by respondents from order entered 13 December 2019 by Judge Tonia
A. Cutchin in Guilford County District Court. This case was originally heard in the
Court of Appeals 17 November 2020. See In re A.J.L.H., 275 N.C. App. 11, 853 S.E.2d
459 (2020). Upon remand from the Supreme Court of North Carolina.
Mercedes O. Chut for petitioner-appellee Guilford County Department of Social
Services.
Leslie C. Rawls, for the mother-appellant.
Benjamin J. Kull for respondent-father appellant.
Tin, Fulton, Walker & Owen, PLLC, by Cheyenne N. Chambers, for guardian
ad litem.
TYSON, Judge.
This case was returned to this Court on remand from the Supreme Court of
North Carolina to address Respondents’ remaining arguments concerning the
disposition order. In re A.J.L.H., 384 N.C. 45, 47, 884 S.E.2d 687, 695-96 (2023),
(hereinafter “A.J.L.H. II”), reversing and remanding In re A.J.L.H., 275 N.C. App. 11,
853 S.E.2d 459 (2020) (hereinafter “A.J.L.H. I”). We reverse the orders of the trial
court regarding visitation and remand for further findings of facts and conclusions of
IN RE A.J.L.H., C.A.L.W., M.J.L.H.
Opinion of the Court
law.
I. Background
This matter involves the adjudication of Margaret as an abused and neglected
juvenile, and the adjudication of Margaret’s two younger siblings, Chris and Anna,
as neglected juveniles. See N.C. R. App. P. 42(b) (pseudonyms used to protect the
identities of the juveniles). The facts and procedural history are set forth in the
Supreme Court’s opinion:
Respondent-mother is the mother of Margaret,
Chris, and Anna. Respondent-father lives with
respondent-mother and the children but is the biological
father only of the youngest child, Anna. The fathers of
Margaret and Chris are not parties to this appeal.
In May 2019, the Guilford County Department of
Health and Human Services [(“DHHS”)] received a report
of inappropriate discipline of Margaret. According to the
report, Margaret “became extremely upset” following an
incident at school and told school personnel that “she would
be getting a whipping from her step-father just like she had
done the previous day.” The report noted that there were
three marks on Margaret’s back “where the skin was
broken and appeared to be from a belt mark” as well as red
marks on Margaret’s arms. The report further indicated
that respondent-mother arrived at the school and stated
that Margaret “was going to be punished again when she
went home” and that Margaret “was afraid to go home.”
The next day, DHHS received a second report that
Margaret had a new injury on the upper part of her back
or neck “that appeared to be like a silver dollar.” Margaret
explained that she “was hit” but would not give any details.
Margaret was shaking and hiding under a desk, and she
explained that she did not want to go home because “they”
were “going to hurt me.”
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In response to this report, a social worker, Lisa
Joyce, went to Margaret’s school that day to speak with
her. Joyce found Margaret under a desk in the school
counselor’s office. Margaret appeared nervous and told
Joyce that she was afraid to go home. Margaret told Joyce
that respondent-father hit her with a belt buckle, causing
the marks on her back, and that respondents punished her
by making her sleep on the floor without covers and stand
in the corner for hours at a time. Joyce observed marks on
Margaret’s lower back and at the base of her neck,
consistent with the two reports.
After speaking to Margaret, Joyce met with
respondent-mother to discuss the allegations. Respondent-
mother stated that Margaret “has been lying a lot lately”
and that she knew about the marks on Margaret’s back.
She explained that the marks were “from the disciplinary
action that she had asked respondent-father to perform”
but that the marks were “accidental” due to Margaret
moving around and causing respondent-father to hit her
back instead of her buttocks area.
Respondent-mother also told Joyce “that she does
take the bed privileges away for lying, that she does make
Margaret stand in the corner from about 3:30 PM to around
6:00 PM,” and that after stopping for dinner, “the child goes
back to standing in the corner until it’s bedtime.” When
asked about the frequency of punishment, respondent-
mother stated “that recently it had been occurring about
every day” due to Margaret’s behavior. When Joyce
expressed the view that the discipline seemed “extreme to
be using on the child,” respondent-mother responded that
she did not feel like what she was doing was wrong and she
“felt like that this was appropriate.”
Joyce also spoke with respondent-father. He
reported to Joyce that he had physically disciplined
Margaret in the days leading up to the DHHS reports and
that he did so to “discourage the child from lying.”
Respondent-father also confirmed that Margaret “is made
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Opinion of the Court
to stand in the corner for two to three hours at a time” and
“made to sleep on the floor” as additional forms of
discipline. When asked how often these disciplinary
actions were happening, respondent-father stated that “it
had been occurring a lot” in the past two months. Joyce
asked whether respondent-father thought the practices
were appropriate, and he responded that “he didn’t see
anything wrong with the disciplinary practices that they
were using.”
DHHS entered into a safety plan with respondents,
under which Margaret was placed with her maternal
grandmother. Chris and Anna remained in the home with
respondents. Respondent-mother was charged with
misdemeanor child abuse, and respondent-father was
charged with assault on a child under the age of twelve in
connection with their discipline of Margaret.
Between May and August 2019, DHHS social
workers made home visits to check on Chris and Anna.
They found no issues of concern. On 8 August 2019, DHHS
held a meeting with respondents. The DHHS staff
members explained their concerns about Margaret’s
discipline to respondents; however, respondents continued
to defend their discipline of Margaret, with respondent-
mother explaining that she was trying to “teach” Margaret
that if Margaret continued misbehaving “she could end up
in jail.” Respondents did not commit to stop disciplining
Margaret as they had in the past and did not acknowledge
that these repeated, daily disciplinary measures—
including whippings with a belt—were inappropriate for a
nine-year-old child.
The following day, DHHS filed juvenile petitions
alleging that Margaret was abused and neglected and that
three-year-old Chris and three-month-old Anna were
neglected. DHHS obtained custody of all three children.
After a hearing in which the trial court received
evidence concerning the facts described above, the court
entered an adjudication and disposition order on 13
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Opinion of the Court
December 2019. In the order, the trial court adjudicated
Margaret an abused and neglected juvenile and
adjudicated Chris and Anna as neglected juveniles. In its
disposition order, the court placed Margaret with a relative
and Chris and Anna in foster care. The court determined
that it was not in the children’s best interests for
respondents to have any visitation with the children while
they worked on their case plans with DHHS. The court
also scheduled a review hearing for several months after
the date of the order.
In re A.J.L.H. II, 384 N.C. at 48-50, 884 S.E.2d at 690-91 (alternations in original
omitted) (footnote omitted).
In the prior appeal, this Court vacated and remanded the order adjudicating
Margaret as an abused and neglected juvenile. In re A.J.L.H. I, 275 N.C. App. at 21-
23, 853 S.E.2d at 467-68. This Court explained the trial court’s findings relied on
inadmissible hearsay statements from Margaret, concluding it was “apparent the
trial court’s abuse adjudication [wa]s heavily reliant and intertwined with its findings
based on inadmissible evidence.” Id. at 23, 853 S.E.2d at 468. The matter was
remanded to the trial court “for a new hearing at which the trial court should make
findings on properly admitted clear and convincing evidence and make new
conclusions of whether” Margaret is an abused or neglected juvenile. Id. If the trial
court again found Margaret was an abused or neglected juvenile, this Court
instructed the trial court to “order generous and increasing visitation between
Margaret and her mother.” Id. at 25, 853 S.E.2d at 469.
This Court further held the adjudications of Chris and Anna as neglected
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Opinion of the Court
juveniles should be reversed, because those adjudications were “based solely on its
conclusion Margaret was purportedly abused and neglected.” Id. at 24, 853 S.E.2d at
468.
DHHS timely filed a petition for discretionary review to our Supreme Court
pursuant to N.C. Gen. Stat. § 7A-31 (2021), and the guardian ad litem joined the
request for review.
The Supreme Court allowed the petition, In re A.J.L.H. II, 384 N.C. at 51, 884
S.E.2d at 692, and reversed this Court’s decision regarding Margaret’s out-of-court
statements, concluding: (1) Margaret’s testimony was best classified as an out-of-
court statement offered for a purpose other than to prove the truth of the matter
asserted and should not be considered hearsay; and, (2) this Court should have
“simply disregard[ed] information contained in findings of fact that lack[ed] sufficient
evidentiary support and examine[d] whether the remaining findings support[ed] the
trial court’s determination.” Id. at 52, 884 S.E.2d at 692-93 (citation and internal
quotation marks omitted).
Our Supreme Court also re-affirmed appellate review of a trial court’s best
interests assessment regarding a visitation decision made pursuant to N.C. Gen.
Stat. § 7B-905.1 is for an abuse of discretion. Id. at 56-57, 884 S.E.2d at 695. “In the
rare instances when a reviewing court finds an abuse of that discretion, the proper
remedy is to vacate and remand for the trial court to exercise its discretion. The
reviewing court should not substitute its own discretion for that of the trial court.”
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Opinion of the Court
Id. at 48, 884 S.E.2d at 690.
II. Issues
We review whether the trial court abused its discretion when it failed to
provide for any visitation between Respondents and their children with their parents.
III. Dispositional Order for Visitation
Respondents argue the trial court abused its discretion when: (1) it prohibited
any visitation between Respondent parents and their three children; and, (2) it
concluded DHHS had made reasonable efforts to avoid taking custody of the children.
They also assert “it was not reasonable for DHHS to seek custody of these children
because of the parents’ refusal to agree with the blanket accusation DHHS leveled
against them.” They also argue the trial court abused its discretion and erred by
failing to consider and make the required factors and determinations to support any
finding it was in the children’s best interests to deny visitation.
A. Standard of Review
“The assessment of the juvenile’s best interests concerning visitation is left to
the sound discretion of the trial court and ‘appellate courts review the trial court’s
assessment of a juvenile’s best interests solely for an abuse of discretion.’ ” A.J.L.H.
II, 384 N.C. at 57, 884 S.E.2d at 695 (quoting In re K.N.L.P., 380 N.C. 756, 759, 869
S.E.2d 643, 646 (2022)).
“Under this standard, we defer to the trial court’s decision unless it is
manifestly unsupported by reason or one so arbitrary that it could not have been the
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Opinion of the Court
result of a reasoned decision.” In re K.N.L.P., 380 N.C. at 759, 869 S.E.2d at 646
(citation omitted).
“The standard of review that applies to an [assertion] of error challenging a
dispositional finding is whether the finding is supported by competent evidence. A
finding based upon competent evidence is binding on appeal, even if there is evidence
which would support a finding to the contrary.” In re B.C.T., 265 N.C. App. 176, 185,
828 S.E.2d 50, 57 (2019) (citation and quotation marks omitted). Dispositional
findings must be based upon properly admitted and clear cogent and convincing
evidence. Id.B. Analysis
After initially concluding a parent is either unfit or has acted inconsistent with
his or her parental rights, “even if the trial court determines that visitation would be
inappropriate in a particular case . . . it must still address that issue in its
dispositional order and either adopt a visitation plan or specifically determine that
such a plan would be inappropriate in light of the specific facts under consideration.”
In re J.L. 264 N.C. App. 408, 421, 826 S.E.2d 258, 268 (2019) (citation omitted). A
trial court may only “prohibit visitation or contact by a parent when it is in the
juvenile’s best interest consistent with the juvenile’s health and safety.” Id.[E]ven if the trial court determines . . . that a parent has
forfeited his or her right to visitation, it must still address
that issue in its dispositional order and either adopt a
visitation plan or specifically determine that such a
[visitation] plan [is] inappropriate in light of the specific
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Opinion of the Court
facts under consideration.
In re K.C., 199 N.C. App. 557, 562, 681 S.E.2d 559, 563 (2009).
When denying all visitation, this Court has required the trial court to find
factors such as: (1) whether the parent denied visitation has a “long history with
CPS”; (2) whether the issues which led to the removal of the current child are related
to previous issues which led to the removal of another child; (3) whether a parent
minimally participated, or failed to participate, in their case plan; (4) whether the
parent failed to consistently utilize current visitation; and, (5) whether the parent
relinquished their parental rights. See In re J.L., 264 N.C. App. at 422, 826 S.E.2d
at 268 (analyzing a trial court’s compliance with N.C. Gen. Stat. § 7B-905.1 regarding
the visitation provisions awarded in a permanency planning order).
Here, the trial court was constitutionally and statutorily required to assess
whether and to the extent visitation should be awarded to four different parents for
each of their respective children. Respondent-mother’s visitation with all three
children, Respondent-Father’s visitation with Anna, Chris’s biological father’s
visitation, and Margaret’s biological father’s visitation. The order contains and
recites the history and current compliance to case plans for all four individuals.
The trial court, however, failed to find and make conclusions of law addressing
the factors applicable to visitation for each child with each parent. The trial court
also failed to conduct an individualized evaluation of the factors affecting each
parents’ visitation rights with his, her, or their children. The transcript shows the
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Opinion of the Court
trial court only had the following brief exchange:
THE COURT: In addition, the Court will also deny the
request for visits between the juvenile [Anna], [Chris], and
[Margaret] in reference to [respondent-mother]. The Court
will also deny the request for visits in reference to
[respondent-father] and [Anna].
However, the Court will grant the request for visits
between [Chris’s biological father] and the juvenile [Chris]
whereby he shall visit with this juvenile once per week for
two hours, supervised by the Department.
...
The motion to place the juveniles [Anna] and [Chris]
with [respondent-father’s] relatives is denied. The request
to attend medical appointments is also denied. However,
the request for shared parenting is granted, via e-mail
only.
...
[DHHS Attorney]: And Your Honor, a visitation order for
[Margaret’s biological father].
THE COURT: No visits.
The trial court made no findings or conclusions regarding why only one parent,
Chris’s biological father, was entitled to supervised visitation with his child, but the
other three biological parents were denied any and all visitation, placement with
children’s family or relatives, or presence and participation in their medical care. For
example, the trial court found respondent-father had complied with his case plan,
had maintained employment, had provided safe housing, and had significantly fewer
legal infractions on his record than Chris’s biological father, who was provided
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Opinion of the Court
visitation. Neither the record nor the order provides a finding or explanation for the
objectively disparate treatment accorded to Chris’s biological father and the other
three parents involved in the matter, nor the denial of family or relative placement,
and participation in the children’s medical appointments.
The trial court failed to make specific determinations for each parent regarding
unfitness or conduct inconsistent with their parental rights and, only after then, to
determine whether parental visitation was in the best interests of each of their
children. This absence demonstrates the trial court failed to make the required
findings and conclusions and prejudicially erred in disposition. These failures: render
the order manifestly unsupported by reason, demonstrate the conclusions of law were
unsupported, lack legal validity, and constitutes an abuse of discretion. In re
K.N.L.P., 380 N.C. at 759, 869 S.E.2d at 646; In re J.L. 264 N.C. App. at 421, 826
S.E.2d at 268.
IV. Conclusion
After reviewing the remaining dispositional questions remanded to this Court,
we hold the trial court failed to make required and specific determinations of fact to
demonstrate the trial court made supported conclusions of law. Upon remand, the
trial court is to make the required findings of fact and conclusions of law concerning
visitation, family placement, and parental involvement in medical treatment in the
best interests of each child for each respective parent of each child. In re K.N.L.P.,
380 N.C. at 759, 869 S.E.2d at 646; In re J.L. 264 N.C. App. at 421, 826 S.E.2d at 268.
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Opinion of the Court
We vacate those dispositional portions of the 23 October 2019 Adjudication and
Disposition Order and remand for further proceedings. It is so ordered.
VACATED IN PART AND REMANDED.
Chief Judge STROUD and Judge HAMPSON concur.
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