In re: J.M.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-421
Filed: 5 May 2020
Wake County, No. 16JA15
IN THE MATTER OF: J.M.
Appeal by Respondent Mother from order entered 16 January 2019 by Judge
Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals
18 February 2020.
Assistant County Attorney Julia B. Southwick for Petitioner-Appellee Wake
County Human Services.
Christopher M. Watford for Respondent-Appellant Mother.
Battle, Winslow, Scott & Wiley, PA, by M. Greg Crumpler, and Senior Deputy
County Attorney Roger A. Askew for guardian ad litem.
INMAN, Judge.
Respondent Jessica Hayes (“Mother”) appeals the district court’s permanency
planning order, pursuant to N.C. Gen. Stat. § 7B-1001(a)(4), placing guardianship of
her infant daughter Jane1 with foster parents.2 Mother contends the trial court erred
in: (1) waiving further review hearings; (2) finding that she was an unfit parent; (3)
failing to make an evidentiary finding that the foster parents understood the legal
1 We employ pseudonyms to preserve the anonymity of the juveniles.
2 Jane’s father does not appeal.
IN RE: J.M.
Opinion of the Court
significance of their appointment as guardians of Jane; and (4) ceasing reunification
efforts without first making the necessary findings of fact.
After careful review, we hold that the trial court properly waived further
review hearings, found that Mother is an unfit parent, and verified that Jane’s foster
parents understood their appointment as guardians. But we vacate the trial court’s
order and remand for the trial court to make the necessary findings in ceasing
reunification efforts.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record reflects the following facts:
On 15 January 2016, Wake County Human Services (“WCHS”) filed a juvenile
petition alleging Mother was neglecting her four young children, nine-year old
Damon, four-year old Joanne, two-year old Jake, and six-month old Jane. WCHS had
been involved with Mother and the children for the last two years by that time. In
December 2014, Mother created a safety plan that stemmed from instances of
domestic violence between her and the father of the three younger children (“Father”).
In May 2015, safety agreements were created to prevent Father and the maternal
grandfather from contacting the children due to reported instances of sexual abuse.
In early January 2016, a report indicated that Father had been seen around
Mother’s home with the children despite the safety plans being in place. Mother
resided at her sister’s residence for a short time and lived in a hotel before Father
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eventually located her and the children and stole her car and phone. Although
Mother was able to retrieve her stolen property, Father severely assaulted her,
causing her to file a police report for domestic violence. Mother and the children
subsequently became homeless days before WCHS filed its juvenile petition. The
children were then placed in non-secure custody with WCHS the day of the petition.
On 28 March 2016, the court adjudicated all four children neglected and kept
non-secure custody with WCHS. WCHS placed Joanne and Jake in a licensed foster
home together, while another foster family cared for Jane. Damon has mental health
issues and was placed in a psychiatric hospital. The trial court ordered Mother to
comply with a family services agreement, consisting of: obtaining and maintaining
sufficient housing; maintaining adequate employment; submitting to a parenting
evaluation and attending parenting classes; submitting to a domestic violence
evaluation and participating in counseling; regularly notifying the social worker of
any change in circumstances; and following the visitation agreement. Mother was
allowed to visit the children once per week for one hour.
Over the next two years, the trial court continually attempted to reunify the
children with Mother, with adoption being a secondary option. The trial court found
that Mother, in 2016, informed Damon that his father died without consulting his
therapist and posted a video on Facebook of her engaging in a fight, while she was
pregnant, with another pregnant woman. Mother received an unrelated court
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settlement and, instead of paying child support, bought a vehicle and vacationed in
the Bahamas. Mother also bought shoes for the children but did not allow them to
keep them, telling them “that the sneakers would be for when they ‘came home.’ ”
Despite these shortcomings, the trial court also found that Mother actively
participated in her case plan, maintained housing, regularly visited the children,
gained employment, and progressed in her parenting skills.
Mother gave birth to her fifth child, Danielle, in November 2016, which limited
the hours she worked.3 Beginning in July 2017, Mother transitioned from supervised
to unsupervised and overnight visits with Joanne, Jake, and Jane.
However, by the fifth review hearing, on 29 January 2018, more than two years
after WCHS’ juvenile petition, the trial court still had concerns about Mother’s ability
to successfully parent her children. Mother had regressed to supervised visits
because she unsatisfactorily cared for the children without a parenting coach or social
worker present. Joanne told WCHS that she saw Mother hit Jake on the head with
a broom, but Mother denied the act ever occurred.4 Mother told the children that
they were coming home soon, that their foster parents did not love them, and that the
foster parents cared for the children because they were being paid. The trial court
changed the primary plan to adoption and ordered reunification as a secondary plan.
3 WCHS did not petition for custody of Danielle, who has a different father.
4 Harnett County screened the report and concluded that “there was no indication that it
occurred by any other way than accidental means, and there were no injuries.” In a later review
hearing, Mother testified it was an accident.
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In November 2017, despite having her electricity turned off because she said
she could not pay the bill, Mother hosted a first birthday party for Danielle at an
amusement park and “assist[ed] her sister with her new born baby.” Mother still
failed to acknowledge that Damon—who had recently been moved to a group home—
suffered from mental illness and needed extensive treatment. Mother refused to
allow the children’s guardian ad litem to enter her residence and observe her visits
with them.
Following the sixth review hearing in July 2018, the trial court kept in place
the permanent plan of adoption with a secondary plan of reunification. The trial
court noted that Mother “continue[d] to require significant monitoring during her
visits with the children” and was “failing to provide appropriate supervision for all of
the children when the visits occur in her home.” Although Mother claimed she was
earning $477 a week, she failed to provide proof of income. Mother admitted that
“many individuals” help care for Danielle because “she doesn’t have a consistent
person to provide care for her.” Mother had reached the maximum amount of sessions
with a parenting coach available to her. At one point, Mother visited Damon
unannounced and falsely claimed that she had approval to be there.
By December 2018, nearly three years after the four children were removed
from Mother’s home, and despite protracted juvenile proceedings and supervision,
WCHS observed that Mother continued to need supervision and re-direction when
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Opinion of the Court
visiting the children and frequently exhibited poor decision-making skills. By that
time, Jane had developed a significant attachment to her foster parents and often
secluded herself when visiting Mother and her siblings.
On 16 January 2019, following another review hearing, the trial court awarded
guardianship of Jane to her foster parents and waived further review hearings.5
Mother appeals.
II. ANALYSIS
A. Waiving Review Hearings
Mother first argues that the trial court erroneously waived future review
hearings because the evidence was insufficient to support the court’s necessary
findings. We disagree.
In juvenile proceedings, the trial court must conduct review hearings every six
months or earlier “to review the progress made in finalizing the permanent plan for
the juvenile, or if necessary, to make a new permanent plan for the juvenile.” N.C.
Gen. Stat. § 7B-906.1(a) (2017). The trial court may waive future review hearings if
it “finds by clear, cogent, and convincing evidence each of the following”:
(1) The juvenile has resided in the placement for a period
of at least one year.
(2) The placement is stable and continuation of the
placement is in the juvenile’s best interests.
(3) Neither the juvenile’s best interests nor the rights of
any party require that review hearings be held every six
5 The record does not disclose the updated statuses of Mother’s remaining children in WCHS
custody.
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months.
(4) All parties are aware that the matter may be brought
before the court for review at any time by the filing of a
motion for review or on the court's own motion.
(5) The court order has designated the relative or other
suitable person as the juvenile’s permanent custodian or
guardian of the person.
Id. §§ 7B-906.1(n)(1)-(5). The trial court cannot “waive or refuse to conduct a review
hearing if a party files a motion seeking the review.” Id. § 7B-906.1(n).
Mother concedes that the trial court made the statutory findings of fact, but
contends that no evidence supports some of those findings. Finding 21 provides that
“[n]either the best interests . . . of any party require that review hearings be held
every six (6) months.” The social worker for WCHS, Christina Dillahunt
(“Dillahunt”), testified at the most recent review hearing that, over the past three
years since WCHS obtained non-secure custody, Mother has been unable to
adequately care for the children without additional supervision and proper direction.
Dillahunt testified, for example, that Mother routinely made poor decisions while
monitoring the children, including feeding the children large amounts of sugary food,
despite their needing significant dental work; attempted to show Jane a graphic
picture of Mother’s sister’s vehicle crash; and asked Jane, then age three, to watch
Danielle while she attended to another child. Mother does not contest the finding
that “it does not appear likely that either parent will be in a position to safely parent
[Jane] with the next six (6) months.” We hold this evidence provides, clear, cogent,
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and convincing support for the factors required by Section 7B-906.1(n) and the trial
court’s waiver of future six-month review hearings.
Finding 22 states that “[a]ll of the parties are aware that the matter may be
reviewed upon motion for review of any party.” The hearing transcript reveals that
the trial court informed the parties and their counsel who were present that “the
matter may be brought before the Court for review at any time by filing a motion for
review or on the court’s own motion.” Thus, the transcript establishes that the parties
were aware that the matter could be reviewed upon a motion by any party,
notwithstanding the trial court’s waiver of further periodic review hearings.
B. Fitness as a Parent
Mother next argues that the trial court’s finding that she was unfit as a parent
was not supported by the evidence and violated her constitutional right as a parent.
We disagree.
“A natural parent’s constitutionally protected paramount interest in the
companionship, custody, care, and control of his or her child is a counterpart of the
parental responsibilities the parent has assumed and is based on a presumption that
he or she will act in the best interest of the child.” Price v. Howard, 346 N.C. 68, 79,
484 S.E.2d 528, 534 (1997) (citations omitted). However, “the parent may no longer
enjoy a paramount status if his or her conduct is inconsistent with this presumption
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or if he or she fails to shoulder the responsibilities that are attendant to rearing a
child.” Id.“[A] natural parent may lose his constitutionally protected right to the control
of his children in one of two ways: (1) by a finding of unfitness of the natural parent,
or (2) where the natural parent’s conduct is inconsistent with his or her
constitutionally protected status.” David N. v. Jason N., 359 N.C. 303, 307, 608
S.E.2d 751, 753 (2005). “Unfitness, neglect, and abandonment clearly constitute
conduct inconsistent with the protected status parents may enjoy.” Price, 346 N.C.
at 79, 484 S.E.2d at 534. “Therefore, the trial court must clearly address whether
[the parent] is unfit as a parent or if her conduct has been inconsistent with her
constitutionally protected status as a parent, should the trial court . . . consider
granting custody or guardianship to a nonparent.” In re J.L., __ N.C. App. __, __, 826
S.E.2d 258, 266 (2019) (quotation marks, citations, and alterations omitted); see also
In re D.A., 258 N.C. App. 247, 250, 811 S.E.2d 729, 732 (2018) (requiring the trial
court “to find that the parents were either unfit or had acted inconsistently with their
constitutionally protected status as parents”).
At the end of the hearing, the trial court made an oral finding from the bench
that “both parents are still unfit and have acted in a manner inconsistent with their
constitutionally protected right as a parent.” In its written order, the trial court found
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that “[b]oth parents are acting inconsistently with the health and safety of the child
and are unfit to have custody of the child.”
A trial court’s finding that a parent is unfit will be affirmed on appeal if we
conclude that the finding is supported by clear and convincing evidence. See, e.g.,
Adams v. Tessener, 354 N.C. 57, 66, 550 S.E.2d 499, 505 (2001) (concluding, to affirm
the trial court’s award of custody to grandparents, that “the evidence of record
constitutes clear and convincing proof that [the parent’s] conduct was inconsistent
with his right to custody of the child”).
The trial court made the following pertinent findings of fact:
6. The mother has not been able to adequately
demonstrate the ability to parent the child. She continues
to require significant monitoring during her visits with the
children. She continues to fail to demonstrate the ability
to safely parent the children without the intervention of
the social worker. The mother has allowed the children to
spend a great deal of time during the visits playing games
on the mother’s cell phone. The mother’s behavior in visits
was consistent with the mother failing to provide
consistent and appropriate supervision for the child and
her siblings when the visits occurred in her home. The
mother may have completed the services which have been
ordered over the nearly three (3) year period the child has
been in custody but has not sufficiently demonstrated a
change in her approach to parenting such that the child
would be safe and have her needs met in the mother’s
care. . . .
11. Neither parent has been able to demonstrate an ability
to safely care for the child such that the Court would be
able to approve unsupervised visitation. The mother was
awarded unsupervised visits at one time but was unable to
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maintain that level due to an incident in which an older
sibling was hit in the forehead with a broom handle by the
mother. . . .
19. The return of the child to [Mother’s custody] would be
contrary to the child’s health and safety.
Dillahunt, the social worker responsible for monitoring Mother’s contact with
the children, testified as follows:
 Over a period of nearly three years, Mother consistently exhibited
concerning behavior when caring for and visiting Jane and the other
children.
 Mother hit Jake on the forehead with a broomstick.
 Mother frequently lost track of the children when they visited and needed
redirection to effectively manage the children’s behaviors and how to speak
with them.
 When the children visited with Mother, she directed them to sit and watch
television extensively, and allowed Jane, not yet four years old, to “spend[]
excessive amount[s] of time on [Mother’s] phone playing video games.”
In light of the above evidence, we hold that the trial court did not err in
determining that Mother was unfit to parent Jane.
To the extent Mother argues that her positive actions toward reunification
were not given sufficient weight by the trial court, we emphasize that “[i]t is not the
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Opinion of the Court
function of this Court to reweigh the evidence on appeal.” In re T.H. & M.H., __ N.C.
App. __, __, 832 S.E.2d 162, 166 (2019) (quotations marks and citation omitted).
Although Mother argues that other findings of fact are unsupported by
sufficient evidence, we need not address this argument, because the findings we have
already concluded are supported by clear and convincing evidence are sufficient to
support the trial court’s ultimate finding that Mother is unfit to parent Jane. See,
e.g., In re P.T.W., 250 N.C. App. 589, 602, 794 S.E.2d 843, 852 (2016) (citation
omitted).
C. Verification of Guardianship
Mother asserts that the trial court awarded guardianship to Jane’s foster
parents without making an evidentiary finding that they understood the legal
significance of their appointment. We hold that the trial court performed its statutory
duty.
Before a trial court can appoint a guardian, it must “verify that the person
being appointed as guardian of the juvenile understands the legal significance of the
appointment and will have adequate resources to care appropriately for the juvenile.”
N.C. Gen. Stat. § 7B-600(c) (2017); see also N.C. Gen. Stat. § 7B-906.1(j) (2017). The
trial court does not need to “make any specific findings in order to make the
verification.” In re J.E., 182 N.C. App. 612, 616-17, 643 S.E.2d 70, 73 (2007). “It is
sufficient that the court receives and considers evidence that the guardians
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understand the legal significance of the guardianship.” In re L.M., 238 N.C. App. 345,
347, 767 S.E.2d 430, 432 (2014) (citation omitted).
Here, the foster parents testified at the hearing as to the following:
[Trial Court]. Do you understand that, as the guardian,
you would be—you would have the care, custody, and
control of the child or could arrange a suitable placement
for the child? Do you understand that?
[Foster Father]. Yes.
[Trial Court]. Do you understand that you would represent
the child in legal actions before the Court?
[Foster Father]. Yes.
[Trial Court]. Do you understand—I’m not saying you
would, but do you understand you could consent to
marriage, enlisting in the armed forces, or enrollment in
school?
[Foster Father]. Yes.
[Trial Court]. Do you understand that you could also
consent to any necessary remedial, psychological, medical,
or surgical treatment for the child?
[Foster Father]. Yes.
[Trial Court]. Do you understand that your authority as
guardian shall continue until guardianship is terminated
by a court order, until the child is emancipated pursuant to
a certain legal action or until she reached the age of
majority?
[Foster Father]. Yes.
[Trial Court]. Do you understand that the Court would only
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terminate the guardianship if the Court found that the
relationship between you and the child was no longer in the
child's best interest, you became unfit, that you neglected
your duties as guardian, or that you were unwilling or
unable to continue assuming the guardian's duties?
[Foster Father]. Yes.
[Trial Court]. And are you willing and able to become a
guardian?
[Foster Father]. Yes.
[Trial Court]. Are you willing to follow the Court's order
regarding visitation with the parents?
[Foster Father]. Yes.
[Trial Court]. Are you willing to either—depending on what
the Court would decide at some point, supervise or monitor
the visitation or arrange for pick-up and drop-off if it ever
became unsupervised that either you would do it, your wife
would do it, or you would have someone that you
designated do it?
[Foster Father]. Yes.
[Trial Court]. You are willing to accommodate that?
[Foster Father]. Yes, we will.
....
[Direct Examination]. Okay. And did you hear everything
your—
[Foster Mother]. I did.
[Direct Examination]. —husband testified to? And do you
agree with all of that?
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[Foster Mother]. Completely, yes.
[Direct Examination]. Do you understand the same things
that the Judge has asked him, as far as your obligations?
[Foster Mother]. I do.
[Direct Examination]. And are you also willing to -- willing
and able to provide for this child as her guardian?
[Foster Mother]. Completely, yes.
[Direct Examination]. Okay. And do you and your husband
both care for her?
[Foster Mother]. Completely.
[Direct Examination]. Do you have—what type of emotions
do you have with connection to her?
[Foster Mother]. A little too much.
[Direct Examination]. Okay. And you consider her as part
of your family?
[Foster Mother]. Yes. . . .
[Cross Examination]. Will you provide a safe and loving
home for her until she reaches the age of majority?
[Foster Mother]. Easily, yes.
[Cross Examination]. And meet all of her needs?
[Foster Mother]. Yes.
Dillahunt, the social worker, also testified that the foster parents understood their
responsibilities as guardians and indicated their “desire to have [Jane] treated
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Opinion of the Court
exactly as their biological children.”
In its order, the trial court found that the foster parents “are committed to
providing for the child for the remainder of her minority and beyond” and “are willing
to become parties to this action.” The above evidence and findings show that the trial
court performed its duty under Section 7B-600(c) in verifying that Jane’s foster
parents understood the legal significance of their appointment as guardians. We
need not review whether the trial court verified that the foster parents have the
financial resources to care for Jane, as Mother does not argue that on appeal.
D. Reunification Efforts
Mother finally argues that the trial court did not make all of the required
findings of fact before ceasing reunification efforts. We agree and vacate the trial
court’s guardianship order and remand for the trial court to make the necessary
findings.
“This Court reviews an order that ceases reunification efforts to determine
whether the trial court made appropriate findings, whether the findings are based
upon credible evidence, whether the findings of fact support the trial court's
conclusions, and whether the trial court abused its discretion with respect to
disposition.” In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations
omitted).
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A trial court may cease reunification efforts following any permanency
planning hearing if it “makes written findings that reunification efforts clearly would
be unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C.
Gen. Stat. § 7B-906.2(b) (2017). In determining that efforts would be unsuccessful or
contrary to the juvenile’s well-being, the court must make written findings
“demonstrat[ing] lack of success” as to each of the following:
(1) Whether the parent is making adequate progress within
a reasonable period of time under the plan.
(2) Whether the parent is actively participating in or
cooperating with the plan, the department, and the
guardian ad litem for the juvenile.
(3) Whether the parent remains available to the court, the
department, and the guardian ad litem for the juvenile.
(4) Whether the parent is acting in a manner inconsistent
with the health or safety of the juvenile.
Id. § 7B-906.2(d).
Here, the trial court made limited findings relating only to portions of the
factors listed above. The guardian ad litem concedes that the trial court made no
finding regarding whether Mother demonstrated a lack of success in participating or
cooperating with WCHS and the guardian ad litem or whether she has remained
available to the court, WCHS, or the guardian ad litem.
Because “the trial court failed to make the requisite findings required to cease
reunification efforts” under Section 7B-906.2(d), In re D.A., 258 N.C. App. at 254, 811
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S.E.2d at 734, we vacate the trial court’s order and remand for it to make those
findings. Although Mother also argues that the trial court’s findings were not
supported by credible evidence, we will not review that argument as we already
determined its findings are deficient.
III. CONCLUSION
We affirm the trial court’s decision to waive further review hearings and hold
that it properly found Mother is an unfit parent and that it performed its statutory
duty in verifying that Jane’s foster parents understood the legal significance of their
appointment as guardians. We vacate and remand the trial court’s guardianship
order for it to make the required statutory findings before ceasing reunification
efforts.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
Judges STROUD and YOUNG concur.
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