IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-473
Filed: 19 March 2019
Johnston County, No. 16 JA 198
IN THE MATTER OF: J.L.
Appeal by respondent-mother from order entered 12 February 2018 by Judge
Paul A. Holcombe, III, in Johnston County District Court. Heard in the Court of
Appeals 28 February 2019.
No brief filed for petitioner-appellee Johnston County Department of Social
Services.
Jeffrey L. Miller for respondent-appellant mother.
Marie H. Mobley for guardian ad litem.
Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, for
guardian-appellees.
BRYANT, Judge.
Respondent, the mother of the minor child J.L. (“Jay”),1 appeals from the trial
court’s permanency planning order awarding guardianship of the child to his foster
parents (“Mr. and Ms. C”). We hold the trial court erred by failing to indicate that
the findings of fact supporting the determination that respondent was unfit as a
parent and had acted inconsistent with her constitutionally protected parental status
1 Pseudonyms are used throughout this opinion to protect the juvenile’s identity and for ease
of reading.
IN RE: J.L.
Opinion of the Court
were found to a clear and convincing evidence standard of proof and by failing to
notify respondent of her right to file a motion for review of the visitation plan, as
required by General Statutes, section 7B-905.1(d). We vacate those portions of the
trial court’s 12 February 2018 permanency planning order and remand for further
proceedings consistent with this opinion. The order is otherwise affirmed.
Two days after Jay’s birth in October 2016, the Johnston County Department
of Social Services (“DSS”) filed a juvenile petition alleging Jay was a neglected and
dependent juvenile. The petition alleged that: (1) DSS received a Child Protective
Services (“CPS”) report that respondent had a history with CPS in Wake County and
Johnston County; (2) three other children had been removed from respondent’s care;
(3) respondent had been unable to acquire adequate housing, complete parenting
classes, attend budgeting classes, or remain compliant with recommended mental
health treatment, and as a result, the permanent plan for those children had been
changed to adoption; (4) respondent subsequently relinquished her parental rights to
those children;2 (5) respondent’s current roommate had a history with CPS and did
not have custody of any of her own children; and (6) respondent displayed concerning
behaviors at the hospital, including failing to feed Jay in a timely manner, an “overall
lack of knowledge in basic infant care” during feedings and diaper changes, and an
2 DSS court reports indicate that respondent relinquished her parental rights to two of her
children through proceedings in Wake County, but her oldest child was adopted in Alabama following
termination of her parental rights.
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IN RE: J.L.
Opinion of the Court
inability to control the amount of force exerted when moving Jay’s limbs. The same
day, DSS obtained nonsecure custody of Jay and placed him in foster care with Mr.
and Ms. C.
A hearing on the petition was held on 7 December 2016. Respondent stipulated
to the factual basis of the petition and consented to an adjudication of neglect and
dependency. The trial court entered an order on 2 February 2017 adjudicating Jay
to be a neglected and dependent juvenile. The same day, the trial court entered a
separate dispositional order continuing custody of Jay with DSS. Jay remained
placed in foster care with Mr. and Ms. C, and respondent was allowed one-hour of
supervised visitation twice a month. The trial court ordered respondent to cooperate
with DSS and follow any and all DSS recommendations, which included the following:
complete parenting classes and demonstrate learned knowledge; complete a mental
health assessment and follow all recommendations; take all medications as
prescribed; submit to drug screens as requested by DSS; obtain and maintain safe,
stable housing that is clean, appropriately furnished, and free from substance abuse
and domestic violence; obtain and maintain sufficient financial resources to meet
Jay’s needs; educate herself regarding budgeting and demonstrate learned
knowledge; and conduct herself in an appropriate manner during visitations.
After a permanency planning hearing on 22 March 2017, the trial court entered
an order ceasing reunification efforts with respondent and establishing a primary
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IN RE: J.L.
Opinion of the Court
permanent plan of custody or guardianship with a court-approved caretaker, with a
secondary plan of adoption. Jay remained in DSS custody and in his foster care
placement with Mr. and Ms. C. Respondent’s visitation was reduced to a monthly,
one-hour supervised visit.
A subsequent permanency planning hearing was held on 2 and 9 August 2017.
At the beginning of the hearing, DSS informed the trial court it had located the foster
parents who had adopted two of Jay’s older half-siblings (“Mr. A and Ms. F”), and it
recommended that Jay be moved to that foster home. Jay’s guardian ad litem (“GAL”)
and respondent agreed with DSS’s recommendation. At that time, counsel for Jay’s
current foster parents, Mr. and Ms. C, indicated they intended to file a motion to
intervene in the matter. The trial court stated Mr. and Ms. C could not be made
parties to the case, but it would permit their counsel to facilitate their testimony on
direct examination since it was required to hear information from any person
providing care for the juvenile. See N.C. Gen. Stat. § 7B-906.1(c) (2017). During the
hearing, the trial court heard testimony from the following witnesses: (1) Jay’s social
worker; (2) Jay’s GAL; (3) Jay’s foster parents, Mr. and Ms. C; (4) the GAL for Jay’s
two older half-siblings who were adopted by Mr. A and Ms. F; and (5) Ms. F. After
receiving all of the evidence, the trial court orally rendered its decision to grant
guardianship of Jay to Mr. and Ms. C and entered a temporary order to that effect on
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Opinion of the Court
9 August 2017. The temporary order stated that a final order would be prepared and
entered within thirty days.
On 1 September 2017, before the final order from the hearing was entered,
respondent filed a motion to re-open the evidence for the purpose of presenting expert
testimony. The trial court granted the motion, and a hearing on the motion was held
on 8 November 2017. At the hearing, the trial court heard testimony from two
psychologists regarding the impact on Jay of being removed from the foster home of
Mr. and Ms. C and being placed in the foster home of Mr. A and Ms. F with two of his
half-siblings. Dr. Stephanie Best was called by counsel for respondent. Dr. Ginger
Calloway, who was procured to testify by Mr. and Ms. C, was called by Jay’s GAL
attorney advocate and directly examined by counsel for Mr. and Ms. C. On 12
February 2018, the trial court entered a subsequent permanency planning order
again awarding guardianship of Jay to Mr. and Ms. C. The trial court further ordered
that respondent was to have no face-to-face visitation with Jay, but she could have
telephonic communication with him as monitored by Mr. and Ms. C. Respondent
timely appealed.
_______________________________________
Standing
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IN RE: J.L.
Opinion of the Court
As a preliminary matter, we note that Mr. and Mrs. C’s brief submitted to this
Court is entitled “Guardians-Appellees’ Motion to Dismiss and Brief” and contains a
section requesting that respondent’s appeal be dismissed due to lack of standing.
It is well established that “[m]otions to an appellate court may not be made in
a brief but must be made in accordance with N.C.R. App. P. 37.” Horton v. New South
Ins. Co., 122 N.C. App. 265, 268,
468 S.E.2d 856, 858 (1996) (citation omitted); see
also Smithers v. Tru-Pak Moving Sys.,
121 N.C. App. 542, 545,
468 S.E.2d 410, 412
(1996) (“[The] [d]efendant’s motion to dismiss plaintiff’s appeal is not properly before
us. A motion to dismiss an appeal must be filed in accord with Appellate Rule 37, not
raised for the first time in the brief as defendant has done here.” (citation omitted)).
Because Mr. and Ms. C have not filed a motion to dismiss respondent’s appeal in
accordance with Rule 37, the motion to dismiss contained in their brief is not properly
before this Court.
We are, however, compelled to address whether respondent has standing to
appeal. “Standing is jurisdictional in nature and [c]onsequently, standing is a
threshold issue that must be addressed, and found to exist, before the merits of [the]
case are judicially resolved.” In re T.M., 182 N.C. App. 566, 570,
643 S.E.2d 471, 474
(2007) (alterations in original) (citation omitted). “As the party invoking jurisdiction,”
respondent has the burden of proving that she has standing to file an appeal. In re
T.B.,
200 N.C. App. 739, 742,
685 S.E.2d 529, 532 (2009) (citation omitted).
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IN RE: J.L.
Opinion of the Court
The Juvenile Code provides that an appeal may be taken to this Court from
“[a]ny order, other than a nonsecure custody order, that changes the legal custody of
a juvenile.” N.C. Gen. Stat. § 7B-1001(a)(4) (2017). Under General Statutes, section
7B-1002(4), “[a] parent . . . who is a nonprevailing party” may bring an appeal. Id. §
7B-1002(4) (2017).
In this case, both statutory requirements are satisfied. First, the trial court’s
12 February 2018 permanency planning order awarding guardianship of Jay to Mr.
and Ms. C changed legal custody of Jay from DSS to Mr. and Ms. C. See id. § 7B-
600(a) (2017) (providing, in relevant part, that “[t]he guardian shall have the care,
custody, and control of the juvenile”). Second, respondent is Jay’s parent who was a
“nonprevailing party” below. “A prevailing party is defined as one in whose favor the
decision or verdict is rendered and judgment entered[.]” T.B., 200 N.C. App. at 746,
685 S.E.2d at 534 (alteration in original) (quoting House v. Hillhaven, Inc.,
105 N.C.
App. 191, 195,
412 S.E.2d 893, 896 (1992)). At the subsequent permanency planning
hearing, respondent’s counsel argued that Jay should be placed in the foster home of
Mr. A and Ms. F, and she objected to Mr. and Ms. C being granted guardianship of
Jay. Contrary to respondent’s request, the trial court awarded guardianship of Jay
to Mr. and Ms. C, thereby declining to place him with Mr. A and Ms. F. Because the
trial court failed to grant respondent’s request, she has demonstrated that she was a
nonprevailing party. Cf. id. at 746,
685 S.E.2d at 534 (concluding the maternal
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IN RE: J.L.
Opinion of the Court
grandmother was not a nonprevailing party when the trial court granted her requests
that the paternal grandmother and her husband not be awarded permanent physical
custody and that she be granted visitation privileges).
In support of their argument that respondent lacks standing to challenge the
trial court’s permanency planning order appointing them as Jay’s guardians, Mr. and
Ms. C cite to this Court’s opinion In re C.A.D., 247 N.C. App. 552,
786 S.E.2d 745
(2016). In C.A.D., the respondent-mother argued that the trial court erred by ceasing
reunification efforts in a permanency planning order because her children should
have been placed with their maternal grandparents.
Id. at 563,
786 S.E.2d at 751.
The maternal grandparents were the former custodians of at least one of the juveniles
involved in the case and could have appealed from the order at issue, but they did
not.
Id. at 556,
786 S.E.2d at 747. This Court held that the respondent-mother lacked
standing to raise the argument because she was not aggrieved by the trial court’s
decision, stating:
[T]he maternal grandparents have not appealed the trial
court’s permanency plan. They do not complain of the
court’s findings of fact or conclusions of law, and they do
not complain they were injuriously affected by the trial
court’s decision to pursue adoption. [The] [r]espondent
cannot claim an injury on their behalf. Therefore, she has
no standing to raise . . . [this] claim.
Id. at 563,
786 S.E.2d at 752.
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IN RE: J.L.
Opinion of the Court
The instant case is distinguishable from C.A.D. Here, Mr. A and Ms. F were
not parties to the case and could not have independently appealed from the trial
court’s 12 February 2018 order. See N.C. Gen. Stat. § 7B-1002 (enumerating the
proper parties to take an appeal). Respondent is not attempting to present a claim
on behalf of Mr. A and Ms. F, but instead asserts her own parental interest in having
Jay placed in a foster home with two of his half-siblings. See In re D.S., ___ N.C. App.
___, ___, 817 S.E.2d 901, 904–05 (2018) (holding respondent-father had standing to
contend on appeal that the trial court erred in failing to consider placement with the
paternal grandmother before granting guardianship to a non-relative where paternal
grandmother was never a party to the juvenile case). Accordingly, we conclude that
respondent has standing to bring this appeal.
_______________________________________
On appeal, respondent argues that (I) the trial court erred in permitting Mr.
and Ms. C to contest DSS’s placement recommendation and present evidence as if
they were a party to the case; (II) the expert testimony relied upon by the trial court
was insufficient, unreliable, and too speculative to support its findings; (III) the trial
court erred in failing to indicate that it applied the correct standard of proof in finding
respondent was unfit and had acted inconsistently with her constitutionally protected
status as a parent; and (IV) the trial court erred in failing to establish an appropriate
visitation schedule for respondent. We address each argument in turn.
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IN RE: J.L.
Opinion of the Court
I
First, respondent argues the trial court erred by allowing foster parents Mr.
and Ms. C and their counsel to participate in the proceedings in the manner that it
did, contending the court essentially conferred party status on them in violation of
General Statutes, sections 7B-401.1(e1) and (h). We disagree.
Except in limited circumstances, a foster parent for a juvenile is not a party to
the case and may not be allowed to intervene. See N.C. Gen. Stat. § 7B-401.1(e1), (h)
(2017). However,
[a]t each hearing, the court shall consider information from
the parents, the juvenile, the guardian, any person
providing care for the juvenile, the custodian or agency with
custody, the guardian ad litem, and any other person or
agency that will aid in the court’s review. The court may
consider any evidence, including hearsay evidence as
defined in G.S. 8C-1, Rule 801, or testimony or evidence
from any person that is not a party, that the court finds to
be relevant, reliable, and necessary to determine the needs
of the juvenile and the most appropriate disposition.
N.C. Gen. Stat. § 7B-906.1(c) (emphases added).
It is well settled that “[t]he trial judge has inherent authority to supervise and
control trial proceedings. The manner of the presentation of the evidence is largely
within the sound discretion of the trial judge and his control of a case will not be
disturbed absent a manifest abuse of discretion.” State v. Davis, 317 N.C. 315, 318,
345 S.E.2d 176, 178 (1986). “An abuse of discretion is a decision manifestly
unsupported by reason or one so arbitrary that it could not have been the result of a
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IN RE: J.L.
Opinion of the Court
reasoned decision.” Briley v. Farabow, 348 N.C. 537, 547,
501 S.E.2d 649, 656 (1998)
(citations omitted).
Respondent has failed to show an abuse of discretion by the trial court under
the specific circumstances of this case. The trial court did not allow Mr. and Ms. C to
intervene as parties. Rather, the trial court permitted counsel for Mr. and Ms. C to
facilitate their testimony on direct examination, which was information the court was
required to hear under section 7B-906.1(c). Mr. and Ms. C’s counsel was not afforded
the opportunity to present other witnesses, introduce exhibits, cross-examine
witnesses, lodge objections, or present closing argument as a party to the proceeding
would have been allowed to do. In addition, the GAL attorney advocate specifically
requested that Mr. and Ms. C’s counsel conduct the direct examination of Dr.
Calloway. The trial court apparently determined that information from Dr. Calloway
would “aid in the court’s review” as evidenced by the fact that it re-opened the
evidence for the sole purpose of hearing expert testimony on the impact on Jay of
being removed from the foster home of Mr. and Ms. C and being placed in the foster
home of Mr. A and Ms. F with two of his half-siblings. Mr. and Ms. C’s counsel’s
involvement was limited to asking Dr. Calloway questions on direct and redirect
examination. Again, unlike a party, counsel was not permitted to call other
witnesses, cross-examine the opposing expert witness, lodge objections, or present
closing argument. Because the trial court was statutorily required to hear testimony
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IN RE: J.L.
Opinion of the Court
from the foster parents and any person who would aid in the court’s review, see
N.C.G.S. § 7B-906.1(c), its decision to permit Mr. and Ms. C and their counsel to
participate in the proceedings as it did was not “manifestly unsupported by reason[,]”
Briley, 348 N.C. at 547,
501 S.E.2d at 656. This holding is limited to the specific facts
of this case. Accordingly, respondent’s argument is overruled.
II
Respondent challenges the evidentiary support for the findings of fact in the
12 February 2018 order insofar as the trial court relied upon Dr. Calloway’s
testimony. Respondent contends Dr. Calloway’s testimony should be discounted
because she had not personally evaluated Jay and did not know for certain how Jay
would respond to a move to Mr. A and Ms. F’s home. We disagree.
“[Appellate] review of a permanency planning order is limited to whether there
is competent evidence in the record to support the findings and whether the findings
support the conclusions of law.” In re P.O., 207 N.C. App. 35, 41,
698 S.E.2d 525, 530
(2010) (citation omitted). “The trial court’s findings of fact are conclusive on appeal
when supported by any competent evidence, even if the evidence could sustain
contrary findings.” In re J.H.,
244 N.C. App. 255, 268,
780 S.E.2d 228, 238 (2015)
(citation omitted).
Respondent asserts that Dr. Calloway’s testimony was insufficient, unreliable,
and too speculative to support the following findings of fact:
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IN RE: J.L.
Opinion of the Court
6. . . .
....
c. . . . The members of the [Mr. and Ms. C] family are those
with whom [Jay] identifies by sight, sound and smell, and
has done so for his entire life (thirteen (13) months as of
11-8-2017).
....
e. . . . Having had the opportunity to observe the
appearance, attitude, tone and demeanor of both tendered
experts, the court accredits the testimony of Dr. Ginger
Calloway that in being removed from the only home the
thirteen (13) month old juvenile has ever known, the
juvenile would suffer disruption and some level of mental,
emotional, and psychological trauma. Furthermore, given
his specific age, he would not have the benefit of being able
to process why he was being moved nor would he be able to
articulate his level of mental, emotional and psychological
discomfort.
Citing to two cases involving workers’ compensation claims, respondent insists that
Dr. Calloway’s testimony was speculative and “insufficient to establish a connection
for causal findings by the court.”
In accordance with the Juvenile Code, at a permanency planning hearing,
“[t]he court may consider any evidence, including hearsay evidence as defined in G.S.
8C-1, Rule 801, or testimony or evidence from any person that is not a party, that the
court finds to be relevant, reliable, and necessary to determine the needs of the
juvenile and the most appropriate disposition.” N.C.G.S. § 7B-906.1(c).
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IN RE: J.L.
Opinion of the Court
Dr. Calloway, who reviewed the reports prepared by DSS and GAL for the
August 2017 permanency planning hearing and listened to the audio recording of that
hearing, testified that Jay had seen, smelled, and been cared for by Mr. and Ms. C’s
family for over a year. She agreed that a nine-to-ten month old child could be
expected to have formed an attachment relationship with the people he lived with,
stating that such a relationship begins when the child starts being around people.
When asked about the consequences of moving Jay to another home in light of his
young age, Dr. Calloway specifically opined:
For any child who has, or any baby who has formed
attachments to specific people, loss of those attachments is
like death because this child has relationships already with
the family that he knows, which is the family that he lives
with, and that’s his reality. So you take that child away
from that reality, you’re -- he will suffer. . . . In working
with children, and clinically when I have provided clinical
services to children, I think the children that were maybe
the most touching and moving in some ways are the
children for whom language did not exist when the trauma
happened because the experience of loss and trauma is
every bit as real pre-verbally as it is verbally, but you don’t
have the cognitive or verbal skills to be able to make sense
of it, you don’t have the verbal skills to be able to talk about
it, but it is real nonetheless.
She further opined that removing Jay from Mr. and Ms. C “will cause loss and
trauma.” When asked about the long-term consequences of such loss and trauma, Dr.
Calloway testified:
What the literature suggests is that when children
experience traumas and losses, and when they become
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IN RE: J.L.
Opinion of the Court
removed from the caregivers that they know as infants,
that there can be consequences to their learning in school,
to their self-confidence, to their ability to regulate their
emotions, to even -- there are some studies that even show
antisocial behaviors are characteristics of some children.
So there can be a range of negative consequences, and all
of that, of course, is dependent on what happens to the
child afterwards, meaning after the loss or the trauma.
We conclude that Dr. Calloway’s testimony was sufficient competent evidence to
support the trial court’s findings of fact. Accordingly, we find no error in the
challenged findings.
III
Respondent next argues the trial court erred by failing to indicate it applied
the correct standard of proof in determining that respondent was unfit and had acted
inconsistent with her constitutionally protected status as a parent. We agree.
“[N]atural parents have a constitutionally protected interest in the
companionship, custody, care, and control of their children.” Bennett v. Hawks, 170
N.C. App. 426, 428,
613 S.E.2d 40, 42 (2005) (alteration in original) (quoting Price v.
Howard,
346 N.C. 68, 72,
484 S.E.2d 528, 530 (1997)). “[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). Therefore, “[t]he trial court
must clearly ‘address whether respondent is unfit as a parent or if her conduct has
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Opinion of the Court
been inconsistent with her constitutionally protected status as a parent, should the
trial court . . . consider granting custody or guardianship to a nonparent.’ ” In re K.L.,
___ N.C. App. ___, ___, 802 S.E.2d 588, 597 (2017) (quoting In re P.A.,
241 N.C. App.
53, 66–67,
772 S.E.2d 240, 249 (2015)).
Because the decision to remove a child from a natural
parent’s custody “must not be lightly
undertaken[,] . . . [the] determination that a parent’s
conduct is inconsistent with . . . her constitutionally
protected status must be supported by clear and convincing
evidence.” [Adams v. Tessener, 354 N.C. 57, 63,
550 S.E.2d
499, 503 (2001)]. . . . “Clear and convincing” evidence is an
intermediate standard of proof, greater than the
preponderance of the evidence standard applied in most
civil cases, but not as stringent as the requirement of proof
beyond a reasonable doubt required in most criminal
cases.” In re Montgomery, 311 N.C. 101, 109-10,
316 S.E.2d
246, 252 (1984).
In re E.M., ___ N.C. App. ___, ___,
790 S.E.2d 863, 874 (2016) (alterations in original).
“While this analysis is often applied in civil custody cases under Chapter 50 of the
North Carolina General Statutes, it also applies to custody awards arising out of
juvenile petitions filed under Chapter 7B.” In re D.M.,
211 N.C. App. 382, 385,
712
S.E.2d 355, 357 (2011) (citation omitted).
Here, the trial court found that respondent was unfit to have custody of Jay,
and that she had acted “against her constitutionally protected interest” as a parent.
The trial court’s order, however, fails to indicate that it applied the clear and
convincing evidence standard in making these determinations. In addition, careful
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Opinion of the Court
review of the transcript reveals that the trial court did not state the appropriate
standard in open court on the record. “Absent an indication that the trial court
applied the clear and convincing standard in this case, we reverse the order of the
trial court and remand this case for findings of fact consistent therewith.” Bennett,
170 N.C. App. at 429,
613 S.E.2d at 42; see also David N.,
359 N.C. at 307,
608 S.E.2d
at 754 (reversing and remanding for finding consistent with the clear and convincing
standard, where the trial court “failed to apply the clear and convincing evidence
standard as set forth in Adams in making th[e] determination” that the defendant’s
conduct was inconsistent with a natural parent’s constitutionally protected interest).
IV
Lastly, respondent argues the trial court erred in failing to establish an
appropriate visitation schedule for her. Her contentions are three-fold: (1) the trial
court’s order contains inconsistent provisions regarding visitation; (2) the trial court’s
findings were insufficient to support a denial of visitation; and (3) the trial court failed
to inform her of her right to file a motion to review the visitation plan, in violation of
N.C. Gen. Stat. § 7B-905.1(d) (2017). We conclude the trial court’s findings
concerning visitation were not inconsistent and were sufficient to support a denial of
visitation. However, we agree that the trial court failed to comply with N.C. Gen.
Stat. § 7B-905.1(d).
A. Provisions Regarding Visitation
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Opinion of the Court
Respondent contends that the trial court’s 12 February 2018 order contains
inconsistent provisions regarding visitation. We disagree.
In its 12 February 2018 its order, the trial court determined that “[t]he
following rights and responsibilities remain with [respondent]: all rights of
inheritance, financial responsibility and visitation.” However, pursuant to General
Statutes, section 7B-905.1(a), when considering what visitation schedule would be in
Jay’s best interest consistent with his health and safety, the court ordered that
respondent was to have no visitation with Jay.3 See N.C. Gen. Stat. § 7B-905.1(a)
(2017).
We do not believe these provisions are inconsistent. Although labeled as a
finding of fact, the trial court’s determination that the right of visitation remained
with respondent is a conclusion of law. See In re Helms, 127 N.C. App. 505, 510,
491
S.E.2d 672, 675 (1997) (“As a general rule, . . . any determination requiring the
exercise of judgment or the application of legal principles is more properly classified
as a conclusion of law.” (citations omitted)). This conclusion follows the trial court’s
determination that Mr. and Ms. C should be appointed Jay’s guardians, and it
3 Specifically, the trial court ordered that respondent was to have no face-to-face visitation
with Jay, but that she could have telephonic communication with him as monitored by Mr. and Ms. C.
This Court has previously held that electronic communication may supplement visitation, but it is not
a replacement or substitute for in-person contact. In re T.R.T., 225 N.C. App. 567, 573-74,
737 S.E.2d
823, 828 (2013) (concluding that videoconferencing was not visitation). As a result, an order that
provides only for electronic communication effectively denies a respondent-parent visitation. See
id.
at 574,
737 S.E.2d at 829. Therefore, in this case, the trial court effectively denied respondent
visitation when it prohibited face-to-face visitation but instead allowed respondent to communicate
with Jay via telephone as monitored by Mr. and Ms. C.
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Opinion of the Court
conveys the parental status that respondent retained following that determination.
The trial court’s conclusion that respondent was a parent whose status conveyed a
right to visitation was subject to the trial court’s determination of the scope and
duration of visitation “as may be in the best interest[] of the juvenile consistent with
the juvenile’s health and safety.” N.C.G.S. 7B-905.1(a). We hold the trial court’s
visitation provisions on this point are not inconsistent; therefore, respondent’s
argument is overruled.
B. Denial of Visitation
Respondent contends the trial court’s findings in its 12 February 2018 order
were insufficient to support a denial of visitation. We disagree.
An order which continues placement outside of a parent’s home “shall provide
for appropriate visitation as may be in the best interest[] of the juvenile consistent
with the juvenile’s health and safety.” N.C. Gen. Stat. § 7B-905.1(a). Conversely, the
court may prohibit visitation or contact by a parent when it is in the juvenile’s best
interest consistent with the juvenile’s health and safety. See id.; see also In re J.S.,
182 N.C. App. 79, 86–87,
641 S.E.2d 395, 399 (2007) (affirming the order of the trial
court that there be no contact between the respondent-father and J.S. where the
evidence indicated that the respondent-father physically abused the juvenile daily).
This Court reviews an order disallowing visitation for abuse of discretion. In re C.M.,
183 N.C. App. 207, 215,
644 S.E.2d 588, 595 (2007).
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IN RE: J.L.
Opinion of the Court
[I]n the absence of findings that the parent has forfeited
[his or her] right to visitation or that it is in the child’s best
interest to deny visitation[,] the court 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. As a
result, even if the trial court determines that visitation
would be inappropriate in a particular case or 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 plan would be inappropriate in light of the specific facts
under consideration.
In re K.C., 199 N.C. App. 557, 562,
681 S.E.2d 559, 563 (2009) (alterations in original)
(citation omitted).
Here, the trial court made the ultimate finding that visitation would be
inappropriate and not in Jay’s best interest consistent with his health and safety.
This ultimate finding is supported by the trial court’s evidentiary findings, which
include the following: (1) respondent had a long history with CPS that resulted in
the removal of her three older children; (2) the “protective issues” identified with
respect to Jay were similar to the issues which resulted in the removal of the older
children; (3) DSS developed a case plan with respondent to address issues related to
substance abuse, domestic violence, mental health, parenting, and stable housing and
employment, but respondent was “only minimally participating in services to resolve
the protective issues and is not able to demonstrate knowledge gained”; (4)
respondent had not utilized any visitation since 23 February 2017; and (5) respondent
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IN RE: J.L.
Opinion of the Court
had signed a relinquishment of her parental rights to Jay. Based on these findings,
the trial court did not abuse its discretion in concluding visitation with respondent
was not in Jay’s best interest consistent with his health and safety. Therefore,
respondent’s argument is overruled.
C. Notice of Right to Review Pursuant to N.C. Gen. Stat. § 7B-905.1(d)
Respondent argues that the trial court committed reversible error by failing to
inform her of her right to file a motion to review the visitation plan, in violation of
General Statutes, section § 7B-905.1(d).
Section 7B-905.1(d) states that “[i]f the court retains jurisdiction, all parties
shall 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) (2017) (emphasis added).
Here, the trial court did not waive future review hearings and retained jurisdiction
over Jay’s case. However, in its order, the trial court did not notify respondent of her
right to file a motion for review of the visitation plan. In addition, careful review of
the transcript reveals that the trial court did not inform respondent of this right in
open court on the record. Accordingly, we vacate the trial court’s visitation order and
remand for an order compliant with N.C. Gen. Stat. § 7B-905.1(d). See In re J.S., No.
COA16-1039, 2017 WL 2119415, at *8 (N.C. Ct. App. May 16, 2017) (unpublished)
(vacating the trial court’s visitation order for failure to inform parties of the right to
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IN RE: J.L.
Opinion of the Court
file a motion for review and remanding for entry of an order compliant with N.C. Gen.
Stat. § 7B-905.1(d)).
Conclusion
We hold the trial court erred in (1) failing to state it applied the correct
standard of proof in determining respondent was unfit as a parent and had acted
inconsistent with her constitutionally protected status as a parent; and (2) failing to
notify respondent of her right to file a motion for review of the visitation plan, as
required by General Statutes, section 7B-905.1(d). We vacate those portions of the
12 February 2018 subsequent permanency planning order and remand for further
proceedings consistent with this opinion. The order is otherwise affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judge ARROWOOD concurs.
Judge DIETZ concurs with separate opinion.
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No. COA18-473 – In re: J.L.
DIETZ, Judge, concurring.
I agree with the majority’s statement that “motions may not be made in a brief”
filed with this Court. The Rules of Appellate Procedure impose different rules for
motions and briefs and, for that reason, the two should not be joined in a single filing.
I write separately to emphasize that this rule does not prohibit an appellee from
arguing in a brief that the appeal should be dismissed, whether for lack of appellate
jurisdiction or any other reason. Both the Rules of Appellate Procedure and our
precedent permit litigants to argue in their briefs that the proper disposition of an
appeal, or some portion of it, is dismissal.
