IN RE: A.W. (2023)

Respondent-mother appeals from a permanency planning order awarding custody of A.W. (“Aiden”)¹ to Mr. and Mrs. D and transferring the juvenile matter to civil court. Based on the reasons stated herein, we affirm.

I. Background

Aiden was born in March 2007. He is one of respondent's six children.²

On 12 April 2021, Craven County Department of Social Services filed a petition alleging Aiden to be an abused, neglected, and dependent juvenile. The petition alleged that on 29 September 2020, Aiden's minor sibling pointed a hunting rifle at his stepfather while the stepfather and respondent were involved in an altercation.³ In October 2020, the family was evicted from their home, and Aiden was placed with a temporary safety provider, Mr. and Mrs. D, until stable housing could be obtained. That same month, respondent obtained a domestic violence protective order (“DVPO”) against the stepfather. The DVPO complaint alleged that the stepfather had threatened to stab one of Aiden's siblings in the throat with keys, and in August 2020, a different sibling had fought with the stepfather on two occasions while trying to protect respondent. The children reported to a social worker that respondent had allowed the stepfather to enter the home in violation of the DVPO. The children also reported witnessing respondent and stepfather using cocaine, marijuana, and excessive amounts of alcohol. Aiden's sibling reported “exchanging a sum of $80.00, for Marijuana for [respondent].”

The petition further alleged that respondent had been involuntarily committed and/or attempted suicide on several occasions, the most recent incidents occurring on 17 November 2020 and 22 January 2021. She had been diagnosed with post-traumatic stress disorder, major depression recurrent, and borderline personality disorder. She also had a history of substance abuse and diagnoses related to alcohol, cannabis, and cocaine. Pursuant to a custody order that was entered 5 September 2013, Aiden's biological father has had no visitation or legal custody of Aiden and was not ordered to pay child support. Aiden's biological father's whereabouts were unknown, and he was not able to offer any care for Aiden.⁴

By order entered 27 May 2021, the matter was transferred to Jones County Department of Social Services (“DSS”). While still placed with Mr. and Mrs. D, on 16 August 2021, DSS obtained nonsecure custody of Aiden. Respondent was authorized to have a minimum of one hour of supervised visitation every other week.

Following a hearing on 12 October 2021, the trial court entered an order on 9 December 2021 adjudicating Aiden to be neglected and dependent. The trial court held the dispositional hearing on 14 December 2021 and entered an order on 26 January 2022 continuing DSS's custody of Aiden. Respondent was ordered to maintain a home free of domestic violence; obtain and maintain suitable, stable housing; obtain and maintain employment and provide income verification to DSS; complete a parental fitness evaluation and comply with recommendations; submit to random drug and alcohol screening and re-enroll in a substance abuse treatment if positive for any controlled substance; complete a domestic violence assessment and follow recommendations; notify DSS of all members of her household; comply with the recommendations of the children's therapists; inform DSS and the guardian ad litem (“GAL”) of any changes in address or phone number; cooperate with and maintain in regular contact with DSS and the GAL; and have visitation with Aiden.

Following a permanency planning hearing on 11 January 2022, the trial court entered an order on 27 January 2022. The trial court found that respondent had been compliant and maintained regular contact with DSS and the GAL. Respondent had yet to complete a parental fitness evaluation or domestic violence assessment but had agreed to do so by February 2022. She had not submitted to a drug screen or provided income verification to DSS. Respondent had not visited with Aiden, because he had elected to not participate in any visitation with respondent. The trial court continued Aiden's custody with DSS, and Aiden's placement with Mr. and Mrs. D was continued. The trial court authorized respondent to have a visitation with Aiden a minimum of one hour per month.

Following a permanency planning hearing on 10 May 2022, the trial court entered an order on 17 August 2022. The trial court found that although respondent had completed a danger assessment and maintained employment, she had not completed a parental fitness evaluation, submitted to random drug screens, notified DSS of all household members, or permitted DSS to verify her current address. Respondent had advised, through counsel, that she did not intend to participate in her case plan. Aiden continued to indicate he did not wish to visit with respondent. The trial court found that placement with Aiden's biological father was not in Aiden's best interests because he was currently thriving with Mr. and Mrs. D and a change of placement would be disruptive and harmful to him. The trial court ceased reunification efforts and authorized respondent to have visitation with Aiden a minimum of four hours per month. The permanent plan was set as custody to a relative or other suitable person, with a secondary plan of legal guardianship.

On 15 September 2022, the trial court entered an order finding respondent to be incompetent in accordance with N.C.G.S. § 1A-1, Rule 17, and appointing a GAL to represent her.

The trial court held a permanency planning hearing on 20 September 2022. Respondent was present at the beginning of the hearing but left the courtroom before the conclusion of the proceedings. On 29 September 2022, the trial court entered an order finding that respondent had declined to submit to random drug screens requested by DSS in March, May, and September of 2022. Respondent had not exercised visitation with Aiden, respecting his wishes for no visitation with his mother. She was not actively participating in her case plan and was not available to the court, DSS, or GAL for Aiden. The trial court granted Mr. and Mrs. D custody of Aiden and ordered that respondent have no visitation with Aiden. The trial court ordered that the juvenile court's jurisdiction should be terminated and transferred the case to a civil action under Chapter 50 of the North Carolina General Statutes. Respondent appeals.

II. Analysis

On appeal, respondent challenges several findings of fact as being unsupported by the evidence, argues that the trial court erred in failing to award her visitation with Aiden, and contends the trial court failed to comply with the statutory requirements of N.C.G.S. § 7B-911 when it terminated the jurisdiction of the juvenile court and transferred the matter to civil court. We address each argument in turn.

A. Standard of Review

This Court's 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. 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.S., 250 N.C. App. 370, 372 (2016). Unchallenged findings are binding on appeal. In re T.N.H., 372 N.C. 403, 407 (2019). Conclusions of law are reviewed de novo. In re J.T., 252 N.C. App. 19, 20 (2017).

B. Challenged Findings of Fact

Respondent challenges several findings as not being supported by the evidence. First, respondent contests the portion of finding of fact 19 which provides that DSS attempted random drug screens on 22 March 2022, 2 May 2022, and 14 September 2022 but that respondent had “declined participation.” However, DSS social worker Zalyce Morgan testified at the 20 September 2022 permanency planning hearing that respondent refused to participate in any drug screens. Ms. Morgan testified that she conducted a home visit on 22 March 2022, and respondent “came to the door and informed [DSS] that she would not be allowing a home visit or drug screening.” Ms. Morgan requested respondent to submit to a random drug screen on 2 May 2022, but Ms. Morgan “did not receive a response[.]” Ms. Morgan also testified that on 14 September 2022, she again requested a random drug screen, and respondent “refused.” We hold that the foregoing competent evidence supports the challenged portion of finding of fact 19.

Next, respondent challenges the portion of finding of fact 20 which provides that respondent “ha[d] advised the court through her counsel that she does not want to comply with DSS or a case plan” and the portions of findings of fact 24 and 30 which provide that respondent “has refused to participate in her case plan to address barriers to effective parenting, failed to engage in visitation to create and/or maintain the familial bond, and failed to demonstrate her ability to provide a safe, stable living environment for the juveniles.” She concedes that while she advised the court at the 10 May 2022 permanency planning hearing that she did not want to comply with DSS or her case plan, by the time of the 20 September 2022 hearing, she had re-engaged in services. We are not persuaded.

Ms. Morgan testified that in May 2022, respondent informed DSS that she no longer wanted to work on her case plan. Ms. Morgan further testified that while respondent's stance had not changed, respondent had contacted her in August 2022 expressing interest in visiting two of her other children, Aiden's half-siblings, who were in DSS custody. Respondent had visited with Aiden's half-siblings on three occasions since January 2022. Outside of these three visits with children who are not subjects of this appeal, there is no competent evidence to support respondent's claim that she re-engaged in services by the time of the 20 September 2022 hearing. As part of her case plan, respondent agreed to address domestic violence, mental health, housing, employment, parenting, and substance abuse concerns. She also agreed to cooperate and maintain regular contact with DSS and the children's GAL. However, Ms. Morgan testified that respondent had not made herself available for any home visits, had not been compliant with her mental health treatment, had not participated in substance abuse treatment, and had refused to participate in any drug screens. Ms. Morgan opined that respondent was not making any progress to address the circumstances that caused Aiden to be removed from her care. Thus, respondent's challenges to these findings fail.

Lastly, respondent challenges the portions of finding of fact 30 which provide that she was “not making adequate progress within a reasonable time under the plan[,]” was “not actively participating in or cooperating with the plan, [DSS], and the [GAL] for [Aiden,]” and did not “remain available to the court, [DSS], and the [GAL] for [Aiden].” She contends that she attended court, that Ms. Morgan testified respondent was available to DSS and the GAL, and that “everyone recognized” that respondent had re-engaged in services by the time of the 20 September 2022 hearing. We do not agree.

As previously addressed, there is no competent evidence to support respondent's claim that she had re-engaged in services at the time of the 20 September 2022 permanency planning hearing. Moreover, while Ms. Morgan testified that respondent had communicated with DSS and the GAL “about requesting visitation and attended C[F]Ts and permanency planning meetings” and had communicated to DSS that she did not want her children to be placed with paternal relatives, Ms. Morgan also testified that respondent had not made herself available to DSS for home visits and had refused to participate in drug screens requested by DSS. Therefore, despite some evidence that respondent was communicating with DSS and the GAL in limited circumstances, competent evidence supports the trial court's finding that she was not actively cooperating with and remaining available to DSS and the GAL. See In re J.S., 250 N.C. App. at 372.

C. Denial of Visitation

Respondent argues that the trial court erred in failing to award her visitation with Aiden when she did not forfeit visitation and respected his wishes not to see her. She contends that the trial court was required to enter a minimum visitation schedule. We disagree.

A trial court order “that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for visitation that is in the best interests of the juvenile consistent with the juvenile's health and safety, including no visitation.” N.C.G.S. § 7B-905.1(a) (2021). “The order must establish a visitation plan for parents unless the trial court finds that the parent has forfeited their right to visitation or that it is in the child's best interest to deny visitation.” In re N.L.M., 283 N.C. App. 356, 372 (2022) (cleaned up). “[T]he court must make appropriate findings to support an order denying visitation.” In re N.K., 274 N.C. App. 5, 11 (2020).

“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.” In re A.J.L.H., 384 N.C. 45, 57 (2023). “An abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” In re T.L.H., 368 N.C. 101, 107 (2015) (cleaned up).

Here, the trial court's findings show that Aiden was adjudicated to be a neglected and dependent juvenile on 12 October 2021. By the time of the 20 September 2022 permanency planning hearing, respondent was not making adequate progress under her case plan. She was not actively participating in her case plan or cooperating with DSS and Aiden's GAL. The findings show that DSS attempted home visits in March and April 2022 and random drug screens in March, May, and September of 2022, but respondent had not made herself available for those home visits and had declined to participate in the drug screens. The trial court found that she had acted inconsistently with her constitutionally protected parental status by failing to address the “barriers to effective parenting” and failing to “demonstrate her ability to provide a safe, stable living environment” for Aiden. Furthermore, Aiden had “consistently indicated [that] he does not want to visit with his mother” and was “thriving in his current placement[.]” The trial court concluded that visitation with respondent was not in Aiden's best interests and ordered that she have no visitation with Aiden. The foregoing findings support the trial court's conclusion of law that visitation with respondent was not in Aiden's best interests, and accordingly, we hold that the trial court did not abuse its discretion in denying visitation. See In re N.L.M., 283 N.C. App. at 367–77 (affirming denial of visitation where the findings showed, inter alia, that the respondent had not followed through with recommended psychiatric care, had complied with only some of his case plan tasks, and had not signed releases to allow DSS to learn about his participation in counseling).

D. Transfer of Jurisdiction Under N.C.G.S. § 7B-911

In her final argument, respondent asserts that the trial court failed to comply with the statutory requirements of N.C.G.S. § 7B-911 when it terminated the jurisdiction of the juvenile court and transferred the matter to civil court. We are not convinced.

“In certain cases which have originated as abuse, neglect, or dependency proceedings under Chapter 7B of the General Statutes, a time may come when involvement by [DSS] is no longer needed and the case becomes a custody dispute between private parties which is properly handled pursuant to the provisions of Chapter 50.” Sherrick v. Sherrick, 209 N.C. App. 166, 169 (2011). N.C.G.S. § 7B-911 sets out the procedure for transferring a Chapter 7B juvenile proceeding to a Chapter 50 civil action and states as follows:

(a) Upon placing custody with a parent or other appropriate person, the court shall determine whether or not jurisdiction in the juvenile proceeding should be terminated and custody of the juvenile awarded to a parent or other appropriate person pursuant to G.S. 50-13.1, 50-13.2, 50-13.5, and 50-13.7.

(b) When the court enters a custody order under this section, the court shall either cause the order to be filed in an existing civil action relating to the custody of the juvenile or, if there is no other civil action, instruct the clerk to treat the order as the initiation of a civil action for custody ․

(c) When entering an order under this section, the court shall satisfy the following:

(1) Make findings and conclusions that support the entry of a custody order in an action under Chapter 50 of the General Statutes or, if the juvenile is already the subject of a custody order entered pursuant to Chapter 50, makes findings and conclusions that support modification of that order pursuant to G.S. 50-13.7.

(2) Make the following findings:

a. There is not a need for continued State intervention on behalf of the juvenile through a juvenile court proceeding.

b. At least six months have passed since the court made a determination that the juvenile's placement with the person to whom the court is awarding custody is the permanent plan for the juvenile, though this finding is not required if the court is awarding custody to a parent or to a person with whom the child was living when the juvenile petition was filed.

N.C.G.S. § 7B-911 (2021). “We review an order's compliance with statutory requirements de novo.” In re S.M.L., 272 N.C. App. 499, 517 (2020) (citation omitted).

In the present case, respondent first contends that the 29 September 2022 permanency planning order fails to address “some of the key requirements that would support an initial custody order in Chapter 50.” However, she does not identify what “key requirements” are lacking and does not further elaborate on this issue. Rule 28(a) of the North Carolina Rules of Appellate Procedure requires parties to “define clearly the issues presented” and “to present the arguments and authorities upon which the parties rely in support of their respective positions[.]” N.C.R. App. P. 28(a). Otherwise, “[i]ssues not presented and discussed in a party's brief are deemed abandoned.” N.C.R. App. P. 28(a). Moreover, “[i]t is not the duty of this Court to peruse the record, constructing an argument for appellant.” Person Earth Movers, Inc. v. Thomas, 182 N.C. App. 329, 333 (2007). Because respondent fails to present any arguments regarding how the 29 September 2022 falls short of constituting an initial custody order under Chapter 50, we deem this challenge abandoned. N.C.R. App. P. 28(a), (b)(6).

Next, respondent contends that the 29 September 2022 order fails to address that there is not a need for continued State intervention or that at least six months have passed since the court made a determination that the juvenile's placement with the person to whom the court is awarding custody is the permanent plan, in violation of N.C.G.S. § 7B-911(c)(2). However, her arguments are meritless. In the decretal section of the 29 September 2022 order, the trial court addressed whether there was a need for continued State intervention:

14. Jurisdiction in the juvenile proceeding regarding [Aiden] should be terminated. There is not a need for continued State intervention on behalf of the juvenile, [Aiden], through a juvenile court proceeding. [Aiden] was living with [Mr. and Mrs. D] when the juvenile petition was filed.

15. The Court instructs the clerk to treat this order as the initiation of a civil action for custody of [Aiden]. The parties are designated as [Mr. and Mrs. D], plaintiff, versus, [respondent and the stepfather], defendants.

․

17. This order shall constitute a custody determination regarding [Aiden], and any motion to enforce or modify the custody order shall be filed in the newly created civil action in accordance with the provisions of Chapter 50 of the General Statues.

Furthermore, the trial court was not required to make a finding that at least six months have passed since the court made a determination that Aiden's placement with Mr. and Mrs. D is the permanent plan because Aiden was living with Mr. and Mrs. D, who were acting as a temporary safety provider, when the juvenile petition was filed. Subsection (c)(2) of N.C.G.S. § 7B-911 specifically provides that this finding is “not required if the court is awarding custody to ․ a person with whom the child was living when the juvenile petition was filed.” N.C.G.S. § 7B-911(c)(2). Therefore, we reject respondent's argument that the trial court failed to comply with the requirements of N.C.G.S. § 7B-911.

III. Conclusion

For the foregoing reasons, we affirm the 29 September 2022 permanency planning order.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   A pseudonym is used throughout the opinion to protect the identity of the juvenile and for ease of reading.

2.   None of the other children are subjects of this appeal.

3.   The stepfather is not a party to this appeal. He died on 25 December 2021.

4.   Aiden's biological father is not a party to this appeal.

PER CURIAM.