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In re D.A.

Court of Appeals of North Carolina

March 6, 2018

IN THE MATTER OF: D.A.

          Heard in the Court of Appeals 15 February 2018.

         Appeal by respondents from order entered 12 May 2017 by Judge Sarah C. Seaton in Onslow County District Court County, No. 14 JA 194

          Richard Penley for petitioner-appellee Onslow County Department of Social Services.

          Miller & Audino, LLP, by Jay Anthony Audino, for respondent-appellant mother.

          Julie C. Boyer for respondent-appellant father.

          Parker Poe Adams & Bernstein LLP, by E. Bahati Mutisya, for guardian ad litem.

          TYSON, Judge.

         Respondent-parents appeal from an order granting full physical and legal custody of their child, D.A., to court-approved caretakers. We vacate and remand.

         I. Background

         Respondents are married and both serve as active-duty marines in the United States Marine Corps. D.A. was born in June 2014. On 9 July 2014, Respondents sought medical treatment for D.A. after Respondent-father observed dried blood in D.A.'s mouth and nose. D.A. was hospitalized for over two weeks while being treated for a pulmonary hemorrhage.

         Respondents sought further medical care for D.A. on 16 September 2014. D.A. was evaluated for possible maltreatment and a blood disorder. A skeletal survey revealed a healing rib fracture, which was not present in an earlier skeletal survey in July 2014. After a medical evaluation, D.A. was diagnosed as suffering from child physical abuse.

         Following an investigation by law enforcement, Respondent-mother was charged with felony assault inflicting serious bodily injury, felony child abuse, and misdemeanor contributing to the delinquency of a juvenile. Respondent-father was charged with misdemeanor contributing to the delinquency of a juvenile. Respondent-mother subsequently pled guilty to misdemeanor child abuse. Respondent-father's charge was dismissed.

         On 22 September 2014, the Onslow County Department of Social Services ("DSS") filed a juvenile petition, alleging that D.A. was abused and neglected. DSS obtained nonsecure custody of D.A. the same day. Following a hearing, the trial court entered an order on 15 June 2015 adjudicating D.A. as an abused and neglected juvenile. Respondents were ordered to submit to mental health and psychological evaluations, follow all resulting recommendations, and complete parenting classes. The trial court held a permanency planning hearing on 13 January 2016, after which the court entered an order establishing a primary permanent plan of reunification "with a parent, with a secondary plan of custody with a relative or court-approved caretaker." After a 31 August 2016 permanency planning hearing, the trial court entered an order on 12 May 2017, which granted custody of D.A. to his foster parents and waived further review. Respondents timely filed notice of appeal.

         II. Issues

         Respondent-father contends the trial court erred by: (1) finding and concluding that he had acted inconsistently with his constitutionally protected status as a parent; (2) finding that returning the juvenile to the home of his parents would be contrary to the juvenile's best interests; (3) placing the juvenile in the custody of the foster parents as the most reasonable permanent plan; and, (4) ruling that it would be in the best interests of the juvenile for him to be placed in the full legal and physical custody of the foster parents.

         Respondent-mother contends: (1) the trial court's findings were not supported by clear, cogent, and convincing evidence and it failed to make the necessary findings of fact to cease reunification efforts with Respondent-mother and to grant custody to D.A.'s foster parents; and, (2) the evidence presented at the permanency planning hearing did not support the trial court's finding that ...


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