in the Court of Appeals 13 March 2019.
by respondent-mother from order entered 18 April 2018 by
Judge Laurie L. Hutchins in Forsyth County No. 17JT3 District
Glass for petitioner-appellee Forsyth County Department of
Defender Wendy Sotolongo, by Assistant Parent Defender Jacky
Brammer, for respondent-appellant mother.
Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for
guardian ad litem.
("Mother") appeals, pursuant to N.C. Gen. Stat.
§ 7B-1001(a)(5)a., from the trial court's permanency
planning order and the order terminating her parental rights
over her daughter, Megan. Mother argues that the trial court (1)
violated her constitutional right to effective assistance of
counsel when it denied her attorney's motion for
continuance at the termination hearing; (2) erred in
eliminating reunification as a permanent plan; and (3) erred
by ordering that reunification efforts cease. After careful
review of the record and applicable law, we affirm the trial
court's denial of the motion for continuance and the
order ceasing reunification efforts. But we conclude that
recent precedent requires that we vacate the permanency
planning and termination orders and remand this matter for
further proceedings because the trial court failed to include
reunification as an initial permanent plan.
FACTUAL AND PROCEDURAL BACKGROUND
record reflects the following facts:
July 2016, Megan was born prematurely at 34 weeks to Mother
and Father (collectively "the parents"). At birth,
Megan exhibited abnormalities and the parents were told to
attend follow-up appointments with the pediatrician. After
the parents missed two appointments, the Dare County
Department of Social Services ("DDSS") became
was charged with possession of cocaine on 9 September 2016.
On 12 September 2016, DDSS and Mother agreed to a safety plan
that Father was to only have supervised contact with Megan.
Mother did not follow this plan. She left Megan in
Father's care unsupervised at times when she could not
find suitable care.
September 2016, the Dare County Sheriff's Office arrested
Father pursuant to a warrant and, following a search of the
parents' home, discovered a "marijuana pipe, 10 used
syringes, and a spoon with cocaine residue." The next
day, DDSS and Mother agreed to a new safety plan, stipulating
that, among other things, Father would no longer reside in
the home. Mother again failed to adhere to the safety plan.
She allowed Father to return to their home, prompting DDSS to
file a juvenile petition claiming that Megan was a neglected
juvenile. On 23 September 2016, the trial court ordered that
Megan be placed in non-secure custody with DDSS.
a custody hearing on 3 October 2016, the trial court
continued non-secure custody but placed Megan into the care
of her maternal grandmother, who lived in Winston-Salem,
within Forsyth County. Megan's maternal grandmother was
also caring for Mother's two other juvenile children
stemming from a voluntary placement agreement with DDSS.
Mother was allowed unlimited supervised visitation so long as
it was inside the grandmother's home.
the plan approved by the trial court was for Mother to reside
in Winston-Salem and provide regular care to her two other
children and Megan in their grandmother's home, she did
not follow through. She lived with the grandmother for two
days, but then left, and visited Megan only once between 5
and 20 October. Mother struggled to sustain a proper living
situation and had no contact with DDSS following the custody
hearing until 20 October 2016, when the grandmother fell ill
and could no longer care for the children. DDSS assumed care
of Megan and placed her into her former foster care home.
and Father then stipulated that Megan was a neglected
juvenile pursuant to Section 7B-101(15) of our General
Statutes. On 14 November 2016, after an adjudication hearing,
the trial court adjudicated Megan neglected and ordered that
she remain in non-secure custody of DDSS. Mother was allowed
"at least one visit" with Megan before a December
dispositional hearing date and any other visits "as may
be arranged," on the conditions she participate in
mental health and substance abuse treatment services, undergo
psychological evaluations, refrain from consumption of
alcohol and drugs, submit to drug testing, establish stable
housing, and maintain regular communication with DDSS.
living and work circumstances reportedly improved, although
they were not verified to the trial court or DDSS. Mother
told DDSS that she rented a room in her
uncle's house in Winston-Salem and that he
employed her to do office work in his real estate business.
January 2017, the trial court transferred Megan's case to
Forsyth County, concluding that Dare County was an
inconvenient forum, and the Forsyth County Department of
Social Services ("FDSS") substituted for DDSS and
placed Megan in a new foster home.
hearing in February 2017, the trial court on 17 April 2017
ordered that non-secure custody remain with FDSS but that
reunification efforts continue. The trial court ordered that
for Mother to regain full custody of Megan, she was required
to, among other things, abstain from consuming drugs and
alcohol; perform any drug screening requested by FDSS, with a
refusal to cooperate being interpreted as a positive result;
submit to psychological evaluations; notify foster care
within 24 hours of any change in her employment or household
status; arrange a family services agreement to work toward
reunification; participate in Megan's medical
appointments; comply with the visitation plan of two visits
per week at Megan's daycare under a social worker's
supervision; complete parenting classes; and confirm her
employment and wages.
the next hearing, on 8 May 2017, FDSS introduced evidence
that Mother had failed to comply with the court-ordered
conditions to regain custody of Megan. Specifically, Mother
(1) had not enrolled in or completed any parenting classes;
(2) often missed, was late to, or canceled visitation
appointments with Megan; and (3) did not fully cooperate with
drug testing. Mother's urine tested positive for cocaine
in February 2017, and she did not attend a February hair
testing appointment, saying she did not think she had to go
because she was required to complete a substance abuse
assessment from the previous positive test. In March, Mother
successfully completed a urine test but not a hair test.
Although she stated previously that she had completed hair
testing for Dare County, she told the trial court that she
did not perform the hair test because she had never done it
before. When confronted by FDSS, Mother then explained that
her adherence to the religion of Islam prevented her from
performing the hair tests because the test required her to
cut her hair; but FDSS reported that Mother "does cut,
color and not cover her hair." Mother maintained to FDSS
that she was being financially supported by her uncle and was
remodeling the older home and planned for her family to live
there. She also stated that her uncle had promoted her to the
position of vice president of his company and had increased
her responsibilities and salary. However, Mother failed to
provide any verification of the hours she worked, her salary,
or her job title. Furthermore, Megan's social worker
learned from a relative and one of Mother's older
children's teachers that Father had been seen residing in
Mother's home and picking up the child from school in
did not arrive at the hearing until near the end, after FDSS
had introduced evidence and the trial court announced its
ruling from the bench to continue custody with FDSS. By
written order on 12 July 2017, the trial court kept custody
with FDSS and conditioned reunification with Megan on
Mother's cooperation with all of the trial court's
previously ordered conditions. The order also included
findings of fact adopting the evidence presented by FDSS.
2017, Mother notified Megan's social worker via email
that her father was diagnosed with a terminal illness, and
she traveled with her two other children to Georgia to care
for him. Sometime between the end of July and early
September, Mother emailed to her attorney that her
father's health had deteriorated and that she no longer
had a support system in Winston-Salem as she could not live
in her uncle's home or work for his real estate business
anymore. Mother wrote in July that she was living in a motel
in Portsmouth, Virginia, and that she was receiving
counseling in Chesapeake, VA for her anxiety and depression.
She did not have a phone until the first week of September
after starting a job at a Waffle House. Though she explained
that she was in dire straits, Mother told her attorney she
intended to attend the next hearing in September and
requested that it be continued one week.
September 2017, the trial court convened the first and only
permanency planning hearing. Mother did not attend.
Mother's attorney requested a continuance, arguing that
additional time was needed because Mother was still out of
state and wanted to send information relevant to the trial
court's permanent plan via facsimile. After FDSS objected
to the motion, Mother's attorney agreed for the hearing
to start that day but requested that it be "continue[d]
 in progress." Mother's attorney advised the trial
court that she had spoken with Mother on the phone that
morning as well as the day before, and, prior to that, their
last contact was by email in July. Megan's social worker
also stated to the trial court that her last line of
communication with Mother was between 27 and 29 June 2017,
when she notified Mother of Megan's ear surgery. The
trial court summarily denied the motion.
the May and the September hearings, Mother attended only
three of 37 scheduled visits with Megan, one of which she
attended for 12 minutes. She last visited Megan in June.
Mother never verified that she completed a substance abuse
assessment; complied with drug testing for over three months;
participated in Megan's medical appointments for June,
July, and August 2017; notified foster care within 24 hours
of any change in employment or household status; or complied
with the family services agreement formulated in February.
October 2017, following the permanency planning hearing, the
trial court found that there was a "slim likelihood of
reunification" between Mother and Megan as she was (1)
"not making adequate progress within a reasonable period
of time;" (2) not "actively participating in or
cooperating with the plan;" (3) not available to the
trial court for hearings; and (4) "acting in a manner
inconsistent with the health or safety" of Megan. The
trial court ordered that FDSS cease reunification efforts and
ordered that the primary permanent plan for Megan be
adoption, with a secondary plan of guardianship.
February 2018, the trial court heard FDSS's motion to
terminate Mother's parental rights regarding Megan, with
Mother in attendance. Mother's attorney again motioned
for a continuance, arguing that she had little contact with