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In re M.T.L.Y.

Court of Appeals of North Carolina

May 21, 2019

IN THE MATTER OF: M.T.-L.Y.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by respondent-mother from order entered 18 April 2018 by Judge Laurie L. Hutchins in Forsyth County No. 17JT3 District Court.

          Erica Glass for petitioner-appellee Forsyth County Department of Social Services.

          Parent Defender Wendy Sotolongo, by Assistant Parent Defender Jacky Brammer, for respondent-appellant mother.

          Parker Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for guardian ad litem.

          INMAN, JUDGE.

         Respondent-mother ("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.[1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The record reflects the following facts:

         On 29 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 involved.

         Father 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.

         On 21 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.

         Following 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.

         Although 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.

         Mother 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.

         Mother's 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[2] house in Winston-Salem and that he employed her to do office work in his real estate business.

         In 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.

         After a 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.

         During 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 January 2017.

         Mother 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.

         In June 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.

         On 8 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.[3] 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.

         Between 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.

         On 25 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.

         On 9 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 ...


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