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In re J.T.S.

Court of Appeals of North Carolina

October 15, 2019

IN THE MATTER OF: J.T.S. and S.C.S.

          Heard in the Court of Appeals 3 September 2019.

          Appeal by Respondent-mother from order entered 17 August 2018 by Judge Larry D. Brown, Jr. in Alamance County District Court. Nos. 18 JA 51, 09 JA 184

          Jamie L. Hamlett for Petitioner-appellee Alamance County Department of Social Services.

          Deputy Parent Defender Annick Lenoir-Peek and Parent Defender Wendy C. Sotolongo for Respondent-appellant.

          Parker Poe Adams & Bernstein LLP, by Fern A. Paterson, for guardian ad litem.

          McGEE, Chief Judge.

         Respondent, the mother of J.T.S. and S.C.S., appeals from a permanency planning order in which the trial court eliminated reunification as a permanent plan and awarded guardianship of J.T.S. and S.C.S. to their maternal grandparents. Respondent contends the trial court erred in: waiving review hearings, ordering a restrictive visitation schedule without considering costs, and eliminating reunification as a concurrent permanent plan. We affirm the trial court's order in part, and vacate and remand in part.

         Factual and Procedural History

         Guilford County Child Protective Services received a report on 29 August 2017, alleging J.T.S. and S.C.S. were "being exposed to an injurious environment due to their parents' substance abuse." At that time, the children resided with Respondent and J.T.S.'s father[1] ("father") (collectively the "parents") in Burlington, in a house provided by the children's maternal grandparents (the "grandparents"). The matter was transferred the next day to the Alamance County Department of Social Services ("DSS").

         Respondent left J.T.S. and S.C.S. in the care of the grandparents on 7 September 2017, following allegations that father had held Respondent and the children hostage at their home the previous day. Respondent entered into a Temporary Parental Safety Agreement on 26 October 2017, wherein Respondent agreed to allow the children to reside with the grandparents, to refrain from being under the influence of mood-altering substances (unless prescribed by her doctor), and to comply with a visitation arrangement, which allowed for supervised visitation with the children. Thereafter, DSS transferred the case to in-home services.

         The parents failed to pay the grandparents rent for the Burlington house and the grandparents evicted Respondent and father in September or October of 2017. From December 2017 to February 2018, DSS social workers sought to meet with Respondent regarding her case but they were unable to locate her. The grandparents expressed concerns to DSS social workers in March of 2018 that Respondent was using illegal drugs and alerted them that, after being evicted, the parents broke back into the home in Burlington and were currently residing there. DSS social workers successfully contacted Respondent via text message, and Respondent agreed to meet with them on 13 March 2018.

         At the scheduled meeting, Respondent confirmed she was still using illegal drugs with father, and track marks were observed on her arms, chest, and hands. Respondent admitted she had been assaulted by father on multiple occasions, but denied that he inflicted the visible bruises on her arm. Upon learning father was waiting for Respondent in the parking lot, a social worker asked father if he would speak with them. Father agreed to speak with DSS and, despite the visible track marks on his arm, he denied using illegal drugs. At the request of DSS, the parents submitted to drug tests; father did not produce enough of a specimen to be tested and Respondent tested positive for cocaine and amphetamines.

         Respondent also told the social workers that the grandparents frequently interfered with her ability to see her children. As a result, a nine-day visitation plan was put in place, allowing for supervised visits and phone calls between Respondent and the children. Respondent, however, "failed to maintain this schedule," and saw her children only a few times. DSS social workers attempted to contact Respondent and father daily by phone, unannounced home visits at various residences and hotels, and visits to stores where the parents were known to shop. DSS was unable to reach the parents.

         DSS filed petitions on 21 Match 2018 alleging the children were "neglected juveniles" as defined by N.C. Gen. Stat. § 7B-101(15). Respondent and the grandparents attended a child and family team meeting on 11 April 2018, and a case plan was established. The case plan "sought to address [Respondent's] mental health, substance abuse, housing instability, lack of employment, parenting style, and the medical/mental health needs of the minor children."

         An adjudication hearing and a disposition hearing were held on 16 May 2018. At the start of the hearing, the trial court adjudicated the children as "neglected juveniles" based on stipulations made by the parties and information received from counsel. The trial court moved on to the disposition hearing, and entered reports from DSS and the Guardian ad Litem ("GAL") into evidence. The trial court announced from the bench it was adopting the recommendations of DSS and the GAL regarding supervised visitation between Respondent and the children.

         The trial court heard arguments from the parties as to whether a permanency planning hearing could immediately follow a disposition hearing. Thereafter, the trial court proceeded with the permanency planning hearing for the rest of the day and the following day. A conflict in the court's schedule prevented the matter from concluding on 17 May and the permanency planning hearing was continued to 18 July 2018.

         At the end of the day on 17 May, the trial court announced from the bench it was awarding Respondent visitation with the children for one hour per week at the Family Abuse Services Center. The oral ruling was memorialized in a supervised visitation order, entered 18 May 2018. An adjudication and disposition order was entered 23 May 2018. The order directed Respondent and father to participate in the services ordered by the trial court. Respondent was ordered to: contact Family Abuse Services to enroll in the supervised visitation program, complete a substance abuse assessment and mental health assessment and comply with any recommendations, submit to random drug screens, take medication as prescribed, engage in services to improve parenting skills and procure employment, apply for a specified number of jobs per week, complete a specified number of housing applications per week, and participate in the children's medical, dental, and mental health appointments.

         In preparation for the 18 July 2018 hearing, DSS prepared a written addendum to a previously-drafted report. In the addendum, DSS recommended "supervised visits between the minor children and the Respondent Mother be suspended due to her failure to take advantage of and/or engage in the offered visitation, as well as her failure to adequately address the issues of concern that necessitated the kinship arrangement and court involvement." Respondent, Respondent's attorney, father's attorney, the grandparents, a DSS social worker, and the GAL were present at the 18 July 2018 hearing. At the start of the hearing, DSS's counsel explained the parties had "reached a resolution" which altered DSS's recommendation contained in the addendum. Counsel for DSS addressed the terms of the "resolution" during direct examination of the social worker:

[DSS'S COUNSEL]: Is it your understanding that the respondent mother is willing to consent at this point to guardianship being granted to her parents if the department and GAL revised their recommendations in regards [sic] to suspension of her visitation?
[DSS SOCIAL WORKER]: Yes.

         Thus, DSS agreed to revise its recommendation to suspend Respondent's visitation rights and Respondent consented to guardianship of the children with the grandparents. The GAL adopted DSS's revised recommendation. The social worker read the terms of DSS's revised recommendation in open court:

That the respondent mother can continue to have visitation once a week for one hour supervised by Family Abuse Services. That if the respondent mother misses two consecutive visits or two out of the five visits . . . the visitation will be suspended and will not be reinstated until further order of the Court. That prior to visitation beginning the respondent mother shall obtain an updated CCA including mental health and substance abuse assessment and submit to a drug screen. She shall enroll in treatment as recommended by the CCA. The respondent mother must admit documentation to Family Abuse Services verifying that she's obtained such and is enrolled in treatment with a state approved treatment program. If the respondent mother appears at visitation and appears to be under the influence the visitation shall be terminated and there should be no further visitation until further order of the Court.

         The trial court then addressed the conditions agreed upon by the parties and sought confirmation that Respondent understood the terms:

THE COURT: And, it[']s my understanding attorney Skeen that your client is going to consent at this point to guardianship being placed with the grandparents so long as that modification is changed in relation to being able to have visitation once a week at the Family Justice Center?
[RESPONDENT'S COUNSEL]: That's correct Your Honor.
THE COURT: But your client does understand though that if she fails to provide the necessary criminal backgrounds, the necessary documentation, and setting up at Family Abuse Services and following all of their requirements that that is not going to be the fault of the grandparents. She will not be able to go and have visitation. She understands that?
[RESPONDENT'S COUNSEL]: Yes Your Honor.

         DSS's recommendation was accepted by the court without objection. Later in the hearing, the trial court confirmed Respondent's understanding that "[r]eunification stops today." Respondent's counsel responded, "[r]ight, she knew that but, in doing so will allow her to have increased visitation[.]"

         The trial court entered a guardianship order on 15 August 2018. The trial court entered a permanency planning order on 17 August 2018, which waived review hearings, eliminated reunification from the permanent plan, and provided for Respondent's visitation with the children pursuant to the recommendations of DSS. Additionally, the trial court entered a supervised visitation order, also reflecting the recommendation of DSS, on 17 August 2018. Respondent appeals from the permanency planning order.

         Analysis

         I. Waiver of ...


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