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Domestic Relations – Parent & Child – Custody – Reunification – Reasonable Efforts

Domestic Relations – Parent & Child – Custody – Reunification – Reasonable Efforts

In re D.M. (Lawyers Weekly No. 11-07-0403, 11 pp.) (Donna Stroud, J.) Appealed from Orange County District Court. (Joseph Moody Buckner, J.) N.C. App. Click here for the full text of the opinion.

Holding: When custody is granted to a child’s grandparent, the court must make findings of fact and conclusions of law as to the fitness of not just the mother but also the father. The court must specify visitation times and conditions.

Reversed and remanded.

Respondent-father appeals from a permanency planning order granting custody of his daughter to her maternal grandmother.

In 2009, county officials filed a petition alleging the 8-year-old minor child was neglected and dependent. She had been living with her mother and half-brother. Social services placed her with her maternal grandmother.

At a later hearing, the court entered an order that the child was dependent but left pending the issue of neglect. The court found the home study of the father favorable but that his history of alcohol abuse and how it would affect his ability to parent required more study.

In June 2009, DSS changed the placement to the father’s home with DSS retaining custody. The father and mother were ordered to attend custody mediation, which was not successful, and the child was removed from her father’s home and placed with her grandmother. In an April 7, 2009, permanency planning order, the court ordered custody with the grandmother with visitation with the father “at the discretion of the treatment team.”

Respondent-father argues that the trial court erred by ignoring his constitutional rights as a parent. He does not challenge the findings of fact, but argues the court did not make proper conclusions of law.

A natural parent may lose his constitutionally protected right to the control of his children upon a finding of unfitness or where the parent’s conduct is inconsistent with that right.

We note that the child was adjudicated only as a dependent and the DSS’s petition was based solely on the actions of the child’s mother.

The court found that “neither parent is unfit to parent.” Because the trial court failed to make any findings of fact or conclusions of law as to whether the father had acted inconsistently with his parental rights, it erred in awarding permanent custody to the grandmother.

Furthermore, the trial court’s findings as to reasonable efforts to reunite the child with her parents only addressed a home study regarding the father. Once the child was placed with him, the record does not indicate any “reasonable efforts” by DSS to assist him in parenting or address the conditions that caused the removal from the home.

We note that several orders leave visitation with the father at the discretion of “the treatment team.” The trial court must set the parameters of visitation. If the trial court does not return the child to the father’s home and instead grants visitation, it should set forth the time, place and conditions for that privilege.

Reversed and remanded.


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