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Domestic Relations — Parent & Child – Permanency Planning Order – Guardianship – Constitutional

A mother who left her children with their paternal grandmother for three years – making infrequent visits and no support payments – acted inconsistently with her constitutionally protected status as a parent.

We affirm the Court of Appeals’ decision to affirm the trial court’s award of legal guardianship of “Brittany” and “Brianna” to their paternal grandmother.

A period of voluntary nonparent custody may constitute conduct inconsistent with the protected status of natural parents and therefore result in the application of the “best interest of the child” test, as the trial court did here.

According to the trial court’s findings of fact, respondent-mother left the father’s home in 2015. At that time, respondent-mother surrendered custody of the children to the paternal grandmother (who lived with the children’s father) and made no attempt to reunify with the children until after they had been taken into custody by the county human services agency (HSA). In the course of that three-year period, respondent visited the children on holidays and birthdays without ever taking the children to her home overnight or visiting with them on other than special occasions. HSA became involved when the father was arrested.

Although respondent has taken a more active role in the children’s lives in recent years, including paying child support and engaging in overnight and weekend visitation, she was unable to obtain suitable housing for the children until approximately one month prior to the permanency planning review hearing, at which point the children had been in HSA custody for over 19 months. In addition, the trial court found that, “although [respondent] and [her husband (the stepfather)] have completed their family service agreement and have a bond with the children, the strongest bond is with [the paternal grandmother]”; that both girls had experienced “adjustment issues” following weekend visitations with respondent and the stepfather; and that the children want to live in the paternal grandmother’s home. In light of our cumulative view of respondent’s conduct, as described in the trial court’s findings of fact, we hold that the relevant findings support the trial court’s conclusion that respondent acted in a manner inconsistent with her constitutionally protected rights as a parent by voluntarily ceding the custody and care of her children to the parental grandmother for a period of three years.

The minimal degree of contact that respondent had with the children prior to their placement in HSA custody indicates that respondent intended for the paternal grandmother to continue to provide primary care for the children for an indefinite period of time with no notice that such relinquishment of custody would be temporary, particularly given respondent’s failure to take any steps to regain custody of Brittany and Brianna until after they entered HSA custody. As a result, the trial court’s findings of fact show that respondent induced the children and the paternal grandmother to allow that family unit to flourish in a relationship of love and duty with no expectations that it would be terminated.

To be sure, respondent’s efforts to regain custody of her children following their placement into HSA custody are relevant to the issue of parental fitness. However, a parent’s compliance with his or her case plan does not preclude a finding of neglect. the fact that respondent complied with the provisions of her family services agreement does not overcome the effect of her prior decision to surrender custody of her children to the paternal grandmother, particularly given the trial court’s findings that the children’s paramount bond was with the paternal grandmother rather than with respondent and the difficulties that the children have experienced in being away from their grandmother.

Although nothing in this opinion should be understood to preclude any possibility that a parent who has taken affirmative steps, including compliance with the directives of a district court or social services agency, would be able to overcome the effects of past behavior that would be otherwise inconsistent with his or her constitutionally protected right to parent his or her child, we see nothing in the trial court’s findings, in light of its analysis of the best interests of the children, that would prevent it from making the paternal grandmother the children’s guardian in this case, notwithstanding respondent’s compliance with the provisions of her family services agreement.

Because respondent’s abdication of responsibility for the children in 2015 clearly contributed to their placement in HSA custody and because respondent had failed to obtain suitable housing until shortly before the 30 January 2020 permanency planning hearing despite the fact that HSA’s involvement began in early to mid-2018, we hold that the trial court’s findings of fact provide adequate support for its conclusion that the conditions that had led to the children’s removal from the family home continued to exist.



(Earls, J.) This court’s decision puts parents who are trying to navigate challenging circumstances, including those who are experiencing domestic violence, in an impossible bind: while a parent who chooses to remain in an unsafe living environment with her children risks having her children adjudicated neglected or her parental rights terminated, a parent who escapes a dangerous living environment but needs time to get back on her feet risks having her parental rights displaced precisely because of her efforts to seek out a safe and stable home.

This court’s decision also potentially signals to parents that even if they comply with every element of a case plan or family services agreement developed during a juvenile proceeding, their parental rights are always subject to displacement should a court decide that another caregiver offers a “better” home for their child. That is contrary to what our statutes provide and what the constitution requires. Therefore, I respectfully dissent.

In re B.R.W. (Lawyers Weekly No. 010-052-22, 72 pp.) (Samuel Ervin, J.) (Anita Earls, J., dissenting) On appeal from the Court of Appeals. Appealed from Yadkin County District Court (Jeanie Houston, J.) James Freeman for petitioner; Paul Freeman for guardian ad litem; Thomas Diepenbrock for respondent. 2022-NCSC-50


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