Domestic Relations – Juvenile Code – Permanency Planning

The permanency planning order was not supported by competent evidence.

We vacated and remanded.

Mother appealed from the trial court’s permanency planning orders awarding guardianship of Jim, Jed, and Mark to the children’s foster parents.

The DSS became involved with Mother, Jim, and Jed after law enforcement discovered Mother was strangled by the children’s father, Gerber Salinas Paredes, in the presence of the children. Paredes was charged with felony assault by strangulation and his bond conditions prohibited conduct with Mother. DSS assisted Mother to obtain housing at the Caldwell County Shelter Home. But on August 23, 2021, Mother was asked to leave that shelter based on a “lack of cooperation and ongoing contact” with Paredes. Jim and Jed were placed with a temporary safety provider due to continual safety concerns. DSS was notified that Mother had removed the children from the temporary safety provider and ceased communication with the temporary safety provider. While DSS continued to assist Mother and the children locate housing, Mother and the children returned to the home where Paredes resided.

On November 2, 2021 Paredes tested positive for drugs. In December 2021, Jim and Jed tested positive for amphetamines, cocaine, and methamphetamine in hair follicle screenings. In January 2022, Mother asked DSS to help her find new housing after reporting a domestic violence incident with Paredes in the presence of the children. In February 2022, Mother and the children left the housing that DSS provided, so Mother could resume a relationship with Paredes. That same day, Paredes, Mother, and the children were involved in a car accident in which the family’s vehicle flipped over. When law enforcement arrived at the scene, they did not find any members of the family. DSS later discovered that the parents left the scene with the children and went to a nearby home. Neither Mother nor Paredes sought medical attention for the children. DSS filed a petition alleging Jim and Jed were neglected and dependent. The trial court ordered DSS to take non- secure custody of Jim and Jed. In February 2022, the trial court ordered continued non-secure custody to DSS.

In March 2022, the court conducted an adjudicatory hearing on DSS’s petition. The court adjudicated Jim and Jed as neglected and dependent. The trial court ordered the children to remain in DSS custody and continued placement in foster care. Both parents were individually granted one hour of supervised visitation a week. In July 2022, the trial court held a permanency planning hearing for Jim and Jed and ordered a primary permanent plan of reunification and a secondary plan of adoption.

In November 2022, Mother gave birth to Mark and DSS obtained non-secure custody of Mark after his release from the hospital. Mark was adjudicated neglected and dependent. In December 2022, the court held another permanency planning hearing for Jim and Jed. The court ceased reunification efforts, made adoption the primary plan with guardianship as the secondary plan, and awarded Mother one hour of supervised visitation a month. The court ceased Paredes’ visitation. Then, in the next permanency planning hearing for Jim and Jed held in March 2023, the court re-iterated its orders.

In June 2023, the court held permanency planning hearings for all the children. Jim and Jed’s primary and secondary plans, respectively, remained adoption and guardianship. Further, the trial court ordered Mark’s initial primary plan as reunification and secondary plan to be adoption. At the permanency planning hearings in December 2023 and in May 2024, the primary and secondary plans for all the children remained the same. At the August 2024 permanency planning hearing, the trial court changed all the children’s primary plans to guardianship and secondary plans to adoption. Subsequently, the court awarded guardianship to the prospective guardians and continued its prior grant of visitation for Mother.

On appeal, Mother argued the permanency planning order was not supported by evidence. We agreed with Mother’s contention that the August 2024 permanency planning order was not supported by competent evidence. Therefore, we are constrained to hold that the court’s factual findings were unsupported by competent evidence and subsequently, its conclusions of law were erroneous. To the extent that the GAL and DSS argued that requiring oral testimony goes against the evidentiary requirements of permanency planning proceedings as codified in section 7B-901(a) and our Supreme Court’s precedent, we are compelled to follow this Court’s precedent and similarly vacated the trial court’s order in light of In re D.L., In re D.Y., and In re J.T.

For a permanency planning order to be supported by competent evidence, this Court’s precedent requires some oral testimony, and therefore, more than court reports, attorneys’ statements, and prior orders. In this case, the court heard no oral testimony but instead relied on court reports and prospective guardians’ affidavits to make its factual findings.

Vacated and remanded.

In the Matter of J.A.S.F., J.A.S.F., M.S.S-F. (Lawyers’ Weekly No. 011-122-25, 12 pp.) (Christopher Freeman, J.) Appealed from Caldwell County District Court (Robert A. Mullinax, Jr., J.) Stephen Schoeberle, for petitioner-appellee Caldwell County Department of Social Services; Michelle F. Lynch, for Guardian ad Litem; Jeffrey L. Miller, for respondent-appellant mother. North Carolina Court of Appeals