                  IN THE COURT OF APPEALS OF NORTH CAROLINA

                                              No. COA18-929

                                         Filed: 7 May 2019

Sampson County, Nos. 17 JA 120, 121

IN THE MATTER OF: B.C.T., J.B.B.


         Appeal by respondent from orders entered 23 April 2018 by Judge William B.

Sutton, Jr. and 27 June 2018 by Judge Carol A. Jones in District Court, Sampson

County. Heard in the Court of Appeals 27 February 2019.


         Warrick, Bradshaw and Lockamy, P.A., by Frank L. Bradshaw, for petitioner-
         appellee Sampson County Department of Social Services.

         Forrest Firm, P.C., by Patrick S. Lineberry, for respondent-appellant mother.

         Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for guardian ad
         litem.


         STROUD, Judge.


         Respondent-Mother appeals from disposition orders for her minor children,

B.C.T. (“Benjamin”) and J.B.B. (“Jeffrey”)1 and a related civil custody order for

Jeffrey. Because there is no competent evidence to support many of the trial court’s

findings, and the conclusions of law are not supported by the findings, we reverse and

remand.

                                         I.       Background




1   Pseudonyms are used for ease of reading and to protect the juveniles’ identities.
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       Sampson County Department of Social Services (“DSS”) became involved with

Mother in March of 2017 after receiving a report of physical injury and injurious

environment in Mother’s home.2 DSS had received a report that Mother’s boyfriend,

Travis Matthis, who lived with Mother, had punched Benjamin, age seven in the

stomach. Mother had previously allowed her other son, Jeffrey, age twelve, to live

with a family friend, Kristen Mitchell, because Jeffrey did not like Mr. Matthis.3

After the report to DSS regarding Benjamin, Mother voluntarily agreed to place

Benjamin with Ms. Mitchell as well. After an assessment, DSS determined that

Mother and Mr. Matthis needed to address emotional and mental health issues,

family relationships, and parenting skills. In May 2017, DSS developed a home

services agreement with Mother and in June 2017 did the same for Mr. Matthis.

Neither agreement is in our record on appeal. According to the reports and testimony

in the record, Mother’s family services agreement required her to attend individual

therapy, take all medications as prescribed, attend couple’s counseling with Mr.

Matthis and follow any recommendations, and participate in a parenting education

curriculum. There is no indication in our record that DSS ever requested that Mr.

Matthis move out of Mother’s home. Throughout the investigation and until entry of




2Benjamin and Jeffrey have different fathers. Benjamin’s father did not participate in the trial, but
Jeffrey’s did. Neither father is a party to this appeal.

3 There is no indication in our record that DSS had any involvement in Mother’s previous voluntary
placement of Jeffrey with Ms. Mitchell.

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the order on appeal, Mother had unsupervised and unlimited visitation with both

children, but Mr. Matthis saw Benjamin only during therapy sessions.

      DSS filed a separate petition for each child on 6 November 2017 alleging that

they were abused and neglected juveniles; the allegations of the two petitions are

substantially identical. The petitions note they were filed only because Mr. Matthis

had not completed his family services agreement, although Mother had. Several

court dates were set for a pre-adjudication hearing but were continued for various

reasons. On 20 February 2018, the trial court entered pre-adjudication orders for

Jeffrey and Benjamin.

      On 15 March 2018, Mother entered into a “consent to findings of fact” related

to an adjudication of neglect only. These stipulations were:

             1.     That on or about March 14, 2017, the Sampson
             County Department of Social Services received a report of
             Injurious Environment.

             2.    That the Juveniles resided in the home of his mother
             and his mother’s boyfriend Travis Matthis.

             3.     That the Juvenile [Jeffrey] the older sibling made
             allegations of physical abuse against Mr. Matthis. Later,
             the Juvenile [Benjamin] made similar allegations.

             4.   That those allegations were denied by Respondent
             Mother and Mr. Matthis.

             5.    That neither Juvenile required medical treatment
             for any such physical abuse and that there were no marks
             on the juveniles to substantiate said claims.



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            6.     That Respondent Mother voluntarily placed the
            Juvenile [Jeffrey] with a family friend Hope Mitchell as
            [Jeffrey] did not want to be in the home with Mr. Matthis.

            7.    That the Respondent Mother admitted to domestic
            violence in the home which included Mr. Matthis holding a
            gun to her head when she was previously pregnant.

            8.    That Mr. Matthis was previously diagnosed with
            bipolar disorder and admitted to not taking his medication.

            9.     That Respondent Mother admitted to leaving the
            child with Mr. Matthis even though she admitted she had
            concerns of her own personal safety with Mr. Matthis.

            10.   On April 19, 2017, DSS substantiated injurious
            environment.

            11. On or about May 29, 2017, In Home Services were put
            into place for Respondent Mother to include individual
            therapy, medication compliance, couple’s counseling with
            Mr. Matthis and parenting education.

            12.   On June 9, 2017 DSS developed In Home Services
            plan with Mr. Matthis was developed whereby Mr. Matthis
            agreed to complete a mental health evaluation and follow
            and [sic] recommendations as well as attend individual
            therapy to include domestic violence counseling.

            13.   That prior to the filing of the petition, Respondent
            Mother had completed most of Service Agreement but Mr.
            Matthis had not made substantial progress with his
            Service Agreement.


       On 23 April 2018, the trial court entered an order apparently based entirely

upon the stipulated facts adjudicating Benjamin and Jeffrey as neglected within the

meaning of N.C. Gen. Stat. § 7B-101(15); there was no adjudication of abuse or


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dependency.4 Neither the trial court’s order nor Mother’s stipulations addressed the

fitness of Ms. Mitchell as a caregiver or the appropriateness of placement in her home.

        Mother complied with all of the requirements of the family services agreement,

and DSS noted that “[t]hroughout the CPS Investigation and In-Home Services cases,

Respondent Mother has exceeded the department’s recommendations and has been

cooperative.”

        Mr. Matthis also agreed to a family services agreement which included

completing a mental health evaluation and following any recommendations. The

mental health evaluation recommended that Mr. Matthis attend outpatient therapy

and complete a psychological evaluation. Mr. Matthis completed the psychological

evaluation, but that evaluation recommended no further treatment or therapy.5 DSS

noted that Mr. Matthis’ attendance to couples therapy was inconsistent, but that he

“began cooperating once petitions were filed in the case.”

        The disposition hearings for each child were held simultaneously on 10 May

2018.    DSS’s report recommended that Benjamin—the child Mr. Matthis had

allegedly punched—be returned to Mother, but that legal and physical custody of

Jeffrey be granted to Ms. Mitchell.           At the disposition hearing, a social worker




4 The stipulated facts are not attached to or incorporated into the order but the order does refer to
them.

5 The evaluation is not in our record, but the DSS reports and testimony show that Mr. Matthis had
completed everything DSS had asked him to do.

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testified that Mother had complied with her family services agreement and she was

satisfied with Mother’s efforts, but that she remained in a relationship with Mr.

Matthis. She recommended that custody of Benjamin be granted to Mother and that

DSS be released from his case. She recommended that custody of Jeffrey be granted

to Ms. Mitchell due to the length of time he had already been with her and his stated

desire to stay with her, and that DSS be released from his case and a Chapter 50

custody order be entered. Although Mother had previously had unlimited visitation,

DSS recommended unsupervised visitation of at least one hour every other week.

      The only other witness who testified was a therapist who had provided

individual therapy to the children and family counseling to Mother and Mr. Matthis.

One issue raised at the hearing was whether Mother or Ms. Mitchell had been

coaching the children; the therapist testified that the children had reported that Ms.

Mitchell said things such as, “Travis [Matthis] is never going to change, he’s never

going to be nice to you.” The only evidence in the record regarding Ms. Mitchell’s

home was from the DSS court report that her home was in the same school district

as Mother’s home and all of Benjamin’s needs were met.           The only testimony

regarding Ms. Mitchell’s home at the disposition hearing was:

             Q.    Now, the home that [Jeffrey’s] staying in, you’ve had
             an opportunity to see that home. Is that correct?

             A.    Yes ma’am.

             Q.    And, the home he has there, I believe he has a four


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             wheeler or an ATV, is that correct?

             A.    Correct.

             Q.    He has video games. Is that right?

             A.    As far as I know. I’ve been told of that.

             Q      So, he has pretty much whatever a child desires as
             it relates to toys and those kind of things. Is that right?

             A. Yes ma’am.

      On 27 June 2018, the trial court entered a disposition order for each child. As

to Benjamin, age seven, the trial court did not adopt DSS’s recommendation that he

be returned to Mother’s custody since Mr. Matthis was still in the home, and entered

a disposition order providing that: (1) legal custody remain with DSS and that he

continue placement with Ms. Mitchell; (2) the permanent plan shall be reunification

with Mother and a concurrent secondary plan of custody to a “relative or other

suitable person”; (3) DSS make reasonable effort to “effectuate the current plan” for

Benjamin; (4) Benjamin have no contact with Mr. Matthis; and (5) Mother have

supervised visitation of at least one hour every other week.

      The trial court followed DSS’s recommendations as to Jeffrey, and the

disposition order for Jeffrey included findings of fact regarding Mother’s compliance

with the family services agreement and the following:

             14.   That the Juvenile has been adamant that he does
             not desire to be returned to his mother’s home and
             expressly desires to remain in his current placement.


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15. That it is not likely that the Juvenile will be returned
home within the next six (6) months and placement with a
parent is not in the Juvenile’s best interests.

16. That the Respondent Mother is not making adequate
progress within a reasonable period of time under the
current permanent plan.

17, That the Respondent Mother is not actively
participating in or cooperating with the plan, the
Department of Social Services, and the Guardian ad Litem
for the Juvenile.

....

19. That the Respondent Mother is not acting in a manner
consistent with the health or safety of the Juvenile.

....

24. That the best plan of care to achieve a safe, permanent
home for the Juvenile within a reasonable period of time is
custody to a relative or other suitable person.

25. That the Department has made reasonable efforts in
this matter to develop and implement a permanent plan for
the Juvenile.

26. That the Court finds that the conditions which led to
the removal of the Juvenile from the Juvenile’s home still
exists and that a return of the Juvenile to said home would
be contrary to the welfare of the Juvenile.

27. That there is no longer a need for continued State
intervention on behalf of the Juvenile through a juvenile
court proceeding.

28. That the Juvenile was residing with Kristen “Hope”
Mitchell at the time of the filing of the Petition.


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             ....

             30. That, by clear and convincing evidence, the Respondent
             Mother is not a fit and proper person to have the care,
             custody, and control of the Juvenile and has acted
             inconsistently with her constitutionally protected status as
             a parent to the Juvenile.

      The disposition orders provided for Mother to have one hour of supervised

visitation a week. A related civil custody order was also entered on the same day

granting physical and legal custody of Jeffrey to Ms. Mitchell, with Mother to have

one hour of supervised visitation every other week. Mother timely appealed the

disposition orders for Benjamin and Jeffrey, but her notice of appeal failed to include

the related civil custody order.

                         II.       Petition for Writ of Certiorari

      Mother asks this Court to issue a writ of certiorari to address the civil custody

order which was not included in her notice of appeal for Jeffrey.

             Pursuant to N.C. Gen. Stat. § 7B 1001 (2013), notice of
             appeal and notice to preserve the right to appeal shall be
             given in writing within 30 days after entry and service of
             the order. An appellant’s failure to give timely notice of
             appeal is jurisdictional, and an untimely attempt to appeal
             must be dismissed. However, writ of certiorari may be
             issued in appropriate circumstances by either appellate
             court to permit review of the judgments and orders of trial
             tribunals. This Court has held that an appropriate
             circumstance to issue writ of certiorari occurs when an
             appeal has been lost because of a failure of his or her trial
             counsel to give proper notice of appeal.



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In re J.C.B., 233 N.C. App. 641, 645, 757 S.E.2d 487, 490 (2014) (citations, brackets,

ellipsis, and quotation marks omitted).

       Mother’s notice of appeal for each case refers to the “Order of Adjudication

signed by the Honorable William Sutton, Jr. on March 15, 2018 and Order of

Disposition signed by the Honorable Carol Jones on May 10, 2018.”6                      Mother

acknowledges that her “notice of appeal, however, did not reference the civil custody

order entered pursuant to N.C. Gen. Stat. § 7B-911.” In our discretion, we grant

Mother’s petition for writ of certiorari and review the civil custody order along with

the disposition orders.

                         III.    N.C. Gen. Stat. § 7B-910 Hearing

       The trial court entered a disposition order as to each child, and portions of the

two orders are identical and Mother raises the same legal issues for those portions.

We will address the portions of the two orders which are the same together. But the

two orders decree a different disposition for each child and include some different

conclusions of law, so we will address the portions of the order which differ separately

for each child. The first issue, which applies to both children, is whether the trial

court erred by failing to hold a hearing as required by N.C. Gen. Stat. § 7B-910 to

review the voluntary placements of the children within 90 days of the placement

under her agreement with DSS. See N.C. Gen. Stat. § 7B-910 (2017).


6We note that even though Mother’s notice of appeal references the adjudication orders, she makes
no argument in her brief challenging the adjudication orders.

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      Mother argues that the trial court violated the review requirements of N.C.

Gen. Stat. § 7B-910, and since no hearing occurred, both children should have been

returned to her since an “adjudication petition was not filed after [they were] in Ms.

Mitchell’s custody for six months.” We review statutory errors de novo. In re K.M.M.,

242 N.C. App. 25, 28, 774 S.E.2d 430, 432 (2015).

      N.C. Gen. Stat. § 7B-910 states:

                (a) The court shall review the placement of any juvenile
             in foster care made pursuant to a voluntary agreement
             between the juvenile’s parents or guardian and a county
             department of social services and shall make findings from
             evidence presented at a review hearing with regard to:
                    (1) The voluntariness of the placement;
                    (2) The appropriateness of the placement;
                    (3) Whether the placement is in the best interests of
                    the juvenile; and
                    (4) The services that have been or should be provided
                    to the parents, guardian, foster parents, and
                    juvenile, as the case may be, either (i) to improve the
                    placement or (ii) to eliminate the need for the
                    placement.
                (b) The court may approve the continued placement of
             the juvenile in foster care on a voluntary agreement basis,
             disapprove the continuation of the voluntary placement, or
             direct the department of social services to petition the court
             for legal custody if the placement is to continue.
                (c) An initial review hearing shall be held not more than
             90 days after the juvenile’s placement and shall be
             calendared by the clerk for hearing within such period
             upon timely request by the director of social services.

N.C. Gen. Stat. § 7B-910 (emphasis added).

      In response to Mother’s argument that a hearing within 90 days of the



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voluntary placement was required, DSS contends that “[i]t is not apparent that

N.C.G.S. § 7B-910, titled ‘Review of voluntary foster care placements,’ is applicable

to the present case; placement of Benjamin with Ms. Mitchell in March 2017 did not

involve DSS placement or the foster care system.” The guardian ad litem similarly

argues, “since the Mother placed Benjamin with Ms. Mitchell without any agreement

involving or with DSS, the requirement of a review hearing was not triggered.” But

although Mother placed Benjamin with Ms. Mitchell prior to DSS’s involvement, she

placed Jeffrey with Ms. Mitchell based upon some sort of agreement with DSS due

to the investigation.

       Our record is not sufficient to consider Mother’s argument on N.C. Gen. Stat.

§ 7B-910 because her agreement with DSS, if any, is not in our record.                           The

requirements of N.C. Gen. Stat. § 7B-910 apply to a “voluntary placement

agreement,” but not a “temporary parental safety agreement.” See N.C. Gen. Stat. §

7B-910.7

       It is the appellant’s duty to include any information necessary for review of the

issues raised on appeal. See N.C. R. App. P. 9(a). Since our record does not include



7In either type of agreement, both parties to the agreement have the right at any time to unilaterally
revoke the agreement, and custody does not transfer with the agreement. See N.C. Dep’t of Health
and     Human      Svcs.,  Voluntary      Placement     Agreement     (DSS-1789,      rev   10/2010),
https://www2.ncdhhs.gov/info/olm/forms/dss/dss-1789-ia.pdf; N.C. Dep’t of Health and Human Svcs.,
Temporary         Parental       Safety        Agreement       (DSS-5231,         rev.      01/2017),
https://www2.ncdhhs.gov/info/olm/forms/dss/dss-5231-ia.pdf. A required component of both types of
agreements is that they are voluntary in both the execution and their duration. Id.


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documentation of the terms of the agreement with DSS, we cannot review Mother’s

argument regarding applicability of N.C. Gen. Stat. § 7B-910. But, as discussed

below, we must reverse the orders on appeal based upon other issues with the trial

court’s actions.

                               IV.   Findings of Fact

       “The standard of review that applies to an assignment of error challenging a

dispositional finding is whether the finding is supported by competent evidence. A

finding based upon competent evidence is binding on appeal, even if there is evidence

which would support a finding to the contrary. In re B.W., 190 N.C. App. 328, 332,

665 S.E.2d 462, 465 (2008) (citation, quotation marks, and brackets omitted). For

challenged conclusions of law, we determine whether the trial court’s facts support

the challenged conclusion. Id. at 335, 665 S.E.2d at 467. “We review a trial court’s

determination as to the best interest of the child for an abuse of discretion.” In re

D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007).

A.    Finding of Dependency

      Mother challenges finding of fact 1 from both orders which are identical in

substance:

             1.    That pursuant to a N.C. Gen. Stat. §7B-901, this
             matter comes on for a Dispositional Hearing following an
             adjudication of neglect and dependency which was made on
             March 15, 2018.




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          Mother argues that the children were never adjudicated dependent. In the

trial court’s orders on adjudication, Mother stipulated to certain facts and to an

adjudication of neglect, but the trial court did not adjudicate Jeffrey or Benjamin as

dependent. Therefore, the finding by the trial court that Jeffrey and Benjamin were

adjudicated as dependent is not supported by competent evidence or by the

adjudication orders.

B.        Finding of Fact 4

          Mother next challenges findings related to Ms. Mitchell. These findings are in

both orders.8 The first finding is:

                  4.    That the home of Kristen “Hope” Mitchell is safe,
                  suitable, and appropriate for the Juvenile.

          Mother argues that there was no evidence regarding Ms. Mitchell’s home and

no findings of fact to demonstrate why her home is “safe, suitable, and appropriate.”

She contends that “[t]he trial court should have considered the availability of relative

placements and should have verified whether Ms. Mitchell was an appropriate

placement[,]” and “[t]he trial court’s order should have contained more than

conclusory determinations regarding Ms. Mitchell.” Although a trial court need not

include detailed findings as to all of the evidence presented, we agree this conclusory

finding is not supported by the evidence or any other findings of fact. At the hearing,




8   The challenged finding is finding of fact number 4 in Jeffrey’s order and 6 in Benjamin’s order.

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the only specific evidence regarding Ms. Mitchell or her home was that she had

provided “pretty much whatever a child desires as it relates to toys and those kind of

things,” including a “four-wheeler or ATV” and video games. The only other evidence

about Ms. Mitchell was from the children’s therapist:

             Q.     Okay. Now, if you could, if you know the relationship
             between Ms. Mitchell and the boys or how that - what that
             relationship is can you explain that? Is she just a family
             friend? Is she a distant cousin? Do you know?

             A.    My understanding is that she is a family friend and
             that she has been a part of their lives for at least the
             majority of [Jeffrey’s] life.

      Neither DSS’s reports nor the evidence and testimony at trial provided any

substantive information about Ms. Mitchell, her home or her care of the children.

Having “pretty much whatever a child desires as it relates to toys and those kinds of

things” is not necessarily in a child’s best interest. This testimony could also tend to

support Mother’s argument that Ms. Mitchell was seeking to alienate the children

from her - many children would prefer to stay where they have “whatever a child

desires as it relates to toys and those kinds of things.” In any event, this evidence

provides no basis for findings of fact regarding Ms. Mitchell’s suitability as a

custodian for the children. There is no competent evidence to support any of the trial

court’s findings regarding Ms. Mitchell, and the trial court’s findings cannot support

the related conclusions of law.

C.    Findings of fact 29 and 32


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      Mother challenges findings of fact 29 and 32 in Jeffrey’s order:

             29.   That Kristen “Hope” Mitchell is a fit and proper
             person to have the care, custody, and control of the
             Juvenile.

             ....

             32. That it is in the best interests of the Juvenile for
             Kristen Hope Mitchell to be granted the care, custody, and
             control of the Juvenile.

Mother also challenges conclusion of law 5, which is identical to finding of fact 29:

             5. That Kristen Hope Mitchell is a fit and proper person to
             have the care, custody, and control of the Juvenile.

      We first note that finding 32 is actually a conclusion of law, which we review

de novo:

                    The determination of what will best promote the
             interest and welfare of the child, that is, what is in the best
             interest of the child, is a conclusion of law, and this
             conclusion must be supported by findings of fact as to the
             characteristics of the parties competing for custody. These
             findings may concern the physical, mental, or financial
             fitness or any other factors brought out by the evidence and
             relevant to the issue of the welfare of the child. These
             findings cannot, however, be mere conclusions.

Hunt v. Hunt, 112 N.C. App. 722, 728, 436 S.E.2d 856, 860 (1993) (citations and

quotation marks omitted).

      A “conclusory recitation” of the best interests standard, without supporting

findings of fact, is not sufficient. See Lamond v. Mahoney, 159 N.C. App. 400, 406,



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583 S.E.2d 656, 660 (2003) (“Finding of fact 11, as a mere conclusory recitation of the

standard, cannot support the order.”). As discussed above, there was almost no

evidence regarding Ms. Mitchell, her home, or her care of the children, so finding of

fact 29 that she was a fit and proper person to have custody of the children is not

supported by the evidence.

      We have previously noted that the trial court need not use “magic words” in

its findings of fact or conclusions of law, if the evidence and findings overall make the

trial court’s basis for its order clear. See Davis v. Davis, 229 N.C. App. 494, 503, 748

S.E.2d 594, 601 (2013). Here, we have disposition orders with “magic words” but no

evidence to support some of the crucial findings of fact and thus no support for the

related conclusions of law.

D.    Finding of Fact 15

      Mother next challenges finding of fact 15 in Jeffrey’s order:

             15.    That it is not likely that the Juvenile will be
             returned home within the next six (6) months and
             placement with a parent is not in the Juvenile’s best
             interests.

The basis for this finding is entirely unclear, since DSS reported, and the trial court

found, that Mother had complied with everything required of her by the family

services agreement. It is true that Jeffrey—age 12—had refused to participate in

person with family therapy, but Mother did everything required of her by the family

services agreement. It is noteworthy there was no prior court order requiring either


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her or Mr. Matthis to do anything, and no prior order that Mr. Matthis not be in the

presence of the children.            Mr. Matthis also complied with his family services

agreement. The first and only substantive hearing in this case was the disposition

hearing, where the trial court removed both children from Mother even though there

had never been even an allegation she was unfit to care for the children, nor had the

trial court entered any orders directing Mother, or Mr. Matthis to take any specific

actions for the children to be returned to Mother. The only requirements placed upon

Mother were those under the family services agreement. The social worker’s

recommendation that Jeffrey remain with Ms. Mitchell was based only on the length

of time Jeffrey had lived with Ms. Mitchell and his desire to stay with her, not any

concern about his safety with Mother or Mr. Matthis. This finding is not supported

by the evidence.

E. Finding of Fact 26

          Mother next challenges finding of fact 269 from both orders:

                  26.    That the Court finds that the conditions which led to
                  the removal of the Juvenile from the Juvenile’s home still
                  exists and that a return of the Juvenile to said home would
                  be contrary to the welfare of the Juvenile.

          According to the stipulations in the adjudication order, the “conditions which

led to the removal” were allegations of one incident of Mr. Matthis punching



9   Finding of Fact 17 in Benjamin’s order.


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Benjamin (which Mother and Mr. Matthis denied and was never established as fact

by any order), reports of domestic violence between Mother and Mr. Matthis “when

she was previously pregnant,” and a report that in the past Mr. Matthis had been

diagnosed with and needed treatment for bipolar disorder.10               Based upon these

concerns, DSS entered into family services agreements with both Mother and Mr.

Matthis, and by the time of the disposition hearing, both had fully complied with

DSS’s recommendations to remedy the concerns regarding domestic violence,

parenting skills, and mental health. There was no evidence that the conditions which

led to removal still existed. The only condition which still existed was Jeffrey’s desire

to live with Ms. Mitchell. While Jeffrey had stated that his preference was to remain

with Ms. Mitchell—perhaps because of the toys at her home or because he dislikes

Mr. Matthis—custody cannot be granted to a third party unless the parent is unfit or

has acted inconsistently with her constitutionally protected rights as a parent. See

Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). As long as the parent

is fit to care for her child, the court cannot award custody of a child to a third party

based only upon the child’s preference or the fact that the third party “may offer more

material advantages in life for the child.” Petersen v. Rogers, 337 N.C. 397, 402, 445

S.E.2d 901, 904 (1994); see also Clark v. Clark, 294 N.C. 554, 576-77, 243 S.E.2d 129,



10There is no indication of when this pregnancy occurred. Based upon our record, Mother has only
these two children and there is no mention of any pregnancy since Benjamin, so her most recent
pregnancy would presumably have been over seven years prior to the petition.

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142 (1978) (“When the child has reached the age of discretion, the court may consider

the preference or wishes of the child to live with a particular person. A child has

attained an age of discretion when it is of an age and capacity to form an intelligent

or rational view on the matter. The expressed wish of a child of discretion is, however,

never controlling upon the court, since the court must yield in all cases to what it

considers to be for the child’s best interests, regardless of the child’s personal

preference. . . . The preference of the child should be based upon a considered and

rational judgment, and not made because of some temporary dissatisfaction or

passing whim or some present lure.” (alteration in original)).

      At trial, the social worker testified about the reasons DSS recommended

custody be granted to Ms. Mitchell:

             We are recommending that the temporary safety provider
             receive full custody of [Jeffrey]. That is mainly due to the
             fact that he does not want to return to respondent mother’s
             home at this time. And, he has been living with Ms. Mitchell
             for quite some time before DSS involvement.

(Emphasis added.) All of DSS’s evidence showed that Mother and Mr. Matthis had

followed their family service agreements. DSS had recommended that Benjamin

return to the home and would not have made this recommendation if concerns

regarding his safety still existed. There is no evidence in the record that DSS or the

trial court ever recommended or requested that Mr. Matthis be required to leave

Mother’s home. Finding of fact 26 is not supported by competent evidence.



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                                 Opinion of the Court



F.    Findings of Fact 16, 17, and 19

      Mother challenges findings related to her progress with her “permanent plan”:

             16.   That the Respondent mother is not making adequate
             progress within a reasonable period of time under the
             current permanent plan.

             17.    That the Respondent Mother is not actively
             participating in or cooperating with the plan, the
             Department of Social Services, and the Guardian ad Litem
             for the Juvenile.

             ....

             19.   That the Respondent Mother is not acting in a
             manner consistent with the health or safety of the
             Juvenile.

      We first note that the trial court had adopted no “permanent plan” for either

child, since no permanency planning hearing or review hearings of any sort were held.

The only prior order was the adjudication of neglect based upon the stipulated facts.

As has been noted, the social worker’s report and testimony show that DSS was fully

satisfied with Mother’s efforts. Indeed, it is not clear how Mother could have done

anything else to participate in or cooperate with a plan, since DSS had no other

recommendations or requirements for her. These findings are not supported by

competent evidence.

G.    Findings of Fact 24, 25, 27 and 30

      Mother next challenges findings 24 through 27 and finding 30:

             24.    That the best plan of care to achieve a safe,


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                                 Opinion of the Court



            permanent home for the Juvenile within a reasonable
            period of time is custody to a relative or other suitable
            person.

            25.   That the Department has made reasonable efforts in
            this matter to develop and implement a permanent plan for
            the Juvenile.

            ....

            27.    That there is no longer a need for continued State
            intervention on behalf of the Juvenile through a juvenile
            court proceeding.

            ....


            30.    That, by clear and convincing evidence, The
            Respondent Mother is not a fit and proper person to have
            the care, custody, and control of the Juvenile and has acted
            inconsistently with her constitutionally protected status as
            a parent to the Juvenile.

      Once again, these findings are in part conclusions of law and are conclusory

recitations of standards with no findings to support them. For all the reasons noted

above regarding the other findings, these findings are also not supported by

competent evidence. DSS’s 10 May 2018 reports noted that [t]hroughout the CPS

Investigation and In-Home Services cases, Respondent Mother has exceeded the

department’s recommendations and has been cooperative.” The evidence presented

at trial only supported DSS’s statement, and we find no evidence at all—much less

clear, cogent and convincing evidence—that Mother “has acted inconsistently with

her constitutionally protected status as a parent.” There was never any allegation


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                                   Opinion of the Court



that Mother had done anything to harm either child, and throughout the case, until

entry of the disposition orders on appeal, she had unlimited, unsupervised visitation

with no problems. The social worker testified that she had visited Mother’s home and

it was sufficient to care for Jeffrey and Benjamin.

H.    Civil Custody Order

      Mother also challenges findings of fact 5, and 7 through 11 of Jeffrey’s civil

custody order:

             5.     Pursuant to subsequent orders of this Court the
                    Juvenile/Juveniles was/were placed with the
                    Plaintiff herein.

             ....

             7.     No further review or judicial oversight is required
                    pursuant to North Carolina Chapter 7B regarding
                    the minor child(ren).

             8.     The Plaintiff is a fit and proper person to have the
                    care, custody, and control of the minor child(ren).

             9.     That, upon clear and convincing evidence, the
                    Defendant(s) have acted inconsistent with their
                    constitutionally protected status as parents to the
                    child(ren).

             10.    That, upon clear and convincing evidence, [Mother]
                    is not fit and proper person to have the care, custody,
                    and control of the minor child(ren).

             11.    That it is in the best interests of the minor child(ren)
                    that the Plaintiff be granted the care, custody, and
                    control of the minor child(ren).



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                                   Opinion of the Court



No additional evidence was presented before the trial court for the civil custody order.

As discussed above, the trial court’s findings related to Ms. Mitchell are not based on

competent evidence, the findings regarding Mother’s failure to make progress on her

plan are not supported by any evidence, and there was no evidence that Mother was

unfit or had acted inconsistently with her constitutionally protected status as a

parent. The trial court’s conclusions of law as discussed above were not supported by

the findings of fact.

                         V.    Benjamin’s Disposition Order

       One issue unique to Benjamin’s case is that DSS recommended that Benjamin

be returned to Mother’s custody and that DSS be released from the case. The trial

court did not adopt this recommendation but instead placed him in the legal custody

of DSS and allowed him to remain with Ms. Mitchell. Certainly the trial court does

not have to follow DSS’s recommendations, but it must make findings of fact based

upon competent evidence to support its disposition. And this Court has previously

held that parties are not allowed to make different arguments on appeal than before

the trial court to “swap horses between courts in order to get a better mount.” In re

I.K., 227 N.C. App. 264, 266, 742 S.E.2d 588, 590 (2013). DSS is not exempt from this

rule. As in In re I.K., DSS did not acknowledge that its position at trial was that

Benjamin should be returned to Mother, and instead argued on appeal that the

disposition order should be affirmed. Unsurprisingly, DSS cannot direct us to any



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                                   Opinion of the Court



evidence to support its arguments regarding Benjamin, since it did not seek to prove

that Benjamin should remain in DSS’s custody and the only reason it recommended

that Jeffrey stay with Ms. Mitchell was his stated preference and the length of time

Jeffrey had been with Ms. Mitchell.        DSS’s argument has changed on appeal,

although the facts have not, and “[t]his is of particular concern because the primary

goal of the Juvenile Code, which includes DSS’s duties, is to seek to protect the best

interests of abused, neglected, or dependent children. Id. at 266, 742 S.E.2d at 590-

91. DSS is not obligated to adopt a different position on appeal just to oppose the

appealing parent if it has previously determined that a parent has a safe and

appropriate home and the child should be returned to the parent.

                                  VI.     Conclusion

      We reverse and remand the trial court’s disposition orders for Benjamin and

Jeffrey and Jeffrey’s civil custody order and instruct the trial court to hold a new

hearing and enter orders with findings of facts supported by competent evidence that

support its conclusions of law. To grant custody of a child to a third party, we note

that the evidence must establish “that the legal parent acted in a manner inconsistent

with his or her constitutionally-protected status as a parent.” See Moriggia v. Castelo,

___ N.C. App. ___, ___, 805 S.E.2d 378, 385 (2017). So far, no evidence has been

presented which could support such a conclusion, and DSS did not take this position

before the trial court.   Although DSS recommended that Jeffrey remain in Ms.



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                                   Opinion of the Court



Mitchell’s custody, this recommendation was apparently based only upon the child’s

wishes and the fact that he had been there “for quite some time before DSS

involvement” and not upon Mother’s unfitness. “Whether on remand for additional

findings a trial court receives new evidence or relies on previous evidence submitted

is a matter within the discretion of the trial court.” In re I.K., 227 N.C. App. at 276,

742 S.E.2d at 596. But based upon the evidence of record as of 10 May 2018, there is

no factual support for a conclusion that Mother is unfit to have custody of her

children, much less to limit her to an hour of supervised visitation every other week.

      REVERSED AND REMANDED.

      Judges TYSON and ARROWOOD concur.




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