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Appeals Court rules mother with history of drug abuse and felony record has right to visitation with son

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The North Carolina Court of Appeals has remanded a case to Alamance County district court so that a visitation can be worked out for a mother who was denied the right to see her young son after she was sent to jail and custody was given to two distant relatives.

The child’s mother – who isn’t identified by name – had been involved in a romantic relationship that turned violent in 2014, around the same time as she had a son, “Ryan,” who’s identified by a pseudonym to protect his identity, the case background states.
Alamance County’s Department of Social Services conducted an investigation following a report of domestic violence, and case workers became concerned about the man’s “aggressive” behavior towards the woman and that both parties were abusing drugs. DSS recommended that the mother enroll in a substance abuse treatment program, seek counseling for domestic violence, and cease all communication with the father, though the relationship apparently continued several years, based on the case background.

Three years later, DSS received a report alleging that the child, Ryan, had been injured during an automobile accident in which the mother had been driving under the influence of multiple illegal drugs, causing her to drive off of a bridge and land in the water below, the case background states. The boy suffered a skull fracture, hematoma to the forehead, and an abrasion on his shoulder.

After receiving several subsequent reports that the mother was driving under the influence of illegal drugs – and assaulted her own mother, identified as Elly Palmer, while Ryan was present – a domestic protective order was issued against the mother. DSS later ordered both parents to undergo mental health and substance abuse treatment and to address the “continuing discord” between Ryan’s mother and father.

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The Alamance County sheriff’s department got involved in the case in May 2020, after receiving a report of a person walking in the road in Graham, staggering and holding a flashlight. The suspicious person, later revealed to be Ryan’s father, was taken to a home, where he was living with the child’s mother, and discovered a shotgun inside the residence and that the mother was a convicted felon. A search of the residence revealed an “un-locked, loaded shotgun within Ryan’s access.” The mother was arrested and charged with child abuse and possession of a weapon by a felon.

After receiving multiple reports that the mother was driving under the influence of methamphetamines and using cocaine, heroin, and prescription painkillers in Ryan’s presence, DSS filed a petition alleging Ryan to be a neglected juvenile in May 2020. Ryan was subsequently placed in the custody of his paternal great aunt and uncle, Maria and Jordan Turner.

On appeal, the child’s mother claimed that Alamance County district court judge Kathryn (“Katie”) Overby erred by denying her visitation with Ryan and by not granting equal guardianship rights to both his great aunt and uncle (the Turners) and his paternal grandparents, Elly and Charles Palmer.

Overby in May 2020 entered orders continuing Ryan’s placement with the Turners and an order concluding that it wasn’t in his best interest to have visitation with his mother, who was in jail, according to the case background.

Overby instead entered an order allowing the mother to write letters to her son, though they had to be sent to a DSS social worker for review before being passed on to Ryan. The mother was also allowed to have two supervised phone calls with her son each week, though that was later modified to give her one hour of supervised visitation per week. Her parents, the Palmers, were granted unsupervised visitation with their grandson every other weekend, according to the case background.

On appeal, the mother unsuccessfully argued that Overby had erred by not granting co-guardianship of Ryan to both the Turners and the Palmers. The Court of Appeals disagreed.
However, the Court of Appeals concluded that Overby had erred in denying the mother visitation and remanded that part of the case back to Alamance County for findings of fact regarding visitation and to develop a visitation plan for Ryan’s mother.

“As a general rule, a parent has a natural and legal right to visit with his or her child and this should not be disturbed when awarding custody to another unless the parent’s conduct is such that this right is forfeited, or the exercise of this right would be detrimental to the best interest and welfare of the child,” Appeals Court judge April Wood wrote in her opinion, issued Tuesday.

“[The] mother does not argue that her visitation should not be suspended while she is incarcerated,” Wood wrote for the Court of Appeals. “Rather, she asserts the trial court made no findings regarding her visitation rights after she is released from prison. We agree.” Judges John Arrowood and Lucy Inman concurred with Wood’s opinion.

Additional Court of Appeals case upholds termination of parental rights

In another opinion issued Tuesday, the Appeals Court upheld a decision terminating a father’s parental rights in a case heard in Alamance County district court in May and June 2021.

An investigation by DSS in 2019 revealed that both parents, who had been living at the Knights Inn in Burlington, were involved in substance abuse and domestic violence.”DSS reported the motel room was in complete disarray and there was no appropriate place for Lilly to sleep,” the case background states. (The pseudonym “Lilly” is used in the case background to protect the minor child’s identity.) “There were open food containers, feminine hygiene products on the floor, and no sheets on the bed.”

On appeal, the child’s father argued that the order terminating his parental rights had been improperly signed by Alamance County chief district court judge Brad Allen, Sr. – not the presiding judge, Frederick B. Wilkins of Rockingham County.

Writing for the Appeals Court, judge Fred Gore determined that Allen had made no substantive changes to Wilkins’ verbal ruling. The state’s Rules of Civil procedure, Gore added, allow another judge to sign an order when the presiding judge is unavailable due to death, sickness, or some other valid reason. Judges Lucy Inman and Valerie Zachary concurred with Gore’s opinion.

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