In re: J.T.S. & S.C.S. ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1214
Filed: 15 October 2019
Alamance County, Nos. 18 JA 51, 09 JA 184
IN THE MATTER OF: J.T.S. and S.C.S.
Appeal by Respondent-mother from order entered 17 August 2018 by Judge
Larry D. Brown, Jr. in Alamance County District Court. Heard in the Court of
Appeals 3 September 2019.
Jamie L. Hamlett for Petitioner-appellee Alamance County Department of
Social Services.
Deputy Parent Defender Annick Lenoir-Peek and Parent Defender Wendy C.
Sotolongo for Respondent-appellant.
Parker Poe Adams & Bernstein LLP, by Fern A. Paterson, for guardian ad
litem.
McGEE, Chief Judge.
Respondent, the mother of J.T.S. and S.C.S., appeals from a permanency
planning order in which the trial court eliminated reunification as a permanent plan
and awarded guardianship of J.T.S. and S.C.S. to their maternal grandparents.
Respondent contends the trial court erred in: waiving review hearings, ordering a
restrictive visitation schedule without considering costs, and eliminating
reunification as a concurrent permanent plan. We affirm the trial court’s order in
part, and vacate and remand in part.
IN RE: J.T.S. & S.C.S.
Opinion of the Court
Factual and Procedural History
Guilford County Child Protective Services received a report on 29 August 2017,
alleging J.T.S. and S.C.S. were “being exposed to an injurious environment due to
their parents’ substance abuse.” At that time, the children resided with Respondent
and J.T.S.’s father1 (“father”) (collectively the “parents”) in Burlington, in a house
provided by the children’s maternal grandparents (the “grandparents”). The matter
was transferred the next day to the Alamance County Department of Social Services
(“DSS”).
Respondent left J.T.S. and S.C.S. in the care of the grandparents on 7
September 2017, following allegations that father had held Respondent and the
children hostage at their home the previous day. Respondent entered into a
Temporary Parental Safety Agreement on 26 October 2017, wherein Respondent
agreed to allow the children to reside with the grandparents, to refrain from being
under the influence of mood-altering substances (unless prescribed by her doctor),
and to comply with a visitation arrangement, which allowed for supervised visitation
with the children. Thereafter, DSS transferred the case to in-home services.
The parents failed to pay the grandparents rent for the Burlington house and
the grandparents evicted Respondent and father in September or October of 2017.
From December 2017 to February 2018, DSS social workers sought to meet with
1 The parental rights of S.C.S.’s father have been previously terminated.
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Opinion of the Court
Respondent regarding her case but they were unable to locate her. The grandparents
expressed concerns to DSS social workers in March of 2018 that Respondent was
using illegal drugs and alerted them that, after being evicted, the parents broke back
into the home in Burlington and were currently residing there. DSS social workers
successfully contacted Respondent via text message, and Respondent agreed to meet
with them on 13 March 2018.
At the scheduled meeting, Respondent confirmed she was still using illegal
drugs with father, and track marks were observed on her arms, chest, and hands.
Respondent admitted she had been assaulted by father on multiple occasions, but
denied that he inflicted the visible bruises on her arm. Upon learning father was
waiting for Respondent in the parking lot, a social worker asked father if he would
speak with them. Father agreed to speak with DSS and, despite the visible track
marks on his arm, he denied using illegal drugs. At the request of DSS, the parents
submitted to drug tests; father did not produce enough of a specimen to be tested and
Respondent tested positive for cocaine and amphetamines.
Respondent also told the social workers that the grandparents frequently
interfered with her ability to see her children. As a result, a nine-day visitation plan
was put in place, allowing for supervised visits and phone calls between Respondent
and the children. Respondent, however, “failed to maintain this schedule,” and saw
her children only a few times. DSS social workers attempted to contact Respondent
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Opinion of the Court
and father daily by phone, unannounced home visits at various residences and hotels,
and visits to stores where the parents were known to shop. DSS was unable to reach
the parents.
DSS filed petitions on 21 Match 2018 alleging the children were “neglected
juveniles” as defined by N.C. Gen. Stat. § 7B-101(15). Respondent and the
grandparents attended a child and family team meeting on 11 April 2018, and a case
plan was established. The case plan “sought to address [Respondent’s] mental health,
substance abuse, housing instability, lack of employment, parenting style, and the
medical/mental health needs of the minor children.”
An adjudication hearing and a disposition hearing were held on 16 May 2018.
At the start of the hearing, the trial court adjudicated the children as “neglected
juveniles” based on stipulations made by the parties and information received from
counsel. The trial court moved on to the disposition hearing, and entered reports
from DSS and the Guardian ad Litem (“GAL”) into evidence. The trial court
announced from the bench it was adopting the recommendations of DSS and the GAL
regarding supervised visitation between Respondent and the children.
The trial court heard arguments from the parties as to whether a permanency
planning hearing could immediately follow a disposition hearing. Thereafter, the
trial court proceeded with the permanency planning hearing for the rest of the day
and the following day. A conflict in the court’s schedule prevented the matter from
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Opinion of the Court
concluding on 17 May and the permanency planning hearing was continued to 18
July 2018.
At the end of the day on 17 May, the trial court announced from the bench it
was awarding Respondent visitation with the children for one hour per week at the
Family Abuse Services Center. The oral ruling was memorialized in a supervised
visitation order, entered 18 May 2018. An adjudication and disposition order was
entered 23 May 2018. The order directed Respondent and father to participate in the
services ordered by the trial court. Respondent was ordered to: contact Family Abuse
Services to enroll in the supervised visitation program, complete a substance abuse
assessment and mental health assessment and comply with any recommendations,
submit to random drug screens, take medication as prescribed, engage in services to
improve parenting skills and procure employment, apply for a specified number of
jobs per week, complete a specified number of housing applications per week, and
participate in the children’s medical, dental, and mental health appointments.
In preparation for the 18 July 2018 hearing, DSS prepared a written
addendum to a previously-drafted report. In the addendum, DSS recommended
“supervised visits between the minor children and the Respondent Mother be
suspended due to her failure to take advantage of and/or engage in the offered
visitation, as well as her failure to adequately address the issues of concern that
necessitated the kinship arrangement and court involvement.” Respondent,
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IN RE: J.T.S. & S.C.S.
Opinion of the Court
Respondent’s attorney, father’s attorney, the grandparents, a DSS social worker, and
the GAL were present at the 18 July 2018 hearing. At the start of the hearing, DSS’s
counsel explained the parties had “reached a resolution” which altered DSS’s
recommendation contained in the addendum. Counsel for DSS addressed the terms
of the “resolution” during direct examination of the social worker:
[DSS’S COUNSEL]: Is it your understanding that the
respondent mother is willing to consent at this point to
guardianship being granted to her parents if the
department and GAL revised their recommendations in
regards [sic] to suspension of her visitation?
[DSS SOCIAL WORKER]: Yes.
Thus, DSS agreed to revise its recommendation to suspend Respondent’s
visitation rights and Respondent consented to guardianship of the children with the
grandparents. The GAL adopted DSS’s revised recommendation. The social worker
read the terms of DSS’s revised recommendation in open court:
That the respondent mother can continue to have visitation
once a week for one hour supervised by Family Abuse
Services. That if the respondent mother misses two
consecutive visits or two out of the five visits . . . the
visitation will be suspended and will not be reinstated until
further order of the Court. That prior to visitation
beginning the respondent mother shall obtain an updated
CCA including mental health and substance abuse
assessment and submit to a drug screen. She shall enroll
in treatment as recommended by the CCA. The respondent
mother must admit documentation to Family Abuse
Services verifying that she’s obtained such and is enrolled
in treatment with a state approved treatment program. If
the respondent mother appears at visitation and appears
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Opinion of the Court
to be under the influence the visitation shall be terminated
and there should be no further visitation until further
order of the Court.
The trial court then addressed the conditions agreed upon by the parties and
sought confirmation that Respondent understood the terms:
THE COURT: And, it[’]s my understanding attorney Skeen
that your client is going to consent at this point to
guardianship being placed with the grandparents so long
as that modification is changed in relation to being able to
have visitation once a week at the Family Justice Center?
[RESPONDENT’S COUNSEL]: That’s correct Your Honor.
THE COURT: But your client does understand though that
if she fails to provide the necessary criminal backgrounds,
the necessary documentation, and setting up at Family
Abuse Services and following all of their requirements that
that is not going to be the fault of the grandparents. She
will not be able to go and have visitation. She understands
that?
[RESPONDENT’S COUNSEL]: Yes Your Honor.
DSS’s recommendation was accepted by the court without objection. Later in
the hearing, the trial court confirmed Respondent’s understanding that
“[r]eunification stops today.” Respondent’s counsel responded, “[r]ight, she knew that
but, in doing so will allow her to have increased visitation[.]”
The trial court entered a guardianship order on 15 August 2018. The trial
court entered a permanency planning order on 17 August 2018, which waived review
hearings, eliminated reunification from the permanent plan, and provided for
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Opinion of the Court
Respondent’s visitation with the children pursuant to the recommendations of DSS.
Additionally, the trial court entered a supervised visitation order, also reflecting the
recommendation of DSS, on 17 August 2018. Respondent appeals from the
permanency planning order.
Analysis
I. Waiver of Review Hearings
Respondent asserts the trial court erred in waiving review hearings pursuant
to N.C. Gen. Stat. § 7B-906.1(n) because, at the time of the permanency planning
hearing, the children had not resided with the grandparents for a continuous “period
of at least one year.” We agree.
As an initial matter, we address DSS’s contention that Respondent failed to
properly preserve this argument. Rule 10(a)(1) of the North Carolina Rules of
Appellate Procedure provides, “[i]n order to preserve an issue for appellate review, a
party must have presented to the trial court a timely request, objection, or motion,
stating the specific grounds for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.” N.C. R. App. P. 10(a)(1) (2017).
However, “when a trial court acts contrary to a statutory mandate and a defendant
is prejudiced thereby, the right to appeal the court’s action is preserved,
notwithstanding [the] defendant’s failure to object at trial.” State v. Ashe, 314 N.C.
28, 39, 331 S.E.2d 652, 659 (1985). “Accordingly, because [Respondent] contends that
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Opinion of the Court
the trial court erred in its interpretation and application of statutory provisions, we
review the merits of [Respondent’s] argument notwithstanding [her] failure to object
at trial.” State v. Jamison, 234 N.C. App. 231, 237, 758 S.E.2d 666, 671 (2014).
“This Court’s review of a permanency planning order is limited to whether
there is competent evidence in the record to support the findings and whether the
findings support the conclusions of law.” In re P.O., 207 N.C. App. 35, 41, 698 S.E.2d
525, 530 (2010) (citation omitted). “Questions of statutory interpretation are
questions of law, which are reviewed de novo by an appellate court.” In re Proposed
Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179,
180 (2003).
N.C. Gen. Stat. § 7B-906.1 applies to review and permanency planning
hearings and requires that a review hearing be held “at least every six months” after
the initial permanency planning hearing “to review the progress made in finalizing
the permanent plan for the juvenile, or if necessary, to make a new permanent plan
for the juvenile.” N.C. Gen. Stat. § 7B-906.1(a) (2017). Subsection (n) allows the court
to waive further hearings “if the court finds by clear, cogent, and convincing evidence
each of the following:”
(1) The juvenile has resided in the placement for a period of
at least one year.
(2) The placement is stable and continuation of the
placement is in the juvenile’s best interests.
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Opinion of the Court
(3) Neither the juvenile’s best interests nor the rights of
any party require that review hearings be held every six
months.
(4) All parties are aware that the matter may be brought
before the court for review at any time by the filing of a
motion for review or on the court’s own motion.
(5) The court order has designated the relative or other
suitable person as the juvenile’s permanent custodian or
guardian of the person.
N.C.G.S. § 7B-906.1(n) (emphasis added). “The trial court must make written
findings of fact satisfying each of the enumerated criteria . . . , and its failure to do so
constitutes reversible error.” In re P.A., 241 N.C. App. 53, 66, 772 S.E.2d 240, 249
(2015).
In the permanency planning order, the trial entered conclusion of law # 32:
“The [c]ourt finds by clear, cogent, and convincing evidence[] that the juveniles have
resided in the placement for a period of at least one year[.]” In support of this
conclusion, the trial court made the following pertinent findings of fact:
14. Both minor children are in a kindship placement with
their maternal grandparents[.] They have been placed
with their grandparents since October 2017 and have
transitioned well into their care. [S.C.S.] has resided with
his maternal grandparents for many years of his life and is
accustomed to being in his grandparents’ care. [J.T.S.]
spent the first six months of his life in the home of his
maternal grandparents. He also spent some weekends
with them over the last several years and has adjusted well
to being in their full-time care.
....
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IN RE: J.T.S. & S.C.S.
Opinion of the Court
37. That the Court waive the holding of regular review and
permanency planning hearings in that the minor child,
[J.T.S.], has resided with his maternal grandparents for at
least one year and the minor child, [S.C.S.], has resided
with his maternal grandparents for more than five years[.]
Respondent contends the above findings of fact do not support conclusion of
law # 32 because the “period of at least one year” must be continuous and
uninterrupted. DSS and the GAL assert that, pursuant to the plain language of
N.C.G.S. § 7B-906.1(n)(1), the children were not required to reside with the
grandparents for a continuous or unbroken “period of at least one year.” As a result,
they argue, the findings of fact establishing the various times each child resided with
the grandparents support conclusion of law # 32.
Respondent’s appeal presents a question regarding how the “period of at least
one year,” as it is used in N.C.G.S. § 7B-906.1(n)(1), is calculated. In addressing this
argument, we adhere to the following principles of statutory construction: “The
paramount objective of statutory interpretation is to give effect to the intent of the
legislature.” In re Proposed Assessments, 161 N.C. App. at 560, 589 S.E.2d at 181
(citation omitted). “To achieve this end, the court should consider the language of the
statute or ordinance, the spirit of the act and what the act seeks to accomplish.”
Williams v. Alexander Cnty. Bd. of Educ., 128 N.C. App. 599, 603, 495 S.E.2d 406,
408 (1998) (internal quotation marks and citation omitted). Moreover, “words and
phrases of a statute may not be interpreted out of context, but must be interpreted as
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Opinion of the Court
a composite whole so as to harmonize with other statutory provisions and effectuate
legislative intent, while avoiding absurd or illogical interpretations[.]” Fort v. Cnty.
of Cumberland, 218 N.C. App. 401, 407, 721 S.E.2d 350, 355 (2012) (internal
quotation marks and citations omitted).
Pursuant to canons of statutory interpretation, this Court looks first to the
plain language of N.C.G.S. § 7B-906.1(n)(1). “[A] period of at least one year” is
ambiguous as to whether the period is to be tallied on a continuous or cumulative
basis. Therefore, we look to the purposes of the juvenile code as a whole to discern
the intent of N.C.G.S. § 7B-906.1(n)(1).
N.C. Gen. Stat. § 7B-100 sets forth the purposes of the juvenile code:
This Subchapter shall be interpreted and construed so as
to implement the following purposes and policies:
(1) To provide procedures for the hearing of juvenile cases
that assure fairness and equity and that protect the
constitutional rights of juveniles and parents;
(2) To develop a disposition in each juvenile case that
reflects consideration of the facts, the needs and
limitations of the juvenile, and the strengths and
weaknesses of the family.
(3) To provide for services for the protection of juveniles by
means that respect both the right to family autonomy and
the juveniles’ needs for safety, continuity, and permanence;
and
(4) To provide standards for the removal, when necessary,
of juveniles from their homes and for the return of juveniles
to their homes consistent with preventing the unnecessary
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Opinion of the Court
or inappropriate separation of juveniles from their parents.
(5) To provide standards, consistent with the Adoption and
Safe Families Act of 1997, P.L. 105-89, for ensuring that
the best interests of the juvenile are of paramount
consideration by the court and that when it is not in the
juvenile’s best interest to be returned home, the juvenile
will be placed in a safe, permanent home within a
reasonable amount of time.
N.C. Gen. Stat. § 7B-100 (2017).
“The [j]uvenile [c]ode . . . must be interpreted and construed so as to implement
these goals and policies.” In re Eckard, 144 N.C. App. 187, 197, 547 S.E.2d 835, 841
(2001). To understand the goals and policies that support waiving review hearings,
we look to N.C.G.S. § 7B-906.1 to glean the purpose of a permanency planning hearing
and the purpose of a review hearing.
The trial court’s purpose in holding a permanency planning hearing is to
develop a plan “to achieve a safe, permanent home for the juvenile within a
reasonable period of time.” N.C.G.S. § 7B-906.1(g). Subsequently, the trial court
conducts review hearings to “review the progress made in finalizing the permanent
plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.”
N.C.G.S. § 7B-906.1(a). The trial court can waive review hearings by making the
requisite findings enumerated in N.C.G.S. § 7B-906.1(n). Therefore, the waiver
reflects a determination on behalf of the trial court that scheduled review hearings
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Opinion of the Court
are not necessary, at that time, “to achieve a safe, permanent home for the juvenile
within a reasonable period of time.” N.C.G.S. § 7B-906.1(g).
N.C.G.S. § 7B-906.1(n) reflects the juvenile code’s specific goals of providing
services that respect “the juveniles’ needs for safety, continuity, and permanence” and
placing juveniles in a “safe, permanent home.” N.C.G.S. § 7B-100(3), (5). These goals
are reflected in the findings the trial court is required to make pursuant to N.C.G.S.
§ 7B-906.1(n) including, inter alia, “[t]he placement is stable and continuation of the
placement is in the juvenile’s best interests”; “[t]he court order has designated the
relative or other suitable person as the juvenile’s permanent custodian or guardian of
the person”; and “[n]either the juvenile’s best interests nor the rights of any party
require that review hearings be held every six months.” N.C.G.S. § 7B-906.1(n) (2)-
(3), (5) (emphasis added). Consistent with these goals, we interpret the language “for
a period of at least one year” to mean a continuous, uninterrupted period of at least
twelve months.
In support of this position, we note the evidence gleaned from a continuous
period of at least one year would provide the trial court the best evidence of stability
and permanency. A child’s placement for twelve consecutive months demonstrates
commitment on behalf of the “permanent custodian or guardian of the person” to the
child’s placement. Moreover, this interpretation is consistent with the policy of the
juvenile code to “provide for services” that respect “the right to family autonomy[.]”
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Opinion of the Court
N.C.G.S. § 7B-100(3). When a child has resided outside the home for a continuous
period of at least one year, the parent theoretically has been afforded the opportunity
to demonstrate her progress during at least two review hearings. In contrast, when
a child has lived outside the home for various short periods of time throughout his
life, the parent has not necessarily been provided the same opportunity, afforded by
review hearings, to demonstrate her progress or present evidence of changed
conditions over the course of a year.
Additionally, measuring “a period of at least one year” by an aggregation of
interrupted, sporadic placements could lead to absurd results. Under this
interpretation, N.C.G.S. § 7B-906.1(n)(1) could be satisfied in the following situation:
a one-year-old child was placed with his aunt for eleven months, was placed with his
mother for ten consecutive years and, at age twelve, was placed with his aunt for
three months. In that scenario, the child’s placement with his aunt for a three-month
period preceding a permanency planning hearing would not provide evidence of a
permanent and stable placement, and the waiver of review hearings could lead to the
“unnecessary or inappropriate separation of [the] juvenile[] from [his] parent[].”
N.C.G.S. § 7B-100(4). Therefore, construing N.C.G.S. § 7B-906.1(n)(1) to allow for
the waiver of review hearings when a child has resided outside the parent’s home for
a short period of time would be inconsistent with the objective of review hearings.
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Opinion of the Court
DSS and the GAL analogize the issue to this Court’s holding in In re T.P., 217
N.C. App. 181, 718 S.E.2d 716 (2011). In T.P., the trial court waived future review
hearings pursuant to N.C.G.S. § 7B-906(b),2 which required the trial court find “[t]he
juvenile has resided with a relative . . . for a period of at least one year.” Id. at 186,
718 S.E.2d at 720. Although the child had resided with his maternal grandparents
for a period of time prior to residing with his paternal grandparents for a period of
time, this Court upheld the trial court’s waiver of review hearings because the child
“ha[d] remained with a relative (maternal and paternal grandparents) for more than
one year.” Id. at 187, 718 S.E.2d at 720. DSS contends “if the twelve-month period
can be calculated across different relatives, it can be calculated with one set of
relatives across the life of the children.” We disagree with this assertion for two main
reasons.
First, the question of how to measure “a period of at least one year” was not
addressed by this Court, as there was no dispute as to how long the juvenile had been
placed outside the home. Second, T.P. was decided under a provision of a predecessor
statute, which contained different language than N.C.G.S. § 7B-906.1(n)(1).
Specifically, the provision that the “juvenile has resided with a relative or has been
in the custody of another suitable person” in N.C.G.S. § 7B-906(b) now reads “[t]he
juvenile has resided in the placement[.]” N.C.G.S. § 7B-906.1(n)(1). We cannot say
2 N.C. Gen. Stat. § 7B-906 (2009) was repealed by Session Laws 2013-129, s. 25, effective 1
October 2013, and replaced with N.C.G.S. § 7B-906.1.
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whether this Court would have reached the same result in T.P. under N.C.G.S. § 7B-
906.1(n)(1). Because this issue is not before us, we limit our discussion of T.P. to
distinguishing its relevancy in regard to the present case.
Finally, we note that our interpretation is consistent with this Court’s
treatment of N.C.G.S. § 7B-906.1(n)(1). In In re P.A., 241 N.C. App. at 54-56, 772
S.E.2d at 242-43, a juvenile was placed with his father and his father’s girlfriend in
September 2011, was placed with only his father’s girlfriend in April 2013, was placed
with his mother in October 2013, and was placed back with his father’s girlfriend in
January 2014. In addressing whether the trial court appropriately waived review
hearings pursuant to N.C.G.S. § 7B-906.1(n), this Court noted “it would have been
impossible for the trial court to make a finding as to the first criterion that ‘[t]he
juvenile has resided in the placement for a period of at least one year’ since [the
juvenile] had been placed with [the father’s girlfriend] for only about 60 days at the
time of the March 2014 hearing.” Id. at 66, 772 S.E.2d at 249. Accordingly, although
the juvenile had resided with his father’s girlfriend at different times throughout his
life, the only period of time considered relevant by this Court in regard to N.C.G.S. §
7B-906.1(n)(1) was the two-month period preceding the permanency planning
hearing.
In sum, recognizing that “[o]ur juvenile code balances the important, and
sometimes competing interests of family reunification, permanency for the child, and
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Opinion of the Court
the best interest of the child[,]” In re J.D.C., 174 N.C. App. 157, 161, 620 S.E.2d 49,
52 (2005), we interpret the language “for a period of at least one year” in N.C.G.S. §
7B-906.1(n)(1) to require an uninterrupted period of at least twelve months.
Therefore, we hold the trial court’s conclusion of law was not supported by adequate
findings of fact. Accordingly, we vacate the portion of the permanency planning order
waiving future review hearings and remand to the trial court.
II. Visitation Schedule
Respondent contends the trial court erred by failing to consider the costs
associated with supervised visitation, entering contradictory provisions as to the
duration and frequency of her visitation, requiring her to complete additional
requirements as a prerequisite to visitation, and delegating its judicial discretion to
Family Abuse Services. We agree the trial court erred by failing to make a
determination regarding costs and by entering contradictory provisions as to the
frequency of Respondent’s visitation. However, Respondent has not preserved for
appellate review her arguments that the trial court erred by placing requirements on
her visitation and by delegating its judicial authority.
First, Respondent contends the trial court erred by ordering supervised
visitation without addressing its cost, who would bear the expense, or Respondent’s
ability to pay said expense.
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As an initial matter, we address whether this issue has been preserved for
appellate review. This Court has held a respondent-mother’s failure to object to the
trial court’s award of visitation at the discretion of a third party “is not a failure to
preserve the[] issue[] for appeal” because “a party [is not] required to object at the
hearing or raise a motion in order to preserve this type of question for appellate
review.” In re E.C., 174 N.C. App. 517, 520, 621 S.E.2d 647, 650 (2005) superseded
on other grounds by statute as stated in In re T.H., 245 N.C. App. 131, 781 S.E.2d 718,
2016 WL 224188, at *5-7 (2016) (unpublished). Therefore, in order to preserve this
issue for appellate review, Respondent was not required to object to the trial court’s
failure to consider the costs associated with supervised visitation.
N.C. Gen. Stat. § 7B-905.1 provides, in pertinent part:
(a) An order that removes custody of a juvenile from a
parent, guardian, or custodian or that continues the
juvenile’s placement outside the home shall provide for
appropriate visitation as may be in the best interests of the
juvenile consistent with the juvenile’s health and safety.
The court may specify in the order conditions under which
visitation may be suspended.
....
(c) If the juvenile is placed or continued in the custody or
guardianship of a relative or other suitable person, any
order providing for visitation shall specify the minimum
frequency and length of the visits and whether the visits
shall be supervised. The court may authorize additional
visitation as agreed upon by the respondent and custodian
or guardian.
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N.C. Gen. Stat. § 7B-905.1(a), (c) (2017).
Our Supreme Court has held that, without findings addressing whether a
respondent-parent “was able to pay for supervised visitation once ordered[, o]ur
appellate courts are unable to determine if the trial court abused its discretion by
requiring as a condition of visitation that visits with the children be at [the
respondent-parent’s] expense.” In re J.C., 368 N.C. 89, 772 S.E.2d 465 (2015) (per
curiam). In the present case, the trial court awarded Respondent weekly supervised
visitation with her children at the Family Abuse Services Center; however, the trial
court made no findings as to the costs associated with supervised visitation, who
would bear the responsibility of paying such costs, or Respondent’s ability to pay the
costs. This scenario has been squarely addressed by this Court in In re Y.I., ___ N.C.
App. ___, 822 S.E.2d 501 (2018):
In this case, the trial court did not determine what costs, if
any, would be associated with conducting supervised
visitation at Gaston County Visitation Center or Carolina
Solutions. Given that the trial court relieved DSS of any
further responsibility in the case, it appears likely that [the
r]espondent-mother would be required to pay for visitation,
although the court failed to specify who was to bear any
such expense. In the event the trial court intended for [the
r]espondent-mother to bear the cost of visitation, the court
failed to determine whether [the r]espondent-mother had
the ability to pay.
Id. at ___, 822 S.E.2d at 506. Therefore, as we did in Y.I.,
we vacate the portion of the permanency planning order
regarding visitation and remand for additional findings of
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Opinion of the Court
fact, addressing whether Respondent[] is to bear any costs
associated with conducting visits at the supervised
visitation centers, and if so, whether Respondent[] has the
ability to pay those costs.
Id. at ___, 822 S.E.2d at 506.
Respondent next contends the visitation plan in the permanency planning
order “is contradictory as to how long and how often [she] can visit her sons.” In the
permanency planning order, one decretal paragraph provides Respondent’s visitation
“should be at a minimum of once a week with both children for two hours,” whereas
a different decretal paragraph provides Respondent “can continue to have visitation
once a week for one hour[.]” Based on the revised recommendation of DSS and the
terms of the visitation order, entered 17 August 2018, it appears the trial court
intended to grant Respondent visitation with her children for one hour once a week.
However, in an abundance of caution, we vacate this portion of the order and remand
to the trial court for clear instructions regarding the frequency and duration of the
visitation awarded to Respondent.
Finally, Respondent contends the trial court erred by imposing conditions as a
prerequisite to visiting her children and by delegating discretion over visitation to
Family Abuse Services.
We first address whether this argument was preserved for appellate review.
We acknowledge, as discussed above, that by not objecting to the trial court’s failure
to consider visitation costs, Respondent did not “fail[] to preserve the[] issue[] for
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Opinion of the Court
appeal.” In re E.C., 174 N.C. App. at 520, 621 S.E.2d at 650. In that instance, the
costs associated with supervised visitation were neither discussed at the hearing nor
consented to by Respondent. In contrast, at the 18 July 2018 hearing, the trial court
squarely addressed the conditions of visitation, including the role of Family Abuse
Services, and Respondent expressly agreed to the terms.
This Court has addressed preservation in this specific context in the
unpublished opinion In re R.C., 196 N.C. App. 789, 675 S.E.2d 720, 2209 WL 1200874
(2009) (unpublished). There, during the permanency planning hearing, the
“respondent’s counsel specifically advised the court that [the] respondent ‘does not
have a problem’ with the trial court’s adopting YFS’s recommendation as to [the
juvenile] that custody be vested in R.C.” Id. at *2. This Court held, “[b]ecause [the]
respondent consented to the grant of [the juvenile’s] custody to R.C. and to divesting
YFS of custody over [the juvenile], [the] respondent did not properly preserve for
appeal her contentions regarding the permanency planning order as it pertained to
[the juvenile]. Simply put, she invited any error.” Id. at *3.
In the present case, Respondent and DSS entered into an agreement prior to
the 18 July 2018 hearing: Respondent consented to “guardianship being granted to
her parents if [DSS] and GAL revised their recommendations in regards [sic] to
suspension of her visitation[.]” In addition to providing each party a typed copy of
DSS’s recommendation, a social worker read the recommendation in open court:
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Opinion of the Court
That the respondent mother can continue to have visitation
once a week for one hour supervised by Family Abuse
Services. That if the respondent mother misses two
consecutive visits or two out of the five visits . . . the
visitation will be suspended and will not be reinstated until
further order of the Court. That prior to visitation
beginning the respondent mother shall obtain an updated
CCA including mental health and substance abuse
assessment and submit to a drug screen. She shall enroll
in treatment as recommended by the CCA. The respondent
mother must admit documentation to Family Abuse
Services verifying that she’s obtained such and is enrolled
in treatment with a state approved treatment program. If
the respondent mother appears at visitation and appears
to be under the influence the visitation shall be terminated
and there should be no further visitation until further
order of the Court.
Respondent did not object to the terms of DSS’s revised recommendation on
visitation. Indeed, the trial court specifically addressed the terms of DSS’s
recommendation with Respondent’s attorney:
THE COURT: But your client does understand though that
if she fails to provide the necessary criminal backgrounds,
the necessary documentation, and setting up at Family
Abuse Services and following all of their requirements that
that is not going to be the fault of the grandparents. She
will not be able to go and have visitation. She understands
that?
[RESPONDENT’S COUNSEL]: Yes Your Honor.
....
THE COURT: And, would you like the Court to accept
[DSS’s] recommendations?
[RESPONDENT’S COUNSEL]: We do accept that she be –
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Opinion of the Court
the modification where she’d be allowed to have those visits
and we thank the Court for the opportunity to continue the
visits.
DSS’s revised recommendation, as agreed upon by the parties and read in open
court, was memorialized in the permanency planning order. Therefore, because
Respondent consented to the terms of DSS’s revised recommendation regarding the
conditions required for visitation and the role of Family Abuses Services, she “did not
properly preserve for appeal [these] contentions regarding the permanency planning
order[.]” In re R.C., 2009 WL 1200874, at *3.
III. Concurrent Plan of Reunification
Respondent contends the trial court erred by not making reunification a
concurrent permanent plan. Respondent has not preserved this issue for appellate
review.
As discussed above, Respondent agreed to guardianship of her children with
the grandparents in exchange for visitation with her children. The trial court
expressly addressed this issue at the hearing:
THE COURT: And, it[’]s my understanding attorney Skeen
that your client is going to consent at this point to
guardianship being placed with the grandparents so long
as that modification is changed in relation to being able to
have visitation once a week at the Family Justice Center?
[RESPONDENT’S COUNSEL]: That’s correct Your Honor.
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Opinion of the Court
Subsequently, the trial court stated, “[r]eunification stops today.”
Respondent’s counsel responded, “[r]ight, she knew that but, in doing so will allow her
to have increased visitation[.]” Respondent did not object to the elimination of
reunification as a permanent plan. The trial court explicitly stated that reunification
would cease on the day of the hearing, and Respondent’s counsel acknowledged
Respondent’s understanding of that fact. Therefore, Respondent consented to the
cessation of reunification efforts in order to retain visitation rights. As a result, she
has waived review of this issue on appeal.
Conclusion
In sum, because we interpret N.C.G.S. § 7B–906.1(n)(1) as requiring a
continuous, unbroken “period of at least one year,” we vacate the portion of the
permanency planning order waiving review hearings and remand the matter for
further proceedings. We also vacate the portion of the permanency planning order
pertaining to visitation, and remand for the trial court to make findings as to the cost
of supervised visitation, the person responsible for paying the cost and, if that person
is Respondent, her ability to pay the cost. Additionally, on remand, we instruct the
court to state its clear instructions regarding the duration and frequency of
Respondent’s visitation rights. The remainder of the permanency planning order is
affirmed.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
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Opinion of the Court
Judges BRYANT and BROOK concur.
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