In re J.D.V. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1061
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
J.D.V. Onslow County
No. 12 JA 38
Appeal by respondent-father from order entered 17 May 2013
by Judge Sarah C. Seaton in Onslow County District Court. Heard
in the Court of Appeals 7 April 2014.
Richard A. Penley for Onslow County Department of Social
Services, petitioner-appellee.
Jeffrey L. Miller for father, respondent-appellant.
HUNTER, Robert C., Judge.
Respondent-father appeals from the trial court’s review and
permanency planning hearing order. For the reasons discussed
herein, we reverse the trial court’s order.
Background
-2-
Respondent-father and K.H. (“the mother”) are married and
the biological parents of J.D.V. (“Jon”).1 On 31 January 2012,
the mother’s probation officer made a home visit and saw
marijuana and materials for a home methamphetamine lab in plain
view. On that same date, the parents voluntarily placed Jon
with his mother’s maternal great-aunt. On 18 February 2012,
Onslow County Department of Social Services (“DSS”) filed a
juvenile petition alleging Jon was neglected. The matter came
on for hearing on 12 March 2012 and the trial court adjudicated
Jon neglected.
The parents were incarcerated at the time the juvenile
petition was filed and remained incarcerated throughout the
case. On 20 March 2013, the trial court conducted a review and
permanency planning hearing. The trial court ceased
reunification efforts; changed the permanent plan from
reunification to guardianship and appointed the maternal great-
aunt as guardian; ceased further review hearings, and terminated
the court’s jurisdiction. Respondent-father appeals from the
review and permanency planning hearing order.
Arguments
1
To protect the identity of the juvenile and for ease of
reading, we have used a pseudonym for the minor.
-3-
Respondent-father contends that the trial court erred in
entering its order because it failed to make required findings
of fact. DSS concedes that the order is insufficient.
I. Ceasing Reunification Efforts
“This Court reviews an order that ceases reunification
efforts to determine whether the trial court made appropriate
findings, whether the findings are based upon credible evidence,
whether the findings of fact support the trial court’s
conclusions, and whether the trial court abused its discretion
with respect to disposition.” In re C.M., 183 N.C. App. 207,
213, 644 S.E.2d 588, 594 (2007).
At a review hearing conducted pursuant to section 7B-906,
the trial court shall consider the following and make written
findings as to those that are relevant:
(1) Services which have been offered to
reunite the family, or whether efforts to
reunite the family clearly would be futile
or inconsistent with the juvenile’s safety
and need for a safe, permanent home within a
reasonable period of time.
(2) Where the juvenile’s return home is
unlikely, the efforts which have been made
to evaluate or plan for other methods of
care.
(3) Goals of the foster care placement and
the appropriateness of the foster care plan.
(4) A new foster care plan, if continuation
-4-
of care is sought, that addresses the role
the current foster parent will play in the
planning for the juvenile.
(5) Reports on the placements the juvenile
has had and any services offered to the
juvenile and the parent, guardian,
custodian, or caretaker.
(6) An appropriate visitation plan.
(7) If the juvenile is 16 or 17 years of
age, a report on an independent living
assessment of the juvenile and, if
appropriate, an independent living plan
developed for the juvenile.
(8) When and if termination of parental
rights should be considered.
(9) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-906(c) (2011). The trial court may combine
a permanency planning hearing pursuant to section 7B-907 with a
section 7B-906 review hearing. N.C. Gen. Stat. § 7B-907(a)
(2011).
When the court determines that reunification
efforts are not required or shall cease, the
court shall order a plan for permanence as
soon as possible, after providing each party
with a reasonable opportunity to prepare and
present evidence. If the court’s
determination to cease reunification efforts
is made in a hearing that was duly and
timely noticed as a permanency planning
hearing, then the court may immediately
proceed to consider all of the criteria
contained in G.S. 7B-907(b)[.]
-5-
N.C. Gen. Stat. § 7B-507(c) (2011). Pursuant to section 7B-
907(b),
At the conclusion of the hearing, if the
juvenile is not returned home, the court
shall consider the following criteria and
make written findings regarding those that
are relevant:
(1) Whether it is possible for the
juvenile to be returned home
immediately or within the next six
months, and if not, why it is not in
the juvenile’s best interests to return
home;
(2) Where the juvenile’s return home is
unlikely within six months, whether
legal guardianship or custody with a
relative or some other suitable person
should be established, and if so, the
rights and responsibilities which
should remain with the parents;
(3) Where the juvenile’s return home is
unlikely within six months, whether
adoption should be pursued and if so,
any barriers to the juvenile’s
adoption;
(4) Where the juvenile’s return home is
unlikely within six months, whether the
juvenile should remain in the current
placement or be placed in another
permanent living arrangement and why;
(5) Whether the county department of
social services has since the initial
permanency plan hearing made reasonable
efforts to implement the permanent plan
for the juvenile;
(6) Any other criteria the court deems
-6-
necessary.
N.C. Gen. Stat. § 7B-907(b) (2011).
In this case, the trial court’s findings of fact numbers 1-
6 recite the prior history of the case. In finding of fact
number 7, the trial court found that DSS has made reasonable
efforts and lists those efforts. The trial court then made
additional findings as follows:
1. It is not possible for the juvenile to be
returned home immediately or within the next
six months and it is not in the juvenile’s
best interests to return to the care of
respondent parents because they have not
resolved the issues that led to the
juvenile’s removal from their home. . . .
2. Onslow County Department of Social
Services has, since the initial permanency
plan hearing, made reasonable efforts to
implement the permanent plan for the
juvenile and has exhausted all efforts to
reunify with Respondent parents and the
department should cease efforts with
reunification.
3. The best plan of care to achieve a safe,
permanent home for the juvenile within a
reasonable period of time is guardianship
with [B.H.] which is in the juvenile’s best
interest.
We conclude these additional findings are appropriately
classified as conclusions of law. “A ‘conclusion of law’ is the
court’s statement of the law which is determinative of the
matter at issue between the parties.” Montgomery v. Montgomery,
-7-
32 N.C. App. 154, 157, 231 S.E.2d 26, 28-29 (1977). When a
finding of fact is essentially a conclusion of law, it is
reviewable on appeal as a conclusion of law. In re M.R.D.C.,
166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004), disc. review
denied, 359 N.C. 321, 611 S.E.2d 413 (2005). Here, the trial
court’s order is devoid of any findings of fact to support its
conclusions of law. The trial court, as DSS concedes, did not
make specific ultimate facts based upon the evidence before it.
Without proper findings of fact, an appellate court is unable to
determine whether the trial court was correct in its conclusions
of law. See In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d
599, 602 (2002). Accordingly, the order ceasing reunification
efforts must be reversed.
II. Guardianship and Visitation
The trial court established guardianship as the permanent
plan and appointed Jon’s mother’s maternal great-aunt as his
guardian. Respondent-father contends the trial court failed to
comply with its statutory obligations under N.C. Gen. Stat. §
7B-600 and 7B-907 to make findings about the guardianship and
the rights and responsibilities which should remain with the
parents, including visitation rights.
-8-
At the conclusion of the permanency planning hearing, the
trial court “may appoint a guardian of the person for the
juvenile pursuant to G.S. 7B-600[.]” N.C. Gen. Stat. § 7B-
907(c) (2011). “[T]he court shall verify that the person . . .
being appointed as guardian of the juvenile understands the
legal significance of the placement or appointment and will have
adequate resources to care appropriately for the juvenile.”
N.C. Gen. Stat. § 7B-907(f) (2011). This Court has explained
that “N.C. Gen. Stat. § 7B-907(f) [does not] require that the
court make any specific findings in order to make the
verification.” In re J.E., 182 N.C. App. 612, 616-617, 643
S.E.2d 70, 73, disc. review denied, 361 N.C. 427, 648 S.E.2d 504(2007). This Court has looked to evidence in the record to
determine whether the trial court complied with section 7B-
907(f). Id. at 617, 643 S.E.2d at 73.
Here, the maternal great-aunt testified at the hearing.
She testified in great detail about Jon’s needs and acknowledged
that she was willing to accept the responsibility. The DSS
court report, which the trial court considered, stated that the
great-aunt “has provided [Jon] with a safe and loving
environment for the last year and is agreeable to being granted
guardianship of [Jon].” The guardian ad litem report similarly
-9-
indicates that the great-aunt was prepared to “continue on a
long term basis with [Jon] living in her home.” Therefore,
based on the foregoing, we conclude the requirements of section
7B-907(f) were met.
If the trial court appoints a guardian, it must make a
finding regarding “the rights and responsibilities which should
remain with the parents[.]” N.C. Gen. Stat. § 7B-907(b)(2)
(2011). Here, the trial court failed to make such a finding.
The trial court’s order also fails to properly address
visitation. The trial court noted in its 12 October order:
“That upon release from jail the respondent parents are allowed
visitation with the juvenile, as per the standard visitation
policy of the Onslow County Department of Social Services.”
Any dispositional order under which a
juvenile is removed from the custody of a
parent . . . or under which the juvenile’s
placement is continued outside the home
shall provide for appropriate visitation as
may be in the best interests of the juvenile
and consistent with the juvenile’s health
and safety.
N.C. Gen. Stat. § 7B-905(c) (2011). “An appropriate visitation
plan must provide for a minimum outline of visitation, such as
the time, place, and conditions under which visitation may be
exercised.” In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647,
-10-
652 (2005). The order in this case contains no provisions
regarding visitation.
III. Further Review Hearings
The trial court ordered “[t]hat further reviews in this
matter are hereby ceased.” The court may waive the holding of
review hearings if the court finds by clear, cogent, and
convincing evidence that:
(1) The juvenile has resided with a relative
or has been in the custody of another
suitable person 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;
(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; and
(5) The court order has designated the
relative or other suitable person as the
juvenile’s permanent caretaker or guardian
of the person.
N.C. Gen. Stat. § 7B-906(b) (2011). In this case, the trial
court failed to make the requisite findings pursuant to sections
7B-906(b)(3) and (4). Thus, the trial court erred in ceasing
further review hearings. See In re L.B., 184 N.C. App. 442,
-11-
449, 646 S.E.2d 411, 415 (2007) (reversing and remanding on this
issue where the trial court’s order failed to satisfy the
requirements of sections 7B-906(b)(1), (3), and (4)).
IV. Terminating Jurisdiction
Lastly, respondent-father contends the trial court erred in
establishing guardianship as the permanent plan and then
terminating the juvenile court’s jurisdiction because such an
order is contrary to statute, inconsistent as a matter of law,
and denies the parents’ due process rights.
“When the court obtains jurisdiction over a juvenile,
jurisdiction shall continue until terminated by order of the
court or until the juvenile reaches the age of 18 years or is
otherwise emancipated, whichever occurs first.” N.C. Gen. Stat.
§ 7B-201(a) (2013). When the trial court’s jurisdiction
terminates, “[t]he legal status of the juvenile and the
custodial rights of the parties shall revert to the status they
were before the juvenile petition was filed, unless applicable
law or a valid court order in another civil action provides
otherwise.” N.C. Gen. Stat. § 7B-201(b) (2013). Moreover,
“[w]hen a district court terminates its jurisdiction over a
juvenile case, there ‘is no affirmative obligation on the
juvenile court to remain involved in the life of [the] juvenile
-12-
for a longer duration.’” In re S.T.P., 202 N.C. App. 468, 472,
689 S.E.2d 223, 226 (2010) (quoting In re A.P., 179 N.C. App.
425, 429, 634 S.E.2d 561, 563 (2006) (Levinson J., dissenting),
rev’d per curiam for reasons stated in dissent, 361 N.C. 344,
643 S.E.2d 588 (2007)).
In this case, the parties were not returned to their pre-
petition legal status. The trial court appointed a guardian and
“[t]he guardian shall operate under the supervision of the
court[.]” N.C. Gen. Stat. § 7B-600(a) (2013). The trial court
has an obligation to remain involved in the case. Thus, it was
error for the trial court to order “[t]hat juvenile jurisdiction
is hereby terminated.”
Conclusion
Based on the foregoing, we reverse the trial court’s review
and permanency planning hearing order and remand for proceedings
consistent with this opinion. “It is within the trial court’s
discretion to allow additional evidence prior to making findings
of fact and conclusions of law.” In re J.S., 165 N.C. App. 509,
514, 598 S.E.2d 658, 662 (2004).
REVERSED AND REMANDED.
Judges GEER and McCULLOUGH concur.
-13-
Report per Rule 30(e).