In re T.W.C. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1097
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
IN THE MATTER OF:
Chatham County
Nos. 12 JA 40-42
T.W.C., M.L.N., E.J.N.
Appeal by respondents from order entered 8 August 2013 by
Judge Beverly Scarlett in Chatham County District Court. Heard
in the Court of Appeals 27 February 2014.
Holcomb & Cabe, L.L.P., by Carol J. Holcomb and Samantha H.
Cabe, for petitioner-appellee Chatham County Department of
Social Services.
Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler,
for guardian ad litem.
Mercedes O. Chut, for respondent-appellant mother.
Sydney Batch, for respondent-appellant father.
CALABRIA, Judge.
Respondent-mother and respondent-father (collectively
“respondents”) appeal from the trial court’s order ceasing
reunification efforts with respondents and awarding guardianship
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of respondent-mother’s child “Thomas1” to his paternal
grandparents2 and respondents’ children “Luke” and “Eliot” to
their current foster parents. We affirm the portion of the
trial court’s order regarding Thomas and the cessation of
reunification efforts with respondent-mother, but reverse and
remand the portions of the order which award guardianship of
Luke and Eliot to non-relative foster parents, deny visitation
to respondent-father, and cease reunification efforts with
respondent-father.
I. Background
On 5 September 2012, the Chatham County Department of
Social Services (“DSS”) filed juvenile petitions alleging that
Thomas, Luke, and Eliot (collectively “the boys”) were neglected
and dependent juveniles. The petitions alleged, inter alia,
that the boys were residing with respondents when they witnessed
a physical confrontation between respondents and other
individuals. During the altercation, respondent-mother hit a
man on the head with a baseball bat. DSS obtained nonsecure
custody of the boys and on 21 September 2012, the trial court
ordered Luke and Eliot placed in an unlicensed foster home. On
1
The parties have stipulated to pseudonyms for the minor
children involved in this case.
2
Thomas’s father is not a party to this appeal.
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16 November 2012, the trial court adjudicated the boys neglected
and dependent juveniles.
DSS retained custody of the boys after the adjudication and
through two review hearings. After a permanency planning
hearing on 25 July 2013, the trial court entered an order
directing DSS to cease reunification efforts with respondents
and awarding guardianship of Thomas to his paternal grandparents
and of Luke and Eliot to their foster parents. Respondents
appeal.
II. Respondent-Mother’s Separate Issues
On appeal, respondent-mother individually raises two
issues: (1) that portions of the trial court’s finding of fact 3
were unsupported by competent evidence; and (2) that the trial
court’s findings do not support its conclusion that
reunification efforts with respondent-mother should cease. We
disagree with both arguments.
“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,
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213, 644 S.E.2d 588, 594 (2007). “‘An abuse of discretion occurs
when the trial court’s ruling is so arbitrary that it could not
have been the result of a reasoned decision.’” In re N.G., 186
N.C. App. 1, 10-11, 650 S.E.2d 45, 51 (2007) (quoting In re
Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)),
aff’d per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
A. Finding of Fact 3
Respondent-mother first contends that portions of finding
of fact 3 are not supported by the evidence presented at the
permanency planning hearing. The challenged portions of this
finding are as follows:
3. It is not possible for the juveniles to
be returned home in the immediate future or
within the next six (6) months and in
support thereof, the court specifically
finds:
a. Respondent mother has a history of
mental health and substance abuse
issues. She has not participated in
either substance abuse treatment or
mental health treatment. She reports
that she has had two (2) appointments at
Daymark but has no verification to
support her attendance. She has not
provided a drug screen to the department
since April 2013.
. . .
g. Respondent mother has not been in
consistent contact with the department or
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her social worker.
h. Respondent mother has not seen her
children or worked her case plan in about
fourteen (14) weeks.
1. Finding of Fact 3a
Respondent-mother first challenges the court’s finding that
she has not participated in either substance abuse or mental
health treatment, noting that there was ample evidence presented
that she attended treatments for these issues. However, while
respondent-mother is correct that the trial court’s plain
language appears to suggest that respondent-mother never
participated in treatment at any time, when read in context with
the remainder of the order it is clear that the court’s finding
refers only to the time period after April 2013. Other portions
of the court’s order include several more specific findings
which discuss respondent-mother’s irregular participation in
substance abuse treatment programs prior to that date. These
other, more detailed findings adequately establish respondent-
mother’s difficulties with obtaining appropriate treatment even
if this particular challenged finding is disregarded as being
unsupported by the evidence. Thus, regardless of whether or not
this finding is supported by the evidence, it is ultimately
immaterial to the result reached by the trial court.
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2. Findings of Fact 3g-h
With regards to the trial court’s other challenged
findings, the evidence presented at the permanency planning
hearing, which includes the report and testimony of the social
worker in charge of the case, the testimony of respondent-
mother, and the report of the children’s guardian ad litem,
provides sufficient support for those findings. The evidence at
the hearing established that after respondent-mother checked out
of Oxford House, an inpatient substance abuse treatment
facility, on 22 April 2013, her contact with her social worker
became sporadic. The social worker testified that respondent-
mother was “MIA” from 17 April to 7 May 2013 and that she failed
to attend a scheduled meeting with the social worker on 25 April
2013. Respondent-mother contacted the social worker on 20 May
2013 and stated that the social worker was to communicate only
with her attorney from that point forward. Nonetheless, in
early June 2013, respondent-mother had her mother contact the
social worker and report that respondent-mother was at Moore
Regional Hospital for substance abuse and mental health
treatment.
Additionally, respondent-mother did not appear for drug
screens on 10 May 2013 and 24 June 2013. Respondent-mother
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last visited with her children on 17 April 2013, about fourteen
weeks prior to the date of the DSS report submitted 25 July
2013. This evidence was sufficient to support the trial
court’s findings that respondent-mother had not had consistent
contact with the social worker and that she had not visited with
the boys or worked her case plan in fourteen weeks. This
argument is overruled.
B. Cessation of Reunification Efforts
Respondent-mother next contends that the trial court’s
findings of fact do not support its determination that
reunification efforts should cease. Pursuant to N.C. Gen. Stat.
§ 7B-507, the trial court may order the cessation of
reunification efforts if the court makes findings that those
efforts “clearly would be futile or would be inconsistent with
the juvenile's health, safety, and need for a safe, permanent
home within a reasonable period of time.” N.C. Gen. Stat. § 7B-
507(b)(1) (2013). The trial court made such a finding in the
instant case, and it is supported by both other findings in the
trial court’s order and by the evidence presented at the
permanency planning hearing. The trial court’s findings and the
evidence at the hearing demonstrate that respondent-mother
lacked reliable housing, that she did not provide proof of
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employment, and that she had ongoing problems with drug
addiction and mental instability which would not be resolved
within the immediate future. The evidence also demonstrated
that respondent-mother would be unable to provide a safe,
permanent home for the boys within a reasonable amount of time.
Based upon its findings and the evidence presented at the
hearing, the trial court did not abuse its discretion in
ordering that reunification efforts should cease. This argument
is overruled.
Since we have overruled respondent-mother’s separate
arguments and these are the only arguments which involve the
portion of the trial court’s order regarding Thomas, we affirm
the trial court’s order awarded guardianship to Thomas’s
paternal grandparents. In addition, we affirm the portion of
the trial court’s order which ceased reunification efforts with
respondent-mother.
III. Respondents’ Joint Issues
Respondents jointly argue that the trial court erred by
failing to place Luke and Eliot with their paternal grandmother
in the absence of any findings or evidence indicating the
paternal grandmother was unfit or placement with her was not in
their best interests. We agree.
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In placing a juvenile in out-of-home care
under this section, the court shall first
consider whether a relative of the juvenile
is willing and able to provide proper care
and supervision of the juvenile in a safe
home. If the court finds that the relative
is willing and able to provide proper care
and supervision in a safe home, then the
court shall order placement of the juvenile
with the relative unless the court finds
that the placement is contrary to the best
interests of the juvenile.
N.C. Gen. Stat. § 7B-903(a)(2)(c) (2013). To comply with this
statute, the trial court must (1) make factual conclusions and
not simply recite evidence regarding placement with a relative,
and (2) make specific findings of fact explaining why placement
with a relative would not be in the child’s best interests if
the child is not placed with the relative. In re L.L., 172 N.C.
App. 689, 704, 616 S.E.2d 392, 401 (2005)(reversing the award of
guardianship to non-relative foster parents for failing to meet
these requirements).
In the instant case, the trial court made only the
following finding concerning the potential placement of Luke and
Eliot with their paternal grandmother:
[Respondent-father] requests that his
children be placed with his mother who
attended the hearing and now states that she
is willing and able to care for both boys.
According to the Social Worker, the paternal
grandmother originally said that she could
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not take care of them as she is also taking
care of other grandchildren.
This finding does not meet the requirements of N.C. Gen. Stat. §
7B-903 as interpreted by L.L. It fails to determine whether the
paternal grandmother was actually willing and able to care for
the children, as she stated at the time of the hearing, and it
does not explain why placement with the paternal grandmother
would not be in Luke and Eliot’s best interests. As a result,
the portion of the order awarding guardianship of Luke and Eliot
to non-relative foster parents must be reversed and remanded for
the required findings.
Respondents also contend that the trial court failed to
comply with N.C. Gen. Stat. § 7B-907 and N.C. Gen. Stat. § 7B-
600(c) by failing to make findings that the non-relative foster
parents understood the legal significance of assuming
guardianship and that they had the financial resources to
provide for the children on a permanent basis. Since we are
reversing and remanding the award of guardianship to the foster
parents, we need not consider this contention as it may become
moot.
IV. Respondent-Father’s Separate Issues
In his individual appeal, respondent-father contends: (1)
that the trial court abused its discretion by failing to provide
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visitation with his children because the trial court’s findings
of fact do not support its conclusion that it is not in the
children’s best interests to visit with respondent-father; and
(2) that the trial court’s findings do not support the cessation
of reunification efforts with respondent-father. We agree with
both contentions.
A. Visitation
An order which continues placement outside a parent’s home
“shall provide for appropriate visitation as may be in the best
interests of the juvenile consistent with the juvenile’s health
and safety.” N.C. Gen. Stat. § 7B-905.1(a) (2013). Conversely,
the court may prohibit visitation or contact by a parent when it
is in the juvenile’s best interests or consistent with the
juvenile’s health and safety. See In re J.S., 182 N.C. App. 79,
86-87, 641 S.E.2d 395, 399 (2007). We review an order
disallowing visitation for abuse of discretion. C.M., 183 N.C.
App. at 215, 644 S.E.2d at 595.
This Court has previously held that, [i]n
the absence of findings that the parent has
forfeited [his or her] right to visitation
or that it is in the child’s best interest
to deny visitation[,] the court should
safeguard the parent’s visitation rights by
a provision in the order defining and
establishing the time, place[,] and
conditions under which such visitation
rights may be exercised. As a result, even
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if the trial court determines that
visitation would be inappropriate in a
particular case or that a parent has
forfeited his or her right to visitation, it
must still address that issue in its
dispositional order and either adopt a
visitation plan or specifically determine
that such a plan would be inappropriate in
light of the specific facts under
consideration.
In re K.C., 199 N.C. App. 557, 562, 681 S.E.2d 559, 563
(2009)(internal quotations and citation omitted).
In the instant case, the sole finding of fact regarding
respondent-father is that he “is currently incarcerated and is
scheduled to be released in 2014 but could be released as early
as December 2013.” The court report prepared by the social
worker and incorporated into the court’s order indicates that
respondent-father “appears to have a very loving and close bond
with both [sons] . . . .” The report also goes into more detail
as to why respondent-father was incarcerated. However, nothing
in the report suggests that the boys were harmed or placed at
risk of harm due to the conduct resulting in these convictions,
and the court did not make any findings to that effect.
Ultimately, the trial court’s order does not comply with N.C.
Gen. Stat. § 7B-905.1(a) in that it suspends visitation as to
respondent-father but fails to set out sufficient facts which
would demonstrate that visitation “would be inappropriate in
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light of the specific facts under consideration.” K.C., 199
N.C. App. at 562, 681 S.E.2d at 563. Consequently, we must
reverse and remand this portion of the trial court’s order.
B. Cessation of Reunification Efforts
Respondent-father finally argues that the trial court
failed to make adequate findings of fact to support the
conclusion of law that reunification efforts with him should
cease. As previously noted, the trial court’s only finding
regarding respondent-father was that he was incarcerated and was
scheduled to be released as early as December 2013. The court
report incorporated by the trial court in its order mentions the
reason for his incarceration, the fact his incarceration has
made it difficult for him to comply with his case plan, the
loving bond he has with his children, his participation in
Narcotics Anonymous while he has been incarcerated, and the
efforts made by DSS at reunification. This evidence does not
support a finding that reunification efforts would “clearly
would be futile or would be inconsistent with the juvenile's
health, safety, and need for a safe, permanent home within a
reasonable period of time.” N.C. Gen. Stat. § 7B-507(b)(1).
Thus, the trial court abused its discretion by ordering that
reunification efforts with respondent-father should cease. We
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reverse and remand this portion of the trial court’s order as
well.
V. Conclusion
We affirm the portions of the order ceasing reunification
efforts with respondent-mother and awarding guardianship of
Thomas to his paternal grandparents. We reverse the portions of
the order awarding guardianship of Luke and Eliot to the foster
parents, denying visitation to respondent-father, and ceasing
reunification efforts with respondent-father. We remand for
further proceedings consistent with this opinion.
Affirmed in part; reversed and remanded in part.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).