In re A.A.

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 14-291
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-291 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF: Stokes County A.A. Nos. 11 JA 27-28 L.A.

Appeal by respondent from orders entered 26 April 2013 and

15 October 2013 by Judge Angela Puckett in Stokes County

District Court. Heard in the Court of Appeals 30 June 2014.

Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.

Mary McCullers Reece for respondent-appellant father.

ELMORE, Judge.

Respondent-father appeals from two orders. The first order

relieved the Stokes County Department of Social Services (“DSS”)

from further efforts toward reunification as to minor children

A.A. (“Adam”) and L.A. (“Lisa”).1 The second order awarded

guardianship of the minor children to their maternal aunt and

uncle, Mr. and Mrs. A. Respondent-father preserved his right to

1 We use pseudonyms to protect the children’s privacy. -2- appeal the order ceasing reunification efforts and filed notice

of appeal from both orders. See N.C. Gen. Stat. §§ 7B-507(c),

7B-1001(a)(4), (5)b., (b) (2013).

I. Procedural History

At the time of his birth in May 2008, Adam tested positive

for opiates, cocaine, and amphetamines. Lisa also tested

positive for opiates and cocaine when she was born in April

2011. During its investigation of the family in May 2011, DSS

conducted a pill count of respondent-father’s Vicodin, Flexeril,

and Adderall prescriptions and found that “all medication [was]

short of the recommended dosage.” On 13 May 2011, respondent-

father refused to submit to a random drug screen requested by

DSS and exhibited symptoms of intoxication.

On 6 June 2011, DSS obtained non-secure custody of Adam and

Lisa and filed petitions2 alleging that they were neglected

juveniles as defined by N.C. Gen. Stat. § 7B-101(15) (2013).

The trial court entered adjudications of neglect on 8 November

2011. Respondent-mother stipulated that her substance abuse

prevented her from caring for the children. Respondent-father

was incarcerated for defrauding a drug screen while on probation

2 We note the petition filed in 11 JA 28 is not included in the record on appeal. -3- in September 2011. He was released from prison on 27 February

2012, and signed a case plan with DSS on 9 March 2012.

The trial court ceased reunification efforts as to

respondent-mother on 19 April 2012. Respondent-father worked on

his case plan by visiting with the children, obtaining stable

housing and employment, complying with random drug screens, and

attending substance abuse treatment and anger management

counseling with John Pulliam of Choose Life Addiction Recovery

Services. Following a review hearing on 20 December 2012, the

trial court authorized a trial placement of the children in

respondent-father’s home. In response to the guardian ad

litem’s report that respondent-father had allowed respondent-

mother to speak to Adam and Lisa by telephone, the court

expressly forbade any contact between the children and their

mother.

After a review hearing on 21 March 2013, the trial court

entered an order terminating the children’s trial placement and

relieving DSS of further efforts to reunify the children with

respondent-father. The trial court also held a permanency

planning hearing on 5 September 2013 and entered an order on 15

October 2013, changing Adam and Lisa’s permanent plan from

reunification with respondent-father to guardianship and -4- awarding guardianship of the children to their maternal aunt and

uncle, Mr. and Mrs. A.

II. Ceasing Reunification Efforts

On appeal, respondent-father claims that the trial court

erred in ceasing reunification efforts under N.C. Gen. Stat. §

7B-507(b)(1) (2013). He contends that many of the trial court’s

findings of fact in support of its decision constitute mere

recitations of witness testimony or are unsupported by the

evidence. The remaining findings, respondent-father argues, are

insufficient to support the trial court’s conclusion that

further reunification “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).

“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) (citation omitted). Under N.C.

Gen. Stat. § 7B-507(b)(1) (2013), “[a] trial court may cease -5- reunification efforts upon making a finding that further efforts

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[.]” Id. at 214, 644 S.E.2d at 594

(quotation omitted). Though characterized as a finding or

“‘ultimate finding[,]’ the determination that grounds exist to

cease reunification efforts under N.C.G.S. § 7B-507(b)(1) is in

the nature of a conclusion of law that must be supported by

adequate findings of fact.” In re E.G.M., __ N.C. App. __, __,

750 S.E.2d 857, 867 (2013) (quoting In re I.R.C., 214 N.C. App.

358, 363, 714 S.E.2d 495, 499 (2011); citing In re I.K., __ N.C.

App. __, __, 742 S.E.2d 588, 595 (2013)).

We conclude that the review order entered on 26 April 2013

lacks sufficient findings of fact to support the trial court’s

ultimate finding under N.C. Gen. Stat. § 7B-507(b)(1). “[A]

proper finding of facts requires a specific statement of the

facts on which the rights of the parties are to be determined,

and those findings must be sufficiently specific to enable an

appellate court to review the decision and test the correctness

of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d

653, 657 (1982). This Court has repeatedly emphasized that

“‘[r]ecitations of the testimony of each witness do not -6- constitute findings of fact by the trial judge, because they do

not reflect a conscious choice between the conflicting versions

of the incident in question which emerged from all the evidence

presented.’” Moore v. Moore, 160 N.C. App. 569, 571-72, 587

S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505

n.1, 313 S.E.2d 193, 195 n.1 (1984)) (emphasis in original).

It appears that the trial court’s decision to cease

reunification efforts was based primarily on evidence that

respondent-father had abdicated his role as the children’s

caretaker and/or exposed the children to contact with

respondent-mother during the trial placement. Of particular

concern were the amount of time Lisa had spent in the care of

her paternal grandmother, rather than respondent-father, and the

whereabouts of both children on the night and morning of 13-14

March 2013. After hearing conflicting evidence on these issues,

however, the trial court failed to enter affirmative findings of

fact to resolve them.3 Instead, it summarized the conflicting

accounts of respondent-father, his brother, and his mother and

found generally that respondent-father’s “testimony, under oath,

was untruthful and not credible in any way.” While it is

3 The court announced in open court “that at least one of the children was staying with her grandmother” but did not include this finding in its written order. -7- possible to construe this finding as an implicit adoption of the

testimony of respondent-father’s mother and brother, it is not

the role of this Court to infer necessary findings where none

appear. See State v. Brown, 314 N.C. 588, 596, 336 S.E.2d 388,

393 (1985) (“It is the duty of the finder of fact, not this

Court, to resolve disputed questions of fact.”); see also In re

A.S., 190 N.C. App. 679, 691, 661 S.E.2d 313, 321 (2008)

(remanding for more specific dispositional findings where the

trial court found that “the statements set forth in the Court

Report of [the] social worker . . . are true and the statements

set forth in the Court Report of guardian ad litem . . . are

true”), aff'd per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009).

We agree with respondent-father that the remaining findings

do not support the trial court’s determination that further

reunification efforts “would clearly be futile and inconsistent

with the juveniles’ health, safety, and need for a safe,

permanent home within a reasonable amount of time.” Finding 22

states that respondent-father “has not been taking care of the

children as court ordered in the trial placement.” However, the

order authorizing the trial placement contains no specific

directives regarding the children’s care other than (1) -8- obtaining daycare approved by DSS;4 (2) providing bi-weekly and

Christmas visitation to Mr. and Mrs. A.; and (3) forbidding

contact “between the children and the mother.” The trial court

neither made findings that respondent-father violated these

provisions5 nor did it make any evidentiary findings that would

logically support a conclusion that respondent-father violated

the terms of the 18 February 2013 trial placement order.

Finding 23 states generally that respondent-father “‘did

his own thing,’ after trial placement, stopped complying with

his case plan, and in fact made no further effort on his case

plan, regressing on his case plan.” The only specific findings

that address respondent-father’s compliance with his case plan

are as follows:

19. [Respondent-father] noted that he’d been ordered to continue his counseling [at] “a court date before last, to continue his anger management classes, but he had, as of the last court date, a letter of completion for his substance abuse treatment and anger management.” He stopped going to the sessions.

20. [Respondent-father] did not complete his drug counseling, as he’s been ordered.

4 Both the trial court and DSS agreed to respondent-father’s proposal to allow his mother to provide daycare for the children from 20 December 2012 until 2 January 2013. 5 Respondent-father testified that his children attended MudPies daycare at the time of the 21 March 2013 hearing. -9-

21. [Respondent-father] had maintained weekly contact with DSS as ordered until 1- 19-13. [He] failed to contact DSS again until 2-12-13. [He] did not provide DSS with a copy of his work schedule as DSS requested on 2-15-13 until 3-7-13.

As for Finding 20, the evidence showed that John Pulliam

certified by letter dated 24 November 2012 that respondent-

father had “successfully completed his individualized treatment

program with CHOOSE LIFE” and that “[a]nger management and

relapse prevention education and training have been provided.”

The trial court held a permanency planning hearing five days

later. In the resulting order entered 22 January 2013, the

trial court acknowledged Pulliam’s letter but ordered

respondent-father “to continue counseling with John Pulliam,

where he will also address his anger issues in the counseling

sessions.” However, the trial court held a review hearing on 20

December 2012 and authorized the children’s trial placement with

respondent-father in an order entered 18 February 2013. In this

order, the trial court found that respondent-father “is

successfully working his case plan” and made no reference to a

requirement that he continue counseling with Pulliam. The order

is likewise silent as to respondent-father’s need for further

“drug counseling” as stated in Finding 20. -10- By the time of the 20 December 2012 review hearing,

respondent-father had ceased his counseling with Pulliam. Had

the trial court deemed additional counseling to be necessary, we

find it reasonable to assume that it would have noted the issue

in its 18 February 2013 order and directed respondent-father to

resume his counseling as a condition of the trial placement.

Under these circumstances, respondent-father’s failure to attend

counseling with Pulliam from 20 December 2012 until the next

review hearing on 21 March 2013 is insufficient to justify a

ceasing of reunification efforts under N.C. Gen. Stat. § 7B-

507(b).

Finding 21, which is uncontested, notes that respondent-

father missed two weekly contacts with DSS and delayed notifying

DSS of his work schedule. See generally Koufman v. Koufman, 330

N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (ruling that uncontested

findings are binding on appeal). However, we do not believe

that these omissions support the trial court’s assessment in

Finding 23 that respondent-father “stopped complying with his

case plan, and in fact made no further effort on his case plan”

after the trial placement was approved on 20 December 2012.

Rather, Finding 21 notes that respondent-father contacted DSS on -11- 12 February 2013 and provided his work schedule on 7 March 2013.6

“There is nothing impermissible about describing testimony,

so long as the court ultimately makes its own findings,

resolving any material disputes.” In re C.L.C., 171 N.C. App.

438, 446, 615 S.E.2d 704, 708 (2005), aff'd per curiam, 360 N.C.

475, 628 S.E.2d 760-61 (2006). “Where there is directly

conflicting evidence on key issues, it is especially crucial

that the trial court make its own determination as to what

pertinent facts are actually established by the evidence, rather

than merely reciting what the evidence may tend to show.” In re

Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000)

(citations omitted). In the case sub judice, the trial court

failed to resolve the evidentiary disputes most salient to its

decision under N.C. Gen. Stat. § 7B-507(b)(1). Therefore, we

must remand for further findings on this issue.

6 The 15 October 2013 order that awards guardianship to Mr. and Mrs. A. includes additional findings regarding respondent- father’s non-compliance with his case plan after reunification efforts ceased. However, we find no statutory authority to consider these subsequent findings in our review of the 26 April 2013 order ceasing reunification efforts. But cf. In re L.M.T., 367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013) (Because N.C. Gen. Stat. § 7B-1001(a)(5)(a) (2013) directs the appellate court to “review the order to cease reunification together with an appeal of the termination of parental rights order, . . . incomplete findings of fact in the cease reunification order may be cured by findings of fact in the termination order.”) -12- III. Guardianship

In light of our decision to vacate the order ceasing

reunification efforts, respondent-father contends that we must

also vacate the succeeding order that changed the children’s

permanent plan and awarded guardianship to Mr. and Mrs. A. We

agree. Because additional findings are needed to determine

whether DSS must continue its reasonable efforts to reunify the

children with respondent-father under N.C. Gen. Stat. § 7B-

507(b), we must also vacate the subsequent permanency planning

order entered 15 October 2013. In re I.K., __ N.C. App. at __

n.6, 742 S.E.2d at 596 n.6 (rejecting the “argument that we need

only look to whether the court properly concluded that

guardianship is in the child’s best interest without considering

the adequacy of the court’s findings under §§ 7B-507 and 7B-

907”).

IV. Conclusion

The 26 April 2013 order ceasing reunification efforts is

hereby vacated. We remand for the entry of additional findings

of fact on the need for DSS to make further reunification

efforts under N.C. Gen. Stat. § 7B-507. See id. at __, 742

S.E.2d at 596. “The [trial] court may receive additional

evidence on this issue, within its sound discretion.” In re -13- E.G.M., __ N.C. App. __, __, 750 S.E.2d 857, 868 (2013)

(citation omitted). The permanency planning order entered 15

October 2013 is also vacated.

Vacated and remanded.

Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

Report per Rule 30(e).