In Re A.B.

• Court: Court of Appeals of North Carolina
• Decided: January 6, 2015
• Docket: 14-901
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-901 NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2015

IN THE MATTER OF:

A.B. Cumberland County No. 12 JA 311

Appeal by respondent mother from order entered 9 May 2014

by Judge Edward A. Pone in Cumberland County District Court.

Heard in the Court of Appeals 3 December 2014.

Christopher L. Carr and James D. Dill for petitioner- appellee Cumberland County Department of Social Services.

Assistant Appellate Defender Joyce L. Terres for respondent-appellant mother.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for guardian ad litem.

DIETZ, Judge.

Respondent mother appeals from the trial court’s permanency

planning order awarding legal and physical custody and

guardianship of A.B. (“Abby”)1 to the juvenile’s maternal great

aunt. Respondent argues that the trial court did not make

1 The parties agreed to the use of this pseudonym. -2- sufficient findings in its permanency planning order. For the

reasons set forth below, we reject this argument and hold that

the trial court’s fact findings satisfy the statutory criteria.

Accordingly, we affirm the trial court’s order.

Facts and Procedural History

On 22 May 2012, the Cumberland County Department of Social

Services (DSS) filed a juvenile petition alleging that Abby and

her two cousins were neglected, seriously neglected, and

dependent. At the time DSS filed the petition, Abby lived with

her mother, grandmother, aunt, and two cousins. In the juvenile

petitions, DSS alleged that the family lived without electricity

from 10 October 2011 to 8 November 2011 and that the juveniles

frequently asked neighbors for food. DSS further alleged that

Abby’s cousin was withdrawn from her public school in September

2010 and had not been enrolled in a public school since that

date. Abby’s grandmother stated that the children were

homeschooled, but Respondent could not produce any documentation

or proof of proper homeschooling. DSS also alleged that the

family had a history of unstable housing and were uncooperative

with DSS since 2011.2

2 The family unit was also the subject of a DSS referral in 2011. -3- DSS was unable to locate the family until 18 June 2012 when

they were found near the Cape Fear Valley Medical Center. Abby

and her cousins were disheveled, dirty, and smelled bad. The

three children told social workers that they had not eaten all

day. The juveniles also stated that they had been sleeping in a

storage facility and on the floor of the nearby hospital, that

they bathed in the hospital bathroom, and that they had to

resort to stealing food from hospital carts to get enough to

eat. DSS obtained non-secure custody of Abby and her cousins

and the juveniles were placed with their maternal great aunt.

At a hearing on 7 January 2013, the parties stipulated that

Abby and her cousins were dependent and the allegations of

neglect and serious neglect were dismissed. The trial court

adjudicated Abby dependent and found that “among the issues

which led to the removal of the juveniles was the unstable

lifestyle of the Respondents, lack of appropriate housing,

failure to obtain appropriate medical care, and failure to

[provide] appropriate education for the juveniles.” Respondent

was ordered to submit to a psychological evaluation and a

parenting assessment, to successfully complete life skills

training, and “to obtain and maintain stable and suitable

housing, to include more than a month-to-month lease.” -4- Respondent was granted one hour of supervised visitation with

Abby, to be supervised by the maternal great aunt, and to take

place at a public location as agreed upon by both parties.

On 27 June 2013, the trial court entered an order following

a review hearing held on 29 April 2013. The court found that

there was no substantial change since the entry of the

adjudication order and that the issues that led to the removal

of the juveniles had not been alleviated. The trial court also

found that Respondent provided insufficient documentation of

counseling services to assess her progress and still possessed a

month-to-month lease for housing.

On 31 January 2014, the trial court entered a permanency

planning order after a hearing held 26 August 2013. The court

again found that there had been no substantial change in the

case and the issues of unstable housing, inappropriate care and

supervision, and lack of appropriate alternative child care

arrangements had not been alleviated. DSS’s report, which was

incorporated into the trial court’s order, stated that

Respondent was facing eviction from her home after falling four

months behind in rent. The court also found that Respondent had

failed to maintain contact with the social worker and had

cancelled face-to-face appointments. The trial court further -5- found that it would not be possible for the juveniles to be

returned home at that time or within the next six months as the

mothers were still “in need of services to assist in alleviating

the conditions which led to the removal of the juveniles.” Abby

also told the social worker that “although she misses her

Mother, she is happy with living with her Aunt and would rather

remain there.”

On 9 May 2014, the trial court entered another permanency

planning order. The court incorporated into the order the

contents of both the DSS and guardian ad litem reports, as well

as the findings from all previous orders. The trial court again

found that it was not possible for the juveniles to be returned

home immediately or within the next six months and awarded legal

and physical custody and guardianship of Abby and her cousins to

their maternal great aunt. The trial court also ordered that

DSS be allowed to close Abby’s juvenile case file and “shall be

relieved of further duties in this matter.” The order stated

that no further judicial reviews were necessary, “unless upon a

Motion for Review filed by any party, or upon the Court’s own

motion.” Respondent timely appealed. -6- Analysis

I. Findings Concerning Reunification Services

Respondent first argues that the trial court erred by

failing to make sufficient findings as to services offered to

reunite Abby with Respondent. We disagree.

On appeal, the “review of a permanency planning order is

limited to whether there is competent evidence in the record to

support the findings and the findings support the conclusions of

law.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161

(2004). “If the trial court’s findings of fact are supported by

any competent evidence, they are conclusive on appeal.” Id.

Respondent does not challenge the trial court’s findings but

contends that those findings are insufficient. Thus, the trial

court’s existing findings are binding on appeal and we review

whether those findings support its conclusions. In re J.M.W.,

179 N.C. App. 788, 792, 635 S.E.2d 916, 919 (2006).

Pursuant to N.C. Gen. Stat. § 7B-906.1, at a permanency

planning hearing the trial court “shall consider the following

criteria and make written findings regarding those that are

relevant.” N.C. Gen. Stat. § 7B-906.1(d) (2013). Among the

criteria listed, the court shall consider reunification

services, visitation reports, whether efforts to reunite the -7- child and parent would be futile, placement reports, and any

other criteria the court deems necessary. Id.

Here, the trial court found

[t]hat the [c]ourt approves of the permanent plan of guardianship with relatives, and finds that the plan is consistent with the juveniles’ best interests. The [c]ourt further finds that [DSS] has been making reasonable efforts, as required by N.C. Gen. Stat. §§ 7B-507 and 7B-906, to eliminate the need for continued placement of the juveniles outside of the home to include, but not limited to: monitoring the juveniles’ placements; coordinating services for the juveniles; and ensuring that the needs of the juveniles are being met.

The Juvenile Code defines “reasonable efforts” as:

[t]he diligent use of preventive or reunification services by a department of social services when a juvenile's remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.

N.C. Gen. Stat. § 7B-101(18) (2013).

Respondent argues that the court’s finding quoted above is

insufficient. Although it states that DSS is “making reasonable

efforts . . . to eliminate the need for continued placement of -8- the juveniles outside the home,” and the statutory term

“reasonable efforts” includes “the diligent use of preventive or

reunification services,” Respondent contends that the findings

are insufficient because they do not list the particular

reunification services that were offered. Respondent argues

that without specifically identifying those services in its

findings, the findings do not comply with N.C. Gen. Stat. § 7B-

906.1(d).

We disagree. The trial court’s findings of fact must only

“be sufficiently specific to enable an appellate court to review

the decision and test the correctness of the judgment.” In re

J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)

(internal quotation marks and citation omitted). In making fact

findings, a trial court “must through processes of logical

reasoning from the evidentiary facts find the ultimate facts

essential to support the conclusions of law.” In re Harton, 156

N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (internal

quotation marks and citations omitted).

Here, the trial court did not simply adopt the DSS and

guardian ad litem reports, but made its own additional findings

pertaining to the relevant factors laid out in N.C. Gen. Stat. §

7B-906.1(d). Among those findings, the trial court expressly -9- found that DSS made “reasonable efforts” to eliminate the need

for continued placement, a statutory term that includes use of

“preventive or reunification services.” N.C. Gen. Stat. § 7B-

101(18).

This finding is supported by competent evidence presented

at the hearing. The social worker testified that she provided

housing information to Respondent in the summer of 2013 and

again the day before the February hearing. DSS’s report also

stated it arranged for Respondent to attend parenting classes—

which she did—and further recommended that she continue

individual counseling.

Accordingly, we hold that the trial court’s findings are

sufficiently specific to show that the trial court considered

the necessary statutory factors, including reunification

services, and made written findings regarding those that are

relevant, as required by N.C. Gen. Stat. § 7B-906.1(d). We

therefore reject Respondent’s argument on this issue.

II. Finding Concerning Possible Reunification Within Six Months

Respondent next argues that the trial court erred by

failing to make a specific finding on whether it was possible

for Abby to be returned to Respondent within six months and why -10- such placement was not in Abby’s best interest, as required by

N.C. Gen. Stat. § 7B-906.1(e)(1). We disagree.

In the permanency planning order, the trial court found

That it is not possible for the juveniles to be returned home immediately, or within the next six (6) months, inasmuch as the Respondent Mothers remain in need of services to assist in alleviating the conditions which led to the removal of the juveniles. That return of the juveniles to the custody of the Respondents would be contrary to the welfare and best interests of the juveniles in that the juveniles remain in need of more care and supervision than can be provided by the Respondents.

The court also found that “among the issues that led to the

removal of the juveniles was unstable housing; that continues

through today’s date.”

Respondent first argues that the court erred because it

combined all the juveniles together and did not make separate

findings as to each juvenile. But at the time of the DSS

referral, and during the entire two years after DSS’s

involvement, Respondent lived with her sister and mother.

Respondent also has no income to obtain her own housing.

Respondent contends that Abby was removed from the home for

different reasons than her cousins because one of Abby’s cousins

also was found to not be receiving proper medical care for her

seizure disorder. However, DSS’s report stated that the -11- educational neglect of both Abby and her cousin was concerning

and that the children’s immunizations were not kept current.

Thus, Abby was removed from the home for reasons that were

equally applicable to her and her two cousins, and which had not

been alleviated at the time of the hearing. The family was

living together as a unit and the court did not err by not

including separate findings as to each juvenile.

Respondent next argues that the above-referenced findings

are not sufficiently specific because they do not identify the

particular services needed by Respondent and do not clarify how

the conditions that led to the removal still persisted at the

time of the hearing. But as explained above, the trial court

need not reference every underlying piece of evidence supporting

its fact finding. Instead, the trial court must “from the

evidentiary facts find the ultimate facts essential to support

the conclusions of law.” Harton, 156 N.C. App. at 660, 577

S.E.2d at 337.

Here, the applicable statute required the trial court to

make findings about whether it was “possible for the juvenile to

be placed with the parent within the next six months and, if

not, why such placement is not in the juvenile’s best

interests.” N.C. Gen. Stat. § 7B-906.1(e)(1). The trial court -12- made the precise findings required by the statute. If

Respondent believed those findings were not supported by

competent evidence in the record, she should have challenged

them on the ground that they were unsupported by the record (she

did not). But even if Respondent had done so, we readily would

have concluded that the findings are supported by competent

evidence.

The trial court expressly found that unstable housing was

among the issues that led to the removal of Abby and that the

unstable housing continued through the date of the order at

issue. Additionally, the permanency planning order incorporated

all previous orders and their findings as well as the DSS and

guardian ad litem reports. In the DSS report, the social worker

indicated that prior to the February 2014 hearing, Respondent

had moved again and left no forwarding address.

During the hearing, the social worker testified that “in

the past two years, [DSS] has not seen the progress on the part

of the Respondent mother that would make them feel comfortable

allowing the child to go back to her custody and be with her

permanently.” The social worker also stated in the report that

“it is not possible for the juveniles to return home immediately

or within the next six months. [Respondent] and [her sister] -13- continue to have unstable housing and have not actively

participated in their case plan reviews for the past six

months.”

The court also found that the placement with the great aunt

was going well, Abby was receiving proper care and supervision,

the placement was stable, and that “the continuation in this

placement would be consistent with the best interests of the

juveniles.” Abby also was doing well in school and expressed a

desire to continue living with her great aunt.

In short, the trial court satisfied the statutory criteria

by finding that reunification was not possible within the next

six months and that reunification would be contrary to the

child’s best interests. The court’s fact findings also are

supported by competent evidence in the record. Thus, we reject

Respondent’s argument on this issue.

III. Visitation in a “Public Location”

Finally, Respondent argues that the trial court erred by

ordering that visitation between Respondent and Abby be at a

“public location” as agreed upon by the parties, without

specifying in the order the particular “public location” at

which visitation must occur. We disagree.

Pursuant to N.C. Gen. Stat. § 7B-905.1, if the juvenile is -14- placed in the guardianship of a relative, “any order providing

for visitation shall specify the minimum frequency and length of

the visits and whether the visits shall be supervised.” N.C.

Gen. Stat. § 7B-905.1(c) (2013). Here, the trial court complied

with Section 7B-905.1(c) by specifying that Respondent “be

allowed a minimum of one (1) hour supervised visitation every

Saturday from 4:00 p.m. until 5:00 p.m. . . . to be supervised

by the Maternal Great Aunt . . . at a public location as agreed

upon by the parties.”

Respondent argues the trial court erred because the order

did not state the specific place of visitation, relying on In re

Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971). But Stancil

is readily distinguishable from the facts here. In that case,

the court did not specify any visitation plan and left it to the

custodian of the child to determine the time, place, and

conditions in which the mother may visit with her child. Id. at

552, 179 S.E.2d at 849. Here, Respondent was given a specific

day and time to visit with Abby and was told the visitations

must be in a public location supervised by the great aunt.

Respondent contends that Abby’s guardian could deny her

visitation by stating that they could not agree on a place to

visit. But there is no evidence that Respondent has ever been -15- denied visitation or that designating a visitation place has

been an issue. Indeed, the record indicates that Respondent has

been visiting with Abby weekly and that the visits are going

well. Additionally, our Court previously has upheld an order

stating that visitation shall be in a “public place.” In re

A.A., 176 N.C. App. 189, 625 S.E.2d 917, 2006 WL 387972 (2006)

(unpublished). And, to the extent the parties are unable to

agree on an appropriate “public location” at some future date,

Respondent can return to the trial court to resolve the issue.

Accordingly, we hold that the trial court’s visitation plan

complies with N.C. Gen. Stat § 7B-905.1(c).

Conclusion

The trial court made sufficiently specific findings in its

permanency planning order and those findings are supported by

clear and convincing evidence. The court’s findings, in turn,

support the trial court’s conclusions of law. Therefore, the

trial court’s order granting physical and legal custody and

guardianship of Abby to her maternal great aunt is affirmed.

AFFIRMED.

Judges BRYANT and DILLON concur.

Report per Rule 30(e).