In re: M.G.B., T.J.B.

• Court: Court of Appeals of North Carolina
• Decided: May 7, 2024
• Docket: 23-853
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 23-853

Filed 7 May 2024

Alamance County, Nos. 20 JA 46, 20 JA 155, 20 JA 156

IN THE MATTER OF:

M.G.B., T.J.B., H.E.D.,

Juveniles.

Appeal by Respondent Grandmother from Order entered 2 June 2023 by Judge

Larry D. Brown, Jr., in Alamance County District Court. Heard in the Court of

Appeals 2 April 2024.

Jamie L. Hamlett for Petitioner-Appellee Alamance County Department of Social Services.

Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Jacky L. Brammer, for Respondent-Appellant Grandmother.

Matthew D. Wunsche for Guardian ad Litem.

HAMPSON, Judge.

Factual and Procedural Background

This case arises from Respondent-Grandmother’s (Grandmother) appeal from

the trial court’s Permanency Planning Order ceasing reunification efforts and

endorsing a primary plan of adoption with a secondary plan of guardianship. The

record reveals the following: IN RE: M.G.B., T. J. B., H.E.D.

Opinion of the Court

In 2020 Holly, Thomas, and Mary,1 respectively four years old, three years old,

and an infant at that time, were originally adjudicated neglected due to their mother’s

substance abuse and domestic violence between their parents. Grandmother is the

paternal grandmother of the children. Following the original adjudication, the trial

court granted Grandmother full legal and physical custody of Thomas. In 2021, the

trial court granted Grandmother and the children’s father (Father) joint custody of

Holly and Mary. When granting custody, the trial court found that Grandmother had

been essentially the children’s parent for the majority of their lives and had a strong

bond with her grandchildren. The children lived in Grandmother’s home with Father

and their paternal great uncle (Uncle).

In July 2021, Holly began experiencing discomfort and itching around her

stomach, vaginal discharge, and the frequent need to urinate. On 4 August 2021,

Holly tested positive for gonorrhea. Father subsequently tested positive for

gonorrhea. Father denied allegations of sexual abuse, attempting to explain Holly’s

infection by speculating that transmission could have occurred through a towel or

toilet seat. On 7 August 2021, the Alamance County Department of Social Services

(DSS) received the report of Holly’s positive test and gave Grandmother the option

for the children to stay in the family home only if Father and Uncle would not be

present. Grandmother had the children placed with a family friend because she did

1 The juveniles are referred to by the parties’ stipulated pseudonyms.

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not want Father or Uncle to be “without entertainment” and “without cable.”

Grandmother denied the possibility of sexual abuse. On 9 August 2021,

without consulting DSS, Grandmother picked the children up from the family friend

and took them to UNC Hospital for medical testing. She told medical staff she wanted

the children tested for “venereal diseases” because she believed Holly’s gonorrhea test

was inaccurate and she wanted to clear the names of the men in the household.

During this examination, Holly presented with “redness, swelling, and

abnormal discharge” in the vaginal area and again tested positive for gonorrhea.

Mary also presented with abnormal discharge, but neither she nor Thomas tested

positive for any sexually transmitted diseases. After the examinations, DSS

instructed hospital staff to release the children to the family friend, not Grandmother,

who had become uncooperative and was detained by UNC police.

On 10 August 2021, DSS filed petitions alleging the children were neglected

juveniles and Holly was an abused juvenile. The petitions alleged Grandmother was

“persistent that nobody hurt the children and was in denial regarding [Holly] having

[g]onorrhea.” The petitions further detailed DSS’s concerns that Grandmother was

“not placing the physical or emotional well-being of the juveniles first” and that the

children were “at risk of significant emotional and/or physical harm” if they were

returned to Grandmother’s care.

Holly submitted to a forensic interview in August and a subsequent Child

Medical Evaluation in September 2021. During these interviews, she stated “Daddy

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hit me” and pointed to her vaginal area when asked where he hit her. She also stated

that her father had touched her with his “ding ding,” and that he had touched her

genitals.

The trial court adjudicated all three children neglected and Holly abused in an

order filed 16 February 2022.2 Grandmother testified at the adjudication hearing

that she believed that Holly had contracted gonorrhea from a toilet seat or towel and

that she did not believe that Father had abused Holly. Based on expert testimony the

trial court rejected Grandmother’s explanations for Holly’s contraction of gonorrhea,

finding that Holly had been sexually abused by Father.

The trial court placed the children in DSS custody. It ordered monthly

visitation with Grandmother and instructed her not to speak with the children about

the issues involved with the case. The trial court did not at this time order

Grandmother to participate in treatment or parental education.

That same month DSS developed a case plan and visitation plan for

Grandmother. In the case plan, DSS requested that Grandmother obtain a mental

health assessment, refrain from using illicit substances, and attend sex abuse classes.

Grandmother signed the visitation plan but refused to sign her case plan as she did

not believe she had done anything wrong. She completed the Darkness to Light online

2 The previous appeal in this case, In re M.G.B., 287 N.C. App. 694, 883 S.E.2d 226, 2023 WL

2126139 (2023) (unpublished) addressed Father’s appeal of the adjudications of Thomas and Mary. We affirmed the trial court’s adjudication that they were neglected.

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sexual abuse class on 22 March 2022, but she told social workers she had not learned

anything because the course did not contain information that was new to her.

Grandmother’s visitation with the children during this period went well. The social

workers noted that she brought them food and gifts, that she interacted well with the

children, and the children seemed to love Grandmother.

On 30 March 2022, Grandmother received a psychological assessment,

performed by her own therapist at the UNC Health Pain Management Center. As

part of this assessment, the therapist addressed various questions provided by DSS.

The assessment notes that Grandmother suffers from depression and anxiety and,

though she has a history of sexual trauma and was likely triggered by Holly’s

diagnosis, the therapist did not believe her psychological disorders impacted her

ability to care for the children. However, she did note her belief that Grandmother’s

trust in her son impacted her ability to examine facts. The report also notes that

Grandmother was “defensive,” felt that she was the victim in this situation, and

continued to believe that Holly had contracted gonorrhea through contact with a

toilet seat. The therapist recommended that Grandmother continue working with her

via outpatient therapy sessions.

The trial court held a permanency planning hearing on 13 April 2022. It found

that Grandmother “continues to deflect and minimize,” “support[s] her son’s

narrative” and “assert[s] herself as the victim.” At the hearing she “verbally attacked

and blamed” the social worker involved with the children’s removal, stating that he

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was the reason the children were removed.

The trial court reviewed the psychological examination report and found

concerns regarding its usefulness. Among the trial court’s concerns were that the

report had been conducted by a pain management clinician, focused primarily on pain

management, and was performed by a clinician who had a longstanding relationship

with Grandmother. The trial court was also concerned that the therapist did not have

sufficient information to make the assessment: she only spoke with Grandmother and

did not indicate that she had reviewed any documentary evidence regarding the case.

Grandmother did not inform the therapist that her son had been criminally charged

or that the trial court had found that Holly had contracted gonorrhea through sexual

contact and, instead, allowed her to believe an investigation was pending, possibly

impacting her ability to make an educated diagnosis and treatment plan given

Grandmother’s continuing denial that sexual contact had occurred.

The trial court found that Grandmother was acting in a manner inconsistent

with the health and safety of the juveniles, but was making sufficient progress under

her plan.3 It endorsed a primary plan of reunification and a secondary plan of

guardianship, and ordered that Grandmother attend sex abuse classes or support

groups, “receive an assessment to address issues of sexual abuse concerns,” receive

3 Mother and Father remained parties to the juvenile case and at this and subsequent permanency planning hearings were found to have made insufficient progress until their parental rights were terminated in April 2023. Neither are party to this appeal.

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therapy on how to parent a child who has been sexually abused, and that she receive

a new psychological evaluation.

Between this and the next permanency planning hearing, Grandmother

received two psychological evaluations, each recommending, among other things, that

Grandmother incorporate Dialectical Behavioral Therapy (“DBT”) into her

treatment. She visited the children monthly, as allowed by the trial court, bringing

them food and toys. She continued to deny that sexual abuse had occurred, including

reporting to a social worker that she did not believe her son had done anything wrong.

A second permanency planning hearing was held on 30 November 2022. The

court found that Grandmother remained an unsafe caretaker for the children because

she continued to refuse to acknowledge the likelihood that her son assaulted Holly.

The court ordered a primary plan of adoption and a secondary plan of reunification.

The trial court ordered Grandmother cooperate with the recommendations of the two

new evaluations and again ordered her to attend sex abuse classes or support groups.

Between that hearing and the permanency planning hearing from which this

appeal arises, held on 26 April 2023,4 Grandmother did not undergo DBT as ordered.

She testified that she contacted numerous providers but was unable to pay for their

services as they did not accept her health insurance. She initially rejected offers from

DSS to assist in paying for her treatment before ultimately attending two intake

4 Mother’s and Father’s parental rights were terminated on 21 April 2023.

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sessions with a therapist. This therapist determined that Grandmother did not

require DBT services, but made that assessment without reviewing prior

assessments, documentation, or court filings, relying only on information provided by

Grandmother.

At the hearing, Grandmother testified that she continued to believe Holly had

contracted gonorrhea through contact with a toilet seat and that if a jury convicted

her son she would still not believe he had harmed Holly.

The trial court found that Grandmother failed to obtain DBT services, had not

participated in educational training, parenting courses, or support groups to help her

parent a child who had been neglected or sexually abused, and that her refusal to

accept that Father had abused Holly restricts her ability to render safe and

appropriate decisions on behalf of the minor children. The court found that

Grandmother had failed to make progress in a reasonable period of time and ordered

a primary plan of adoption and secondary plan of guardianship, ceased reunification

efforts with Grandmother, and eliminated visitation. Grandmother filed timely

written notice of appeal.

Issues

Grandmother identifies a number of issues for our review. Accordingly we

address: (I) the trial court’s findings of fact regarding aspects of Grandmother’s

progress on her case plan; (II) the trial court’s alleged misapprehensions of law in

finding an inapplicable ground for termination and placing the burden of proof upon

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Grandmother; (III) the trial court’s conclusion that reunification should be removed

from the permanent plan; (IV) whether the guardian ad litem properly discharged its

duties; and (V) whether DSS made reasonable efforts toward reunification.

Analysis

Following a juvenile adjudication and initial disposition, the trial court holds

a permanency planning hearing within 90 days and then subsequent hearings at

least every six months. N.C. Gen. Stat. § 7B-906.1(a) (2023). At each permanency

planning hearing, the trial court must adopt concurrent primary and secondary

permanent plans, most commonly selecting from among reunification of the juvenile

with their parents, adoption, guardianship with relatives or others, or custody to a

relative or other suitable person. In re J.M., 384 N.C. 584, 593, 887 S.E.2d 823, 829

(2023); N.C. Gen. Stat. 7B-906.2. Reunification must be the primary or secondary

plan unless the permanent plan has been achieved or the trial court (1) made written

findings specified by N.C. Gen. Stat. § 7B-901(c) at the initial disposition hearing; (2)

made written findings under 7B-906.1(d)(3) at a review hearing or earlier

permanency planning hearing; or, as in this case, (3) makes written findings in the

permanency planning order that “reunification efforts clearly would be unsuccessful

or would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. § 7B-

906.2(b). The written findings are not required to track the statutory language

verbatim, but they “must make clear that the trial court considered the evidence in

light of whether reunification would be [clearly unsuccessful] or would be inconsistent

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with the juvenile’s health, safety, and need for a safe, permanent home within a

reasonable period of time.” J.M., 384 N.C. at 594, 887 S.E.2d at 830 (quoting In re

H.A.J., 377 N.C. 43, 49, 855 S.E.2d 464, 470 (2021)).

In this case, the trial court found that reunification efforts with Grandmother

“clearly would be unsuccessful and would be inconsistent with the juveniles’ health

or safety.” In support of this conclusion, it found that Grandmother had failed to meet

the children’s needs by not participating in services to help her address Holly’s sexual

abuse, refusing to believe abuse had taken place, failing to cooperate with or follow

recommendations of her psychological evaluations, and engaging in inappropriate

conversations in the presence of the children.

Grandmother argues that she made sufficient progress on her case plan such

that the trial court’s conclusion that reunification would clearly be unsuccessful is

unsupported. In doing so she challenges the trial court’s conclusions, as well as a

number of individual factual findings.

When reviewing a permanency planning order, we examine “whether there is

competent evidence in the record to support the findings [of fact] and whether the

findings support the conclusions of law.” In re A.P.W., 378 N.C. 405, 410, 861 S.E.2d

819, 825 (2021) (citing In re H.A.J., 377 N.C. at 49, 855 S.E.2d at 469). “The trial

court’s findings of fact are conclusive on appeal if supported by any competent

evidence.” Id. Uncontested findings of fact are binding on appeal. Id. “The trial court’s

dispositional choices—including the decision to eliminate reunification from the

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permanent plan—are reviewed for abuse of discretion.” Id. at 410, 861 S.E.2d at 825-

26.

I. Factual findings

Grandmother contests a significant portion of the trial court’s findings of fact

but groups her arguments into five primary categories. She argues that the evidence

does not support the trial court’s findings that she: (1) did not complete DBT therapy

or mental health services; (2) did not complete a sex abuse education class; (3) cannot

see reality, cannot admit her son abused Holly, and prioritizes herself and her son

over her grandchildren; (4) has not disengaged from her son; and (5) acted

inappropriately during visitation. Grandmother argues that she “basically complied”

with the court’s orders to complete a mental health evaluation, attend therapy, and

attend a sex abuse education class. Our review of the record on appeal shows that the

trial court’s relevant findings of fact were supported by testimony and other evidence

and support its conclusion that Grandmother has failed to make reasonable progress

and its elimination of reunification as a permanent plan.

A. Therapy

Grandmother argues that the evidence did not support a finding that she did

not complete mental health services as directed in the court’s previous permanency

planning orders. She argues that she continued to engage in therapy with her regular

therapist and that while she never engaged in Dialectical Behavior Therapy (DBT),

her failure to do so was not willful. A review of the obligations imposed by the trial

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court’s orders and Grandmother’s efforts to fulfill those obligations is helpful in

evaluating the trial court’s findings.

In its 16 February 2022 order adjudicating the children abused and neglected,

the trial court declined to order Grandmother to participate in mental health

treatment. However, DSS developed a case plan in which it requested that

Grandmother, among other tasks, obtain a mental health assessment. Though she

refused to sign the case plan, she submitted to her first psychological assessment on

30 March 2022, performed by her regular therapist at the UNC Health Pain

Management Center. The trial court reviewed this assessment at the 13 April 2022

permanency planning hearing, finding that she had withheld key information from

the assessor and ordering that she undergo another evaluation.

Grandmother underwent two subsequent evaluations. The first was conducted

in sessions throughout July and August 2022. She underwent a second evaluation in

October 2022 as she requested to have her own assessment completed. Each of these

evaluations included interviews, psychological testing, and the review of

documentary records including court documents from this case. The first evaluation

recommended that Grandmother initiate counseling services with a provider

experienced in working with personality disorders and noted that Grandmother may

benefit from incorporating DBT into her treatment “to help her learn how to perceive

things accurately and regulate strong emotions.” The second recommended that

Grandmother engage in DBT “to improve her interpersonal effectiveness, emotion

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regulation, distress tolerance, and ability to focus on current environment.” Each

recommended that the DBT therapist be given a copy of the respective assessments.

The trial court reviewed these evaluations during the 30 November 2022 permanency

planning hearing and ordered that Grandmother cooperate with the

recommendations made in both reports.

Grandmother testified that she attempted to secure DBT, contacting “probably

over 40 different people, institutions,” but was unable to secure treatment because

none of those providers accepted her health insurance. She ultimately located a DBT

provider and underwent an assessment. In an email to DSS, this DBT provider

explained that she was not qualified to conduct a “clinical forensic evaluation,” which

would involve examining past assessments and evaluating the subject over time.

Instead, she conducted a “clinical mental health assessment,” which did not involve

a review of outside documents and was meant to establish “a picture of the client as

they present at the time of the assessment.” Under these parameters, the provider

found that Grandmother did not meet criteria for any diagnosis in the DSM-5 and did

not recommend follow-up DBT treatment.

While Grandmother’s argument touches on several of the trial court’s

enumerated factual findings, she ultimately contests the trial court’s finding that she

“knowingly, willfully and intentionally refused to get DBT services designed to assist

her.” It is undisputed that Grandmother never obtained DBT as recommended in both

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evaluations. However, Grandmother argues that her failure to undergo DBT was not

willful, but rather the result of financial difficulties.

At the hearing, the DSS supervisor acknowledged that Grandmother’s

insurance and financial resources had been an obstacle to obtaining DBT, but

detailed the department’s efforts to help her arrange therapy. In particular, DSS

located a provider who offered services at $40 per session. Grandmother testified that

she could not afford this provider for two sessions per month, even with DSS paying

half the cost.

The trial court considered Grandmother’s testimony and rejected her claim

that she could not afford these services. It noted that these costs were low with DSS

assistance and that Grandmother continued to pay for cable television. Additionally,

the DBT provider Grandmother chose for her assessment charged $100 per hour

before DSS assistance. Because evidence supports the trial court’s finding that

Grandmother could afford DBT, we are bound by that finding. In re P.O., 207 N.C.

App. 35, 41, 698 S.E.2d 525, 530 (2010) (“If the trial court’s findings of fact are

supported by any competent evidence, they are conclusive on appeal.”)

Nor did Grandmother’s evaluation by the DBT provider satisfy her obligation.

Both of Grandmother’s evaluations recommending DBT explicitly recommended that

the provider be given a copy of those evaluations, and the trial court ordered they be

provided to give the DBT practitioner all information relevant to assessing and

diagnosing Grandmother. These assessments were made with the assistance of court

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filings and included information about Grandmother’s denial of any sexual abuse by

Father despite the trial court’s finding that abuse had occurred—facts that

Grandmother had previously failed to disclose in her first psychological evaluation

that the trial court found insufficient. Receiving a DBT assessment that did not

include a review of these evaluations did not discharge Grandmother’s obligation to

seek out DBT.5

B. Disengaging from Grandmother’s relationship with Father

The trial court found that Grandmother had failed to disengage from her

relationship with her son. The October 2022 psychological assessment recommended

that Grandmother “disengage from [Father] in order to show that she is willing to

put the needs of her grandchildren over her need to keep an open mind about [his]

guilt or innocence.” The recommendations of Grandmother’s psychological

evaluations were incorporated into the 26 January 2023 permanency planning order.

By her own admission, Grandmother has not disengaged from Father:

Q: Do you have—do you have any kind of communication with your son?

A: Yeah, I speak to him every now and then, yeah.

5 Grandmother argues “the evidence is clear that [the DBT provider] would not accept [outside

documents]” and that Findings of Fact 69 and 76, finding that “[Grandmother] had not provided [the DBT provider] with the two psychological assessments that the Court had given permission to release to the provider” must therefore be struck. It is uncontested that Grandmother did not provide the DBT provider with outside documentation. We disagree that these findings imply that Grandmother refused to provide documents to a provider who would otherwise review them and decline to strike the findings.

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Q: Okay. Do you talk about this case?

A: He doesn’t really like to talk about the case, because he hadn’t seen his children in so long, and it’s stressful.

...

Q: You have not disengaged from [Father,] have you?

A: No, my son hasn’t even been to criminal court yet. And I know this is a different court, but at this point, it’s looking like we weren’t even gonna get the kids anyway, so it didn’t matter.

Grandmother argues that the directive is too vague, particularly because the

court only ordered that she “cooperate with the recommendation of the Psychological

evaluation[s],” rather than explicitly ordering that she disengage from Father, and

only one of her evaluations included that recommendation. She cites caselaw

addressing requirements of clarity in court orders. Nw. Bank v. Robertson, 39 N.C.

App. 403, 411, 250 S.E.2d 727, 731 (1979); Spears v. Spears, 245 N.C. App. 260, 284,

784 S.E.2d 485, 500 (2016) (citing Morrow v. Morrow, 94 N.C. App. 187, 189, 379

S.E.2d 705, 706 (1989) (“A judgment must be complete and certain, indicating with

reasonable clearness the decision of the court, so that such judgment may be

enforced.”)). But Grandmother does not appear to be confused by the trial court’s

directive: when asked if she had disengaged from her son she answered that she had

not and testified as to the topics of their conversations.

Moreover, we do not believe these cases, which address final judgments being

rendered void for uncertainty, are apposite to this context. Even if Grandmother were

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not ordered to disengage from her relationship with Father, choosing to maintain

communication with the man who sexually abused a child is relevant to the trial

court’s decision to allow reunification with that child and her siblings. “In choosing

an appropriate permanent plan . . . the juvenile’s best interests are paramount.” In

re J.H., 244 N.C. App. 255, 269, 780 S.E.2d 228, 238 (2015). “The court may consider

any evidence . . . that the court finds to be relevant, reliable, and necessary to

determine the needs of the juvenile and the most appropriate disposition.” N.C. Gen.

Stat. § 7B-906.1(c). Grandmother’s admitted maintenance of an ongoing relationship

with Father, despite the recommendation of her mental health evaluation, is relevant

to the determination of the children’s best interests.

This failure to disengage is particularly relevant given that the court’s primary

concern with returning the children to Grandmother is her refusal to accept that

Father sexually abused Holly. Whether or not the trial court clearly ordered her to

disengage, continuing to associate with Father is an important consideration in

determining if Grandmother can safely parent the children. The trial court did not

err in finding that Grandmother failed to disengage from her relationship with

Father.

C. Sex abuse education

Grandmother argues that the trial court’s findings related to her failure to

complete sex abuse education are unsupported. The trial court found that

Grandmother had failed to follow the recommendations of her psychological

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evaluations by refusing to seek educational opportunities to learn about parenting a

child who has been the victim of sexual abuse. It also found that she had “never

participated” in such parenting courses or related support groups and that she failed

to obtain education on parenting “children who have been exposed to other

environmental chaos such as parents with a substance abuse problem by

participating in support groups or non-offender’s education.”

Grandmother argues that her completion of the Darkness to Light online

course renders these findings unsupported. We agree, to the extent that the trial

court found that Grandmother had never participated in parenting courses. However,

after her completion of that course, the trial court continued to order that she seek

out additional educational opportunities, which she did not do.

Grandmother presented her certificate of completion of the Darkness to Light

course on 22 March 2022, following the children’s adjudication. In the following

permanency planning order, the trial court recognized her completion of this class

and noted that she was “compliant” with the DSS recommendation, but still ordered

that she “attend sex abuse classes/support groups and receive an assessment to

address issues of sexual abuse concerns.” Both of Grandmother’s psychological

evaluations, each performed after her completion of the Darkness to Light course,

recommended that she receive additional education regarding parenting a child who

has been sexually abused. The next permanency planning order also recognized

Grandmother’s completion of Darkness to Light, but noted her as only partially

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compliant with this DSS recommendation and again ordered she attend sex abuse

classes. It is clear that the trial court found Grandmother’s completion of Darkness

to Light insufficient, as she stated she did not gain any knowledge from the class,

and it ordered her, as recommended by DSS and her psychological evaluators, to

obtain additional education and counseling. Grandmother does not argue that she did

so.

To the extent that the trial court found that Grandmother had completed no

sex abuse education, those findings are struck. Its findings that she did not obtain

additional education as ordered are, however, supported by competent evidence.

D. Ability to see reality

Grandmother contests the court’s findings regarding her ability to see reality.

The trial court found that Grandmother’s refusal to believe that Father abused Holly

“calls into question [her] ability to face reality.” It found that she refused to believe

“any problem exists in this case,” that she would prioritize Father’s needs over the

children and allow him to have contact with the children, demonstrated a lack of

rational judgment, and generally that her testimony indicated she chose to see things

as she would like them to be, rather than recognizing reality.

Grandmother argues that “there was no testimony at the hearing that [she]

had problems seeing reality” and that one of Grandmother’s psychological

evaluations stated that she “appears to have good reality testing.” This argument

ignores the fact that the trial court’s findings are based entirely on Grandmother’s

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consistent refusal to accept the possibility that Father sexually abused Holly. From

Holly’s initial diagnosis through the final permanency planning hearing, where

Grandmother testified that she believed Holly contracted the disease from a toilet

seat, that she had gonorrhea “bacteria” but not an infection, and that she would not

believe Father had abused Holly even if he were convicted by a jury, Grandmother

has rejected the overwhelming evidence of Holly’s abuse in favor of unsupported

conjecture. The trial court’s finding that Grandmother refuses to accept the reality of

Holly’s abuse is supported by the evidence.

Grandmother also argues that, because she testified that she would still keep

Father away from the children despite this belief, the trial court could not have found

she could not be a safe caregiver. The trial court’s concerns on that front stem not

only from Grandmother’s inability to accept that Father abused Holly, but because

she testified that she would only keep the children away from Father because of the

risk of DSS taking custody of the children—not because of the danger represented by

Holly’s abuser. Additionally, she had prioritized Father’s needs over those of the

children in the past, most notably by sending the children to live with a relative

rather than having Father leave the home.

Even assuming the trial court’s belief that Grandmother would allow Father

to have contact with the children is unsupported, the danger to the children comes

not only from that contact, but from a sexually abused child being raised by a

caretaker who does not believe that she was abused and refuses to seek out education

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or other assistance in parenting an abused child. The trial court’s findings that

Grandmother would not be a safe caregiver are supported by the evidence.

E. Visitation

Finally, Grandmother contests the trial court’s findings regarding her

visitation with the children. Grandmother’s visitation with the children was indeed

largely positive: DSS observed that Grandmother brought the children toys and food,

and she got along with the children well. However, the trial court found that

Grandmother engaged in conversations with the children about returning home and

also spoke to the social worker about the unfairness of the case. These findings were

supported by the testimony of the DSS supervisor. The children were present on at

least one occasion during which Grandmother asked the supervising social worker a

question about the case.

Grandmother argues that the evidence does not support the trial court’s

finding that her visitation was inappropriate because the majority of the evidence

shows that her interactions with the children were appropriate and enriching. But

the trial court’s findings were supported by evidence of specific inappropriate

conversations with the children or the supervising social worker. The trial court did

not err in making these findings.

II. Misapprehensions of law

Grandmother argues that the permanency planning order in this case was

insufficient to support the cessation of reunification as a permanent plan because the

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trial court misapprehended the law. She argues first that the trial court erred by

finding a ground for termination of parental rights, which is inapplicable to the

permanency planning process, and second that the trial court inappropriately placed

an evidentiary burden upon her.

A. Termination ground

Grandmother’s argument that the trial court erred by finding an inapplicable

termination ground rests in the language used in one of its Findings of Fact. Finding

of Fact 122 states:

[Grandmother’s] actions have resulted in the abuse and/or neglect of the minor children [within] the meaning of 7B- 101. The children would be at a substantial risk of repetition of abuse and/or neglect if returned to her care now or in the foreseeable future. [Grandmother] has shown this Court her son is her main priority and not the well- being of these Minor Children.

Grandmother argues that this finding reflects the statutory language of the “neglect”

ground for terminating parental rights. She seems to argue that the court in effect

issued a ruling terminating her parental rights, in a misapprehension of its role at

the time without safeguards inherent to the termination process, such as the

application of a clear and convincing evidentiary standard. N.C. Gen. Stat. § 7B-

1109(f).

It is unclear from Grandmother’s briefing which part of this finding is

“language directly related to the neglect termination ground,” but there appear to be

two possibilities.

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The first is the trial court’s citation of the statutory definitions of abuse and

neglect under Section 7B-101, as those definitions are incorporated into our

termination statute:

The court may terminate the parental rights upon a finding . . . the parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.

N.C. Gen. Stat. § 7B-1111(a). However, the use of Section 7B-101’s definitions of

abuse and neglect does not imply that the trial court was applying standards more

appropriate for a termination context. Section 7B-101 provides definitions for terms

used throughout the entirety of the Abuse, Neglect, and Dependency Subchapter of

our Juvenile Code. N.C. Gen. Stat. § 7B-101 (“As used in this Subchapter, unless the

context clearly requires otherwise, the following words have the listed meanings[.]”).

Among other terms, this section defines “abused juvenile” and “neglected juvenile”

for use throughout the entire Subchapter, including abuse, neglect, and dependency

adjudications. See, e.g. In re K.L., 272 N.C. App. 30, 39, 845 S.E.2d 182, 190 (2020)

(citing § 7B-101(1) to define “abused juvenile” when reviewing the adjudication of a

minor).

It is also possible that Grandmother takes issue with the trial court’s finding

that “[t]he children would be at a substantial risk of repetition of abuse and/or neglect

if returned to her care now or in the foreseeable future” as language too similar to

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that used in termination proceedings. In order to terminate parental rights upon the

ground of neglect, a trial court must “consider any evidence of changed conditions in

light of the evidence of prior neglect and the probability of a repetition of neglect” and

may find the neglect ground if the evidence shows “a likelihood of future neglect by

the parent.” In re M.S.E., 378 N.C. 40, 48, 859 S.E.2d 196, 205 (2021). But just

because the likelihood of future neglect or abuse is relevant to the termination of

parental rights does not render it irrelevant to a permanency planning ruling, nor

does the trial court’s consideration of such imply that the trial court is applying an

improper standard to its analysis. During a permanency planning hearing, the task

of the trial court is to adopt the permanent plans the court finds are in the juvenile’s

best interest. N.C. Gen. Stat. § 7B-906.2(a). The possibility that a neglected juvenile

faces a substantial risk of future neglect upon reunification is a relevant

consideration in determining whether reunification is appropriate.

In order to eliminate reunification as a permanent plan, the trial court was

required to make written findings “that reunification efforts clearly would be

unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen.

Stat. § 7B-906.2(b) “As part of that process, the trial court is required to make written

findings ‘which shall demonstrate the degree of success or failure toward

reunification[.]’ ” In re L.E.W., 375 N.C. 124, 129, 846 S.E.2d 460, 465 (2020) (citing

N.C. Gen. Stat. § 7B-906.2(d)). These findings include:

(1) Whether the parent is making adequate progress

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within a reasonable period of time under the plan.

(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.

(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.

(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.

N.C. Gen. Stat. § 7B-906.2(d). The trial court does not need to make a verbal

recitation of the statutory language, but “the order must make clear that the trial

court considered the evidence in light of whether reunification would be futile or

inconsistent with the juvenile’s health, safety, and need for a safe, permanent home

within a reasonable period of time.” In re L.M.T., 367 N.C. 165, 167-68, 752 S.E.2d

453, 455 (2013).

Here, the trial court’s order reflects that it made this consideration. It found

facts as to each of the Section 906.2(d) factors: that Grandmother remained available

to the court, but that she was not participating or cooperating with the plan, nor was

she making progress, and was acting in a manner inconsistent with the health and

safety of the children. Each of these findings was supported by evidentiary findings,

including those regarding her failure to undergo DBT, attend classes on parenting

victims of sexual abuse and, most importantly, her refusal to acknowledge the fact

that her son had sexually abused Holly. There is no indication the trial court applied

an inappropriate standard to its analysis.

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Grandmother’s own briefing, in its argument on a separate issue,

acknowledges the overlapping considerations between termination and permanency

planning, identifying our Supreme Court’s reliance on termination precedent to

affirm an order ending reunification efforts because “[i]t stands to reason that

evidence sufficient to support the termination of parental rights is sufficient to

support the less dramatic step of removing reunification from a permanent plan.” In

re J.M., 384 N.C. at 602, 887 S.E.2d at 835. The trial court properly addressed the

considerations required to end reunification efforts and did not err by considering the

possibility of future neglect when determining the best interests of the children.

B. Burden shifting

Grandmother also argues that the trial court impermissibly placed the burden

of proof upon her at the permanency planning hearing. During a permanency

planning hearing, the court is tasked with determining the best interest of the child.

N.C. Gen. Stat. § 7B-906.2(a). Accordingly, “neither the parent nor the county

department of social services bears the burden of proof in permanency planning

hearings.” In re E.A.C., 278 N.C. App. 608, 617, 863 S.E.2d 433, 439 (2021).

In one of its Findings of Fact, the trial court found:

[Grandmother] failed to obtain educational courses for parenting “children who have been exposed to other environmental chaos such as parents with a substance abuse problem by participating in support groups or non- offender’s education.” [Grandmother] is unable to provide this Court with any proof she is in a better position than she was over a year and a half ago concerning raising a

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child who has been sexually abused and how to provide them with the care and services “they need to ensure their emotional wellbeing.” [Grandmother] has not provided any evidence to this Court that she is better positioned now, than a year ago, to help these minor children deal with the trauma they have faced in their lives.

We disagree that the trial court’s language here implies that a burden of proof

was placed on Grandmother. While the wording is perhaps inartful, it is clear from

the context of this finding that the trial court did not place a burden on her. First, the

trial court’s finding that Grandmother had not provided evidence that she is “better

positioned” is in the same paragraph as the finding that she had not obtained

educational resources to enable her to parent vulnerable children. This is part of

determining whether Grandmother “is making adequate progress within a

reasonable period of time under the plan.” N.C. Gen. Stat. § 7B-906.2(d)(1). The trial

court ordered Grandmother in its two previous permanency planning orders to seek

out additional educational resources to assist her in parenting the children. This

finding simply acknowledges that she has not done so.

Second, this paragraph is one of the trial court’s 124 Findings of Fact detailing

the history of the case and Grandmother’s participation in it. These findings make

clear that the trial court weighed the evidence before concluding that the reasons for

the children’s removal still existed and that Grandmother had not made sufficient

progress in creating a safe environment such that reunification was in the children’s

best interest. Following each of the three previous hearings—the dispositional

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hearing and the two prior permanency planning hearings—the trial court determined

that the children were not safe in Grandmother’s home because of her unwillingness

to accept that Holly had been abused or to participate in education or therapy that

would aid in parenting abused or neglected children. The trial court is, in this finding

and others, recognizing that sufficient improvement has not been made that would

now render the home safe for the children where before it was not.

III. Removal of reunification from permanent plan

Grandmother argues that she substantially complied with her case plan and

that the trial court narrowly focused on a handful of issues, ignoring her overall

progress, and erred in ordering the cessation of reunification efforts. We review the

trial court’s elimination of reunification from the permanent plan for abuse of

discretion. In re J.H., 373 N.C. 264, 267-68, 837 S.E.2d 847, 850 (2020). A trial court

abuses its discretion when its ruling is so arbitrary it could not have been the result

of a reasoned decision. Id.

The trial court’s binding findings of fact show that Grandmother failed to make

sufficient progress on her case plan. It is true that her visitation with the children

was largely positive, she maintained her ongoing therapy sessions with the therapist

at her pain management clinic, completed the Darkness to Light program, and took

at least an initial step to be evaluated for DBT. However, she failed to make use of

the DBT resources provided by DSS to find a provider in compliance with the trial

court’s orders, seek out adequate education or support in parenting a child who is the

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victim of sexual abuse, or disengage from her relationship with Father.

Most importantly, Grandmother continues to insist that Father never sexually

abused Holly. This standing alone could be enough to support the trial court’s order

ceasing reunification. In In re G.D.C.C., our Supreme Court reviewed a similar

situation. 380 N.C. 37, 867 S.E.2d 628 (2022). In that case the mother refused to

believe her older daughter, Nadina, had been sexually abused by her father. 380 N.C.

at 41-42, 867 S.E.2d at 631. The mother maintained that Nadina was making up the

allegations, refused to believe she had been sexually abused, and consistently failed

to acknowledge her children’s special needs resulting from the abuse. Id. She also

failed to demonstrate any ability to recognize threats to her younger daughter,

Galena, despite completing her case plan in its entirety. Id. Much like Grandmother

in this case, she “failed to acknowledge any concern with her ability to parent and

protect the children, failed to accept any responsibility for her actions, and continued

to deny that she had done anything wrong.” Id. “After years of professional, court,

and DSS involvement, the issues that led to Galena’s removal remained: respondent

still could not protect her children from threats and thus could not provide them an

environment that was not injurious to their welfare.” Id. at 42, 867 S.E.2d at 632.

Our Supreme Court held this was sufficient for the trial court to find a probability of

future neglect and terminate the mother’s parental rights to Galena, regardless of

the fact that she had completed her case plan. Id. See also In re D.W.P., 373 N.C. 327,

339–40, 838 S.E.2d 396 (2020) (holding that the respondent-mother’s inability to

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recognize and break patterns of abuse by her fiancé against her child supported a

neglect determination, despite the progress made in her parenting plan).6

As in those cases, Grandmother refuses to recognize that Holly was the victim

of abuse. Despite overwhelming evidence, she rejected the trial court’s determination

that sexual abuse had occurred and continued to assert, including in her testimony

at the final permanency planning hearing, that Holly had contracted gonorrhea from

a toilet seat and the misunderstanding that she “had the bacteria but not the

infection.” Although she claims she would not allow Father access to the children

because of the risk DSS would retake custody of them, it is clear that she does not

understand or admit the danger Father represents or the harm he has already

caused. Like the respondents in G.D.C.C. and D.W.P., whatever progress

Grandmother has made on her case plan has not been sufficient to allow her to

provide a safe home for the children. Additionally, Grandmother has failed to

complete aspects of her plan, including obtaining DBT and sexual assault education,

designed to help her do so.

The trial court did not abuse its discretion in ordering that reunification efforts

be ceased.

IV. GAL Investigation

6 As discussed above, although both G.D.C.C. and D.W.P. are cases involving the termination

of parental rights, evidence sufficient to support termination is also sufficient to support an order ceasing reunification efforts. In re J.M., 384 N.C. at 602, 887 S.E.2d at 835.

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Grandmother argues that the guardian ad litem (“GAL”) failed to adequately

perform its duties. Grandmother does not appear to have raised this issue before the

trial court. “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion[.]” N.C. R. App. P.

10(a)(1). In her reply brief, Grandmother does not argue that this issue was raised,

but that it is automatically preserved because it stems from a statutory mandate.

“[W]hen a trial court acts contrary to a statutory mandate . . . the right to

appeal the court’s action is preserved.” State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652,

659 (1985). Such mandatory statutes are “legislative enactments of public policy

which require the trial court to act, even without a request to do so[.]” State v. Hucks,

323 N.C. 574, 579, 374 S.E.2d 240, 244 (1988). This exception to the preservation

requirement of Rule 10(a) is limited to mandates directed to the trial court either: “(1)

by requiring a specific act by the trial judge; or (2) by requiring specific courtroom

proceedings that the trial judge has authority to direct[.]” In re E.D., 372 N.C. 111,

119, 827 S.E.2d 450, 456 (2019) (internal citations omitted) (rejecting respondent’s

argument that inpatient commitment statute’s directive that respondent be

examined by a physician upon arrival at 24-hour facility is an automatically

preserved statutory mandate). In the second category, the statute must leave “no

doubt that the legislature intended to place the responsibility on the judge presiding

at the trial.” Id. at 121, 827 S.E.2d at 457 (citing Ashe, 314 N.C. at 35, 331 S.E.2d at

657).

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Under N.C. Gen. Stat. § 7B-601(a):

The duties of the guardian ad litem program shall be to make an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; to facilitate, when appropriate, the settlement of disputed issues; to offer evidence and examine witnesses at adjudication; to explore options with the court at the dispositional hearing; to conduct follow-up investigations to insure that the orders of the court are being properly executed; to report to the court when the needs of the juvenile are not being met; and to protect and promote the best interests of the juvenile until formally relieved of the responsibility by the court.

This is a directive to the GAL and does not appear to mandate that the trial

judge perform a specific act or direct a courtroom proceeding. The trial court is

directly tasked only with appointing the GAL to represent the juvenile. The statute

narrates the GAL’s responsibilities, rather than making an explicit command to the

trial court such as mandating written findings as to the GAL’s performance.

However, we have held previously the combination of N.C. Gen. Stat. § 7B-

906.1(c), which requires the trial court at a permanency planning hearing to consider

information from the GAL, and N.C. Gen. Stat. § 7B-601(a), which lists the GAL’s

duties, to create a statutory mandate automatically preserving the right of appeal on

this issue. In re J.C.-B., 276 N.C. App. 180, 192, 856 S.E.2d 883, 892 (2021). This is

in keeping with the best interest of the children as the paramount goal of permanency

planning and our observation that the best interest question is “more inquisitorial in

nature than adversarial,” rendering the production of any competent, relevant

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evidence ultimately the responsibility of the trial court. Ramirez-Barker v. Barker,

107 N.C. App. 71, 78, 418 S.E.2d 675, 679 (1992).

Upon the filing of a petition alleging a juvenile is abused or neglected, the trial

court must appoint a guardian ad litem to represent the juvenile. N.C. Gen. Stat. §

7B-601(a). The guardian ad litem “stands in the place of the minor who is not sui

juris,” In re J.H.K., 365 N.C. 171, 175, 711 S.E.2d 118, 120 (2011), and is tasked with

the duties under Section 7B-601(a) noted above, including investigating to determine

the facts and the needs of the juvenile and protecting and promoting the juvenile’s

best interests. The GAL’s representation of the juvenile’s interests is integral to the

process such that the failure to appoint a GAL creates a presumption of prejudice

requiring reversal. In re R.A.H., 171 N.C. App. 427, 431, 614 S.E.2d 382, 385 (2005).

Failure by the GAL to fulfill their statutory duties may also require reversal. See In

re J.C.-B., 276 N.C. App. at 192, 856 S.E.2d at 892.

In this case, the GAL filed written reports with the trial court at the

adjudication hearing and each of the three subsequent permanency planning

hearings. These reports reflect that the GAL volunteer conducted monthly visits with

the children at their foster home and additional monthly phone calls with their foster

parents. They include detailed information concerning the health and well-being of

the children, including their psychological and physical health, their educational

development, their relationships with their foster parents and each other, and their

wishes regarding remaining in the foster home. In its report to the court prior to the

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permanency planning hearing that is the subject of this appeal, the GAL

recommended the court adopt a primary permanent plan of adoption and a secondary

permanent plan of guardianship.

Grandmother’s criticism of the GAL’s performance stems from two primary

concerns: first, that the GAL did not maintain adequate communication with

Grandmother, and second, that the GAL did not sufficiently investigate the children’s

wishes.

Grandmother notes that the GAL maintained contact with her following the

initial adjudication and placement of the children in her home but argues that the

GAL’s contact with her was inadequate once the children were removed from her care

following the filing of the petition in August 2021. After the petition was filed, the

GAL spoke with Grandmother by telephone twice and had no other contact with her.

Beyond Section 7B-601(a)’s listing of the duties of the GAL, we have little

guidance as to what constitutes sufficient investigation. Grandmother directs us to

the GAL Attorney Practice Manual published by our Administrative Office of the

Courts, which instructs GAL volunteers to “interview parents and family members.”

In R.A.H. we held there was a presumption of prejudice when a GAL was not

appointed prior to a termination hearing as that meant no field investigation had

been performed, and neither the child nor the respondent-mother had been

interviewed prior to the hearing. 171 N.C. App. at 431, 614 S.E.2d at 385 (2005).

Unlike in that case, the GAL here not only had consistent contact with the

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children but spoke with Grandmother: twice by phone following the removal of the

children from her home, and, as Grandmother describes, on numerous occasions prior

to that. These included at least three home visits during which the GAL had the

opportunity to see Grandmother interact with the children. The GAL also had access

to DSS reports noting that Grandmother’s visitation with the children was largely

positive.

Moreover, Grandmother makes no argument as to the effect additional contact

with her would have had on the GAL’s determination of the children’s best interests,

and we cannot identify any way its recommendation was prejudiced by the lack of

additional conversation. More contact would not have changed the fact that

Grandmother, as the GAL flags for the trial court’s attention, “continues to contest

the allegations in the petition” and “stated under oath during the recent TPR hearing

that she believed [Holly] contracted gonorrhea by sliding down a toilet seat that was

contaminated.”

Grandmother also argues that the GAL failed to adequately investigate the

children’s wishes as to where they would like to live, comparing this case to our

decision in In re J.C.-B. “One of the duties of a GAL is to ascertain from the child they

represent what their wishes are and to convey those express wishes accurately and

objectively to the court.” In re J.C.-B., 276 N.C. App. at 192, 856 S.E.2d at 892.

J.C.-B. is distinguishable from this case. In that case, the sixteen-year-old

juvenile, Jacob’s, visitation with his mother was at issue. The GAL provided the trial

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court with letters from therapists giving conflicting advice: two expressed the opinion

that Jacob should not be allowed contact with his mother, while the most recent

recommended Jacob be allowed to decide when he would like to resume visitation. Id.

at 193-94, 856 S.E.2d at 892. The GAL did not communicate Jacob’s wishes to the

trial court, which ordered no visitation with the mother “until recommended by the

juvenile’s therapist.” Id at 183, 856 S.E.2d at 887. We held that the GAL had failed

to adequately investigate Jacob’s wishes and convey them to the trial court. Id. at

194, 856 S.E.2d at 893.

Rather than providing sufficient evidence for the trial court to determine

whether visitation was in Jacob’s best interest, the GAL simply provided the court

with conflicting recommendations from therapists—including one that recommended

deferring to Jacob’s wishes—with no indication the GAL had asked his preference.

The trial court then vested discretion in one of the therapists to determine when

visitation was appropriate, meaning that not only did the GAL fail to properly

investigate, but the trial court improperly delegated its authority. Id.

In this case, the GAL did investigate the children’s wishes, finding that Holly

and Thomas both loved their foster family and loved living in their foster home, and

that Mary was too young to express her wishes. While Grandmother argues the GAL

should have more granularly investigated whether the children wished to return to

her care, we do not believe the GAL was required to do so nor do we believe that

information was necessary to the trial court’s decision. In J.C.-B. the juvenile was

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sixteen years old (as we note in that case, approaching the age of majority), the record

reflected an expressed desire in the past to maintain contact with his mother, and

one of his therapist’s letters explicitly recommended that he be allowed to decide

whether to resume visitation. 276 N.C. App. at 194, 856 S.E.2d at 892-93. The trial

court did not have sufficient evidence to determine Jacob’s visitation, information

which the GAL should have conveyed.

Here, the children are significantly younger and have expressed their wishes

regarding their current home. There are no conflicting recommendations by service

providers requiring more detailed information from the children. The trial court had

sufficient evidence to make its ruling. Even if the children had expressed a desire to

return to live with Grandmother, “[t]he expressed wish of a child of discretion is . . .

never controlling upon the court, since the court must yield in all cases to what it

considers to be for the child’s best interests, regardless of the child’s personal

preference.” Clark v. Clark, 294 N.C. 554, 576-77, 243 S.E.2d 129, 142 (1978). A

statement from a 2-, 4-, or 6-year-old that they would like to live with Grandmother,

who continues to deny that the oldest was sexually assaulted, would not have changed

the trial court’s decision as to the children’s best interest in this case.

V. Reasonable efforts of DSS

Grandmother last argues that DSS did not make reasonable efforts toward

reunification in that it did not provide adequate visitation or help in obtaining DBT.

Although DSS argues that Grandmother also failed to argue this issue before the trial

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court and preserve it for appeal, the trial court was required to make related findings

and conclusions:

Unless reunification efforts were previously ceased, at each permanency planning hearing the court shall make a finding about whether the reunification efforts of the county department of social services were reasonable. In every subsequent permanency planning hearing held pursuant to G.S. 7B-906.1, the court shall make written findings about the efforts the county department of social services has made toward the primary permanent plan and any secondary permanent plans in effect prior to the hearing. The court shall make a conclusion about whether efforts to finalize the permanent plan were reasonable to timely achieve permanence for the juvenile.

N.C. Gen. Stat. § 7B-906.2(c). Accordingly, we consider whether the trial court’s

findings of fact support its conclusion that “[t]he Alamance County Department of

Social Services has made reasonable efforts to eliminate the need for removal of the

juveniles[.]” In re A.P., 281 N.C. App. 347, 354, 868 S.E.2d 692, 698 (2022).

“Our General Assembly requires social service agencies to undertake

reasonable, not exhaustive, efforts towards reunification.” In re A.A.S., 258 N.C. App.

422, 430, 812 S.E.2d 875, 882 (2018). “Reasonable efforts” are the “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.” N.C. Gen. Stat.

§ 7B-101(18).

The trial court, in its Finding of Fact 21, found that DSS’s reasonable efforts

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to achieve reunification included, among other services: assessing the children’s

needs, contacting providers, counseling and supporting the family, meeting with

Grandmother to develop a service agreement and visitation plan, providing monetary

assistance for the children’s care, and making referrals to service providers.

Grandmother does not contest this finding but argues that DSS failed to provide

reasonable efforts in that it did not expand her visitation or provide adequate

assistance in obtaining DBT.

In its adjudication and disposition order, filed 16 February 2022, the trial court

ordered that DSS provide Grandmother with one hour of monthly visitation with the

children. In its subsequent orders, filed 18 May 2022 and 26 January 2023, the trial

court continued to order one hour of monthly visitation, but gave DSS discretion to

increase visitation. Grandmother argues that the failure of DSS to do so, despite

visitation going well was “insufficient reasonable effort toward [Grandmother’s] visits

with her grandchildren.” Grandmother’s argument ignores DSS’s stated concerns

about her behavior at visitation, including bringing the case up with the attending

social worker and asking the children if they wanted to come home. It also ignores

DSS testimony that Grandmother’s visits were routinely allowed to last longer than

the scheduled hour. While a failure to provide court-ordered visitation may impact a

reasonable efforts determination, see In re C.C.G., 380 N.C. 23, 35, 868 S.E.2d 38, 47

(2022), we do not hold that DSS exercising its discretion and declining to expand

visitation beyond that required by the trial court amidst concerns about

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Grandmother’s behavior during visits was a failure to exercise reasonable efforts

toward reunification.

Grandmother’s briefing also suggests offhand that the trial court improperly

delegated control over visitation. However, allowing DSS to expand visitation beyond

a minimum ordered by the trial court is not an impermissible delegation of judicial

authority. In re K.W., 272 N.C. App. 487, 495, 846 S.E.2d 584, 591 (2020).

Nor were DSS’s efforts to assist Grandmother in obtaining DBT insufficient.

As discussed above, DSS contacted multiple providers on Grandmother’s behalf and

offered to pay for half the cost of services. While Grandmother testified that she could

not afford DBT sessions as none of the suggested providers accepted her insurance

and would cost a hundred dollars or more each session, DSS located a provider that

would cost $40 per session and offered to pay half of that fee. The trial court rejected

Grandmother’s testimony that she could not afford $40 per month to attend bi-weekly

sessions and found that she willfully refused to engage in mental health treatment.

DSS made reasonable efforts to assist Grandmother, but she rejected its assistance.

Conclusion

For the foregoing reasons, we affirm the trial court’s permanency planning

order ceasing reunification efforts.

AFFIRMED.

Judges ZACHARY and THOMPSON concur.

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