NORTH CAROLINA COURT OF APPEALS
Filed: 2 April 2002
In the Matter of:
BETHANY ANN FINDLEY and
CALEB JOSHUA FINDLEY
Alexander County
No. 99 J 19
99 J 20
Appeal by respondent-appellant from judgment entered 20
October 2000 by Judge Wayne L. Michael in Alexander County
District Court. Heard in the Court of Appeals 5 December 2001.
James F. Mock, and Andrea D. Edwards, for petitioner-
appellee Alexander County Department of Social Services.
Edward L. Hedrick, IV, for intervenor-appellees David and
Syblena Findley.
Caryn Lee Brzykcy, for respondent-appellant Diana Findley.
HUDSON, Judge.
Respondent-appellant Diana Findley (the “mother”) is the
mother of two minors, Bethany Ann Findley, born 5 January 1992,
and Caleb Joshua Findley, born 2 October 1994 (the “children”).
The children's father, Dearel Findley (“the father”), married
defendant-appellee in 1991 and divorced her in 1997; he died in
August 1999. David and Syblena Findley (“the Findleys”),Dearel's brother and sister-in-law, have been the caretakers of
the children since that time. In June 1999, the District Court
of Alexander County entered an Order giving custody of the
children to petitioner Alexander County Department of Social
Services (“ACDSS”), with placement of the children in its
discretion. The mother is appealing those portions of the Order
entered 20 October 2000, which ended the mother's regular
visitation with the children, except when allowed in the
discretion of the Findleys. We reverse.
In April 1993, ACDSS first became involved with this family
when it responded to reports of domestic violence in the
household. Over the next five years, ACDSS periodically
intervened in response to repeated allegations of domestic
violence. The mother and father separated in 1995 and, in 1996
the court entered an order giving them joint custody of the
children. They divorced in 1997, and in 1998 the court changed
the custody arrangement by awarding the father primary legal
custody, and giving the mother physical custody three weekends
and one weeknight per month. Because he became very ill with
pancreatic cancer, Dearel asked the Findleys to help him take
care of the children. They agreed and became the primary
caretakers of the children at that time.
On 29 April 1999, ACDSS filed two Juvenile Petitions
alleging that the children were dependant, and that the motherand father were neglecting them. These petitions were based in
part on reports of the mother's conduct during weekend visitation
with the children. According to the children, the mother struck
Bethany with a wooden paddle, causing bruises. The children
told investigators that their mother forced Caleb to hold his
sister's legs so she would stay still during the paddling, and
that their mother instructed them not to tell the Findleys about
the incident. The petition also alleged that the father was
unable to care for the children because of his illness.
In response to ACDSS' allegations of neglect and dependency,
the mother and father voluntarily signed a Memorandum of
Judgment/Order on 23 June 1999 in which they stipulated that the
children were dependent. The court then so found, awarded legal
and physical custody of the children to ACDSS, and provided that
placement of the children was in the discretion of ACDSS. As a
result of this Judgment/Order, the children remained in the care
of the Findleys.
Thereafter, ACDSS arranged for supervised visitation between
the children and their mother, but the attempts at visitation
were fraught with problems. Visits often ended early because the
children were distraught and their mother could not communicate
with them. In a 7 September 2000 order, the trial court found as
fact that, “[m]ost of the visitations have been disruptive to thechildren. Dianna Findley has argued with the children and had
difficult times controlling the behavior of the minor children.”
On more than one occasion, ACDSS employees observed Caleb
vomiting outside of ACDSS before scheduled visits, because he did
not want to visit his mother.
In multiple Orders between June 1999 and October 2000, the
trial court found as fact numerous other incidents which
supported its decisions to limit and ultimately end visitation
between the children and their mother. For example, in July
1999, the mother refused to return the children on schedule, and
did not relinquish them until a social worker arrived to pick
them up late in the evening. A week later, the mother barricaded
herself and the children in her home for an extra day and night,
remaining there until Sheriff's deputies obtained a court order
and broke into the home to retrieve the children. The deputies
found both of the children frightened and locked in a back
bedroom. On that occasion, Bethany had bruises on her body.
On 8 September 1999, the Findleys filed a Motion to
Intervene in the court proceedings, and asked that they be
awarded legal custody of the children. In a 24 November 1999
Order, the trial court granted the Findleys' Motion to Intervene.
On 6 January 2000, the trial court also allowed the children'smaternal grandmother, Carol Ann Spears (“Ms. Spears”), to
intervene in the proceedings.
On 20 April 2000, the trial court continued ACDSS' custody
and placement authority, and named the Findleys guardians of the
children. In support of its decision, the court made findings
based on the testimony of two psychologists, Dr. James A. Powell
and Dr. Doris B. Tinker, who both examined the mother. According
to Dr. Powell, the mother exhibited signs of “obsessive-
compulsive behaviors, a distorted perception of interpersonal
relationships, immaturity, and impulsivity, and poor judgment.”
He also reported that she “could have inadequate control over her
responses and might result in behavior which could place the
children in danger.” Dr. Powell did not believe that the mother
“was able to adequately care for her children or be alone with
them in an unsupervised environment.” He also testified that
visitation may benefit the mother, but was not in the best
interests of the children. Dr. Tinker made similar
recommendations to the court.
In the April 2000 Order, the court required that the
children “receive meaningful and appropriate counseling,”
provided for visitation between the children and the mother, and
for separate visitation between the children and Ms. Spears. The
court further provided that it would review the visitation at alater date to determine if it should continue. This Order was
not appealed.
On 20 October 2000, the trial court reviewed the visitation
between the children and their mother, but made no findings of
fact other than incorporating by reference a number of reports
and documents. The court then ordered visitation for the mother
at the sole discretion of the Findleys. This 20 October 2000
order is the one at issue in this appeal.
On appeal, the mother contends that in the 20 October 2000
Order, the trial court: (1) did not make proper findings, (2)
improperly gave the Findleys discretion in allowing visitation
between the mother and her children, and (3) improperly ordered a
de facto termination of her parental rights. The mother seeks to
regain regular visitation with her children.
We hold that the trial court erred as a matter of law when
it gave the Findleys the sole discretion to determine if and when
the mother could visit with her children. The trial court
concluded that “[a]ny visitation that occurs will be in the sole
discretion of [the Findleys], with the only restriction being
that any contact between the children and [the mother] shall be
supervised by some adult who is satisfactory to [the Findleys].”
This Court has held that the trial court “should not assign the
granting of this privilege of visitation to the discretion of theparty awarded custody of the child.” In re Custody of Stancil,
10 N.C. App. 545, 551-52, 179 S.E.2d 844, 849 (1971). In
Stancil, we reversed an order which had allowed the children's
grandmother to decide if and when the children visited with their
natural mother. See id. We explained that the awarding of
visitation or the custody of a child is an exercise of a judicial
function, and that a trial court may not delegate this function
to the custodian of a child. See id. In addition, this Court
held that the trial court, not the guardian or custodial entity,
must make findings as to whether the parent has forfeited his/her
right to visitation and whether it is in the best interest of the
child to deny visitation to the parent. See id. In the absence
of findings that the parent has forfeited this right, the court,
weighing the best interests of the child “should safeguard the
parent's visitation rights by a provision in the order defining
and establishing the time, place and conditions under which such
visitation rights may be exercised.” Id. at 552, 179 S.E.2d at
849.
Here, the trial court made no findings concerning the
mother's fitness or the best interests of the children. The
trial court simply concluded as law that there is “no other
benefit to these children for continued visits with their mother,
Diana Findley.” When making a disposition or reviewing one, atrial court must enter an order with findings sufficient to show
what it considered. See In re Chasse, 116 N.C. App. 52, 62, 446
S.E.2d 855, 861 (1994); see also In re Shue, 311 N.C. 586, 319
S.E.2d 567 (1984). Without such findings, we are unable to
review this order or determine if the court applied the law
properly, or exercised its discretion soundly. See Chasse, 116
N.C. App. at 62, 446 S.E.2d at 861.
Because the trial court improperly gave the Findleys
unfettered discretion over visitation instead of addressing the
necessary issues itself, we vacate the Order of 20 October 2000.
In light of this disposition, we do not reach the mother's other
arguments on appeal. We reverse and remand to the trial court
for further proceedings in accordance with this opinion.
ORDER VACATED.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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