On 18 May 1998, petitioner Wilkes County Department of Social
Services (“petitioner” or “DSS”) filed a juvenile petition alleging
that Raymond and Christopher were abused and neglected and obtained
a non-secure custody order for the children. On 1 June 1998, the
trial court ordered that legal custody of the children continue
with petitioner and that physical custody of the children be with
their maternal grandparents. However, on 17 July 1998, the trial
court returned both legal and physical custody to petitioner due to
the maternal grandmother's violation of certain conditions of the
custody order. On 15 February 1999, the trial court ordered that
legal and physical custody of the children continue with
petitioner, but ordered that the children be placed in the home of
their paternal grandparents. The children resided with their
paternal grandparents for approximately one week, after which they
were returned to the custody of DSS due to the grandparents'
inability to care for them.
On 27 April 2000, the trial court entered a permanency
planning order pursuant to G.S. . 7B-907. The order directed
petitioner to institute proceedings to terminate respondent's
parental rights. On 21 September 2000, at the suggestion of
Stephanie Sparks, respondent's case worker at DSS, the court
entered a consent order changing the permanency plan from
termination of parental rights to reunification with the mother.
On 15 December 2000, the children were placed back in
respondent's home on a trial basis. On 29 March 2001, a report of
inappropriate discipline involving Raymond prompted DSS again to
remove the children from respondent's home. On 19 September 2001, the trial court ordered that legal and
physical custody of the children remain with petitioner and that
the permanency plan change from reunification with the mother to
termination of parental rights. In this order the trial court made
the following pertinent findings of fact:
10. No relatives are available who can
provide a safe and suitable home for the
children within a reasonable period of time,
nor is there a relative available who could
assume guardianship of the children.
11. The Wilkes County Department of Social
Services has utilized reasonable efforts to
eliminate the need for placement of the
children outside of a parent's home. Indeed,
the record reflects that the Department of
Social Services has provided more care and
services and has afforded the mother of the
children more opportunities than in most
cases. This is particularly true in light of
the Department's having sought and obtained
permission to pursue termination of parental
rights, and then affording the mother another
opportunity to keep her children.
12. It is apparent that the mother has a very
antagonistic attitude toward service providers
in this case, particularly the Department of
Social Services.
13. Although the mother reports that she has
not had much contact with the father of her
children, the Court notes that the mother is
once again living in Onslow County so that the
children may be near their paternal
grandparents. This is so despite the fact
that almost all of the mother's family,
including the children under consideration in
these cases, reside in Wilkes County, North
Carolina.
14. The mother has another child, Tiffany,
who is not at issue in these cases.
Apparently, David Weiler is also the father of
that child; and that Mr. Weiler has periodic
contact with the child, despite the mother's
testimony that she does not know where the
father is.
15. The Court notes that the mother has
changed her residence to and from Onslow
County on at least three (3) occasions since
the children have been in foster care. The
mother states that the most recent change in
her residence was due to more jobs being
available in Onslow County.
16. The children continue to have serious
behavior problems and are continuing in
counseling. Both of the children take
medications for their Attention Deficit
Hyperactivity Disorder.
17. In their current foster home placement,
an additional staff member has been added to
each shift so that there will be sufficient
persons to monitor the behavior of Raymond and
Christopher.
18. The mother continues to blame the
Department of Social Services for any problems
which she and her children are having; and
that the mother continues to accept little, if
any, responsibility for her children's
behaviors or for those events which led to the
removal of the children in 1998.
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20. It is not in the juveniles best interests
for them to be returned to the home of their
mother. The mother's continued obstructionist
attitude and refusal to accept responsibility
for her children's behaviors, coupled with her
repetitive switching of jobs and residence,
leads the Court to conclude that the mother is
still exhibiting inconsistent behaviors. The
Court notes that since moving to Sneads Ferry,
North Carolina, the mother has had at least
three (3) jobs.
21. The court has been presented with no
evidence which indicates that there are any
barriers to adoption of the juveniles.
22. The best plan of care to achieve a safe,
permanent home for the juveniles within a
reasonable period of time is pursuit of
termination of parental rights and adoption.
Based upon the aforementioned findings of fact, the trial
court reached the following conclusions of law: 2. It is in the best interest and general
welfare of the above-named children for their
legal and physical custody to remain with the
Wilkes County Department of Social Services.
3. The appropriate plan for the juveniles is
pursuit of termination of parental rights and
adoption.
[1] Before addressing respondent's arguments, we must first
address petitioner's motion to dismiss this appeal. Petitioner
asserts that this appeal is interlocutory and not properly before
us, arguing that the 19 September 2001 order from which this appeal
was taken is not a “final order” as defined in G.S. . 7B-1001. The
thrust of petitioner's argument is that because the order did not
change custody, but merely continued custody in DSS, it was not an
order of disposition after an adjudication of abuse, neglect or
dependency. For the following reason, this motion is denied.
G.S. . 7B-1001 provides that review of any “final order of the
court in a juvenile matter . . . shall be before the Court of
Appeals.” It further provides that a “final order shall include:
(1) Any order finding absence of jurisdiction; (2) Any order which
in effect determines the action and prevents a judgment from which
appeal might be taken; (3) Any order of disposition after an
adjudication that a juvenile is abused, neglected, or dependent; or
(4) Any order modifying custodial rights.” G.S. § 7B-1001 (2001)
(emphasis added).
Here, the juveniles were adjudicated neglected by order 1 June
1998. On 27 April 2000, the court ordered that the permanency plan
for the juveniles be termination of parental rights. Subsequently,
pursuant to DSS's request, the court changed the permanency planfrom termination of parental rights to reunification with the
mother. The present order again changed the disposition from
reunification with the mother to termination of parental rights.
An order that changes the permanency plan in this manner is a
dispositional order that fits squarely within the statutory
language of section 7B-1001. See In re Eckard, 144 N.C. App. 187,
547 S.E.2d 835 (2001), appeal after remand, 148 N.C. App. 541, 559
S.E.2d 233 (2002). Thus, the appeal is properly before us and
petitioner's motion to dismiss is denied.
[2] Respondent argues that the trial court's findings of fact
are not supported by competent evidence and, in turn, that the
findings of fact do not support the conclusions of law. All
dispositional orders of the trial court after abuse, neglect and
dependency hearings must contain findings of fact based upon the
credible evidence presented at the hearing.
In re Helms, 127 N.C.
App. 505, 510-11, 491 S.E.2d 672, 676 (1997). If the trial court's
findings of fact are supported by competent evidence, they are
conclusive on appeal.
In re Isenhour, 101 N.C. App. 550, 553, 400
S.E.2d 71, 73 (1991). In a permanency planning hearing held
pursuant to Chapter 7B, the trial court can only order the
cessation of reunification efforts when it finds facts based upon
credible evidence presented at the hearing that support its
conclusion of law to cease reunification efforts.
Eckard at 199,
547 S.E.2d at 842. Although we believe there was competent
evidence presented at the hearing to support the findings of fact
contained in the order, we do not believe the findings support theconclusions. Thus, for the reasons discussed below, we reverse the
order of the trial court.
The purpose of a permanency planning hearing is “to develop a
plan to achieve a safe, permanent home for the juvenile within a
reasonable period of time.” G.S. . 7B-907(a) (2001). The trial
court has the authority to cease reunification efforts pursuant to
section 7B-507(b):
(b) In any order placing a juvenile in the
custody or placement responsibility of a
county department of social services, whether
an order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that:
(1) Such efforts clearly would be futile or
would be inconsistent with the juvenile's
health, safety, and need for a safe, permanent
home within a reasonable period of time.
G.S. . 7B-507(b) (2001). “When a trial court is required to make
findings of fact, it must make the findings of fact specially.”
In
re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003).
Additionally, “[t]he trial court may not simply 'recite
allegations,' but must through 'processes of logical reasoning from
the evidentiary facts' find the ultimate facts essential to support
the conclusions of law.”
Id. (citations and quotation marks
omitted).
Here, the trial court made no such findings. The court found
as fact neither that efforts toward reunification with respondent
would be futile nor that such efforts would be inconsistent with
the juveniles' health, safety, and need for a permanent home. Thetrial court came closest to making these required findings in
paragraphs 20 and 22. Number 22, designated as a finding of fact,
provides that “The best plan of care to achieve a safe, permanent
home for the juveniles within a reasonable period of time is
pursuit of termination of parental rights and adoption.” We
believe, however, that despite its inclusion in the findings of
fact, number 22 is actually a conclusion of law and, thus, does not
satisfy the court's obligation under section 7B-507(b).
See
Johnson v. Adolf, 149 N.C. App. 876, 878 n.1, 561 S.E.2d 588, 589
n.1 (2002) (“Although this statement is included . . . as a finding
of fact, and thus inappropriately labeled, this Court will treat it
as a conclusion of law”). Further, finding number 20 is a summing
up of the types of problems the court identified in respondent's
efforts, to wit: “obstructionist attitude,” “refusal to accept
responsibility,” “repetitive switching of jobs and residence,” and
“inconsistent behaviors.” None of these problems were found to be
inconsistent with the juveniles health, safety and need for a
permanent home. Thus, we conclude that the findings the court did
make are insufficient to support the conclusions of law.
The order here is similar to that in
Eckard, where this Court
found that the findings of fact did not support the conclusions of
law that ceased reunification efforts with the mother. There the
court found as fact that:
(1) Respondent has had relationships with five
different men in the two years preceding the
hearing, (2) respondent is “gullible and
naive,” (3) respondent would require “ongoing
assistance from professionals for a number of
reasons,” with “no guarantees that she would
[not] form questionable relationships, which
could put her daughter at risk,” (4)respondent has an I.Q. “which ranks in the
extremely low range,” (5) “[the juvenile] is
too bonded to her current placement [with her
foster parents] to risk her young and fragile
well-being at this time” and (6) respondent
did not do more to protect [the juvenile].
Id. at 198-99, 547 S.E.2d at 842. The Court went on to hold that
“all of the above findings do not constitute sufficient evidence to
support the conclusion that it is in [the juvenile's] best interest
to cease reunification efforts with her natural mother.”
Id. at
199, 547 S.E.2d at 842. On reconsideration after remand, this
Court again held that these findings were not sufficient to support
the conclusion of law to change the permanency plan from
reunification to termination of parental rights.
In re Eckard, 148
N.C. App. 541, 559 S.E.2d 233 (2002),
disc. review denied, 356 N.C.
163, 568 S.E.2d 192 (2002).
Likewise, in
In re Nesbitt, 147 N.C. App. 349, 555 S.E.2d 659
(2001), this Court reviewed an order terminating the mother's
parental rights. In
Nesbitt, the trial court found as fact that
the mother previously worked as an exotic dancer; was arrested for
lewd and indecent conduct; worked approximately seven different
jobs since the juvenile was removed from her home; and had been
evicted from her apartment, lived in a motel part time, and lived
in a shelter since her children had been removed from her home.
Id.
This Court held that these facts did not provide an adequate
basis for terminating the mother's parental rights, noting that “we
are impressed with the mother's continued efforts to secure
employment” and that “the record shows that in spite of her
troubled work history, Ms. Nesbitt has maintained child supportpayments while [the juvenile] was in the custody of [social
services] and has maintained a home for almost a year.”
Id. at
359-60, 555 S.E.2d at 666.
Here, the trial court ordered the cessation of reunification
efforts based on findings less extensive than those made in
Eckard
and
Nesbitt. The trial court based its decision primarily on
respondent's “continued obstructionist attitude and refusal to
accept responsibility for her children's behaviors, coupled with
her repetitive switching of jobs and residence.” The court,
however, as mentioned above, made no statutory findings that
reunification efforts would be futile or that the health and safety
of the children were inconsistent with such efforts as required by
section 7B-507(b).
Thus, we conclude that, in light of its failure to make the
findings required by statute, the court's findings do not support
its conclusions of law that efforts to reunify respondent with her
children should cease and that the “appropriate permanent plan for
the juveniles is pursuit of termination of parental rights and
adoption.”
Reversed.
Judges MARTIN and STEELMAN concur.
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