IN THE MATTER OF: PATRICK LEDBETTER, DOB: 8-22-1992 minor child.
THE BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES,
Petitioner
v.
PAMELA LEDBETTER, RICHARD HOLLOWAY
Respondents
John C. Adams, for petitioner-appellee.
Judy N. Rudolph, for Guardian ad Litem-appellee Kim Teich.
Lynne Rupp, for respondent-appellant.
CALABRIA, Judge.
Pamela Ledbetter (“respondent”) appeals the 11 December 2001
order placing her child, Patrick (“the child”), in the custody of
his father, Richard Holloway (“the father”) with the Buncombe
County Department of Social Services (“DSS” or “petitioner”)
providing protective supervision, and respondent being entitled to
supervised visitation.
On 27 July 2000, DSS filed a petition alleging the child was
a neglected juvenile. The petition explained: in February 2000,
DSS substantiated that respondent used inappropriate discipline on
the child's sibling; respondent refused to cooperate with
petitioner, and although she received some services, she “still hasdifficulty in parenting her children[;]” on 17 July 2000,
respondent was arrested for assaulting and threatening to kill the
child's sibling; on 18 July 2000, respondent agreed to have the
child placed with her friend Melanie Johnson (“Johnson”) pending
the outcome of psychological evaluations. A hearing on the
petition was held 23 October 2000. On 3 January 2001, the order
was filed which adjudicated the child neglected and found it was in
his best interests to remain in the custody of Johnson with DSS
providing protective supervision, unsupervised visitation with his
father, and supervised visitation with respondent. The court
ordered respondent to transfer all child support and social
security payments to Johnson.
Thereafter, the court conducted review hearings and entered
orders approximately every two months. Five psychological
evaluations revealed respondent suffers no serious psychopathy. In
a letter to the trial court in June 2001, a psychologist for the
area mental health agency advised “that Ms. Ledbetter's issues with
the Department of Social Services be addressed through some other
avenue than having her seek mental health treatment. Providing
treatment to a patient without psychopathology would not be ethical
and would not be fruitful.” However, the child remained with
Johnson and continued to have supervised visitation with his mother
and unsupervised visitation with his father.
Two issues were repeatedly addressed in the court's review
orders: (1) the child's encopresis, a disorder which causes him tosoil himself; and (2) the mother's difficulty abiding by court
orders.
The child has suffered the effects of encopresis since 1997.
A medical examination, in the Fall of 2000, revealed no medical
basis for the child's encopresis, but rather the doctor “believe[d]
it is a result of fear and an emotional problem.” The incidences
of encopresis were documented to increase surrounding visitation
between the child and his mother and “with any sort of stress or
change in routine.” A DSS report from July 2001, noted: “[the
child's] doctor has reported [the child] is experiencing moderately
severe anxiety reactions to his visits with his mother.”
Respondent did not comply with court orders. First, although,
in the 3 January 2001 order and each order thereafter, respondent
was ordered to transfer all child support and social security
payments to Johnson, respondent never transferred the payments.
The court found as fact that despite the court orders to the
contrary, “[respondent] believes she does not owe said money to
[the Johnsons].” Second, from a hearing held 3 and 7 August 2001,
and the subsequent order filed 10 September 2001, the court, due to
reoccurring problems with the respondent's visitation, ordered
supervised visitation occur only on the following conditions:
“[respondent] will not bring anyone with her to the visits,
[respondent] will arrive for the visits fifteen minutes after the
Johnson[]s have delivered the child for the visits, and
[respondent] will stay a minimum of 1,000 feet away from [the
Johnsons].” Despite these clear directives, respondent was foundin contempt of court for arriving early to visitation, and
violating a court order by parking two spaces away from Johnson.
Although respondent apparently did not request their attendance,
two of respondent's former witnesses were present at DSS on the day
she violated the court order. For these actions, the court found
respondent in contempt at a hearing on 16 November 2001, in an
order filed 11 December 2001. Sentencing was suspended pending
compliance with the court's directives with respect to visitation.
Following the contempt hearing, the court held the permanency
planning and review hearing from which respondent appeals. The
court found respondent had repeatedly violated court orders, while
the father was “in full compliance with prior Court Orders.” DSS
recommended the child be placed with his father and the case be
closed. The court ordered the child be placed with his father,
finding as fact that despite DSS making “reasonable efforts to
return the minor child to the home, . . .returning to the home is
no longer the best plan for the minor child.” The court, however,
did not order the case closed. The court ordered DSS to continue
“providing protective supervision” and that supervised visitation
between the child and respondent continue, including specific
provisions for visitation during the upcoming Christmas holiday.
Respondent appeals.
Respondent asserts the trial court erred ordering the
cessation of reunification efforts because there was not sufficient
evidence to support this finding thereby violating N.C. Gen. Stat.
§ 7B-907(b).I. Sufficiency of the Findings
Respondent asserts the trial court erred by entering the 11
December 2001 order without making the requisite findings of fact
as required by N.C. Gen. Stat. § 7B-907.
First, the Guardian ad Litem argues the order was not a
permanency planning order pursuant to N.C. Gen. Stat. § 7B-907, but
rather was a standard review hearing pursuant to N.C. Gen. Stat. §
7B-906 and, therefore, this Court should look to § 7B-906 in
considering the sufficiency of the findings of fact. While the
order is not designated a permanency planning order, Judge Pope
repeatedly referred to the hearing as a permanency planning
hearing. Moreover, both DSS and respondent agree with Judge Pope
that the hearing was a permanency planning hearing, and the order
must comply with N.C. Gen. Stat. § 7B-907. Accordingly, we address
respondent's argument.
At a permanency planning hearing, the court shall consider
information from any “person or agency which will aid” its review,
and:
At the conclusion of the hearing, if the
juvenile is not returned home, the court shall
consider the following criteria and make
written findings regarding those that are
relevant:
(1) Whether it is possible for the juvenile to
be returned home immediately or within the
next six months, and if not, why it is not in
the juvenile's best interests to return home;
(2) Where the juvenile's return home is
unlikely within six months, whether legal
guardianship or custody with a relative or
some other suitable person should be
established, and if so, the rights andresponsibilities which should remain with the
parents;
(3) Where the juvenile's return home is
unlikely within six months, whether adoption
should be pursued and if so, any barriers to
the juvenile's adoption;
(4) Where the juvenile's return home is
unlikely within six months, whether the
juvenile should remain in the current
placement or be placed in another permanent
living arrangement and why;
(5) Whether the county department of social
services has since the initial permanency plan
hearing made reasonable efforts to implement
the permanent plan for the juvenile;
(6) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-907(b) (2001). Moreover, “the judge shall
make specific findings as to the best plan of care to achieve a
safe, permanent home for the juvenile within a reasonable period of
time.” N.C. Gen. Stat. § 7B-907(c)(2001).
In the case at bar, the trial court made the following
findings:
4. That immediately prior to this Review
Hearing. . . [the court] found as fact, and
adjudicated as such, that [respondent] was in
willful and intentional contempt of this Court
. . . .
5. That, pursuant to prior Court Orders,
[respondent] was to pay [child support to the
Johnsons]. . . [t]o date, no money has been
paid . . . .
8. . . .Mr. Holloway is in full compliance
with prior Court Orders. . . and the Buncombe
County Department of Social Services is in
receipt of a positive homestudy. . . .
9. That the Buncombe County Department of
Social Services recommended that it would bein the best interest of the minor child that
his custody by [(sic)] placed with his father,
Richard Holloway, and that the DSS case be
closed. DSS did not recommend placement, or
custody, with Pamela Ledbetter, due to her
behaviors and the negative effect those
behaviors have had on the minor child.
10. That it would be in the best interest of
the minor child that his custody be placed
with his father, Richard Holloway.
11. That the Buncombe County Department of
Social Services made reasonable efforts to
prevent removal of the child from the home,
but removal was necessary to protect the
safety and health of the minor child; and that
the Buncombe County Department of Social
Services has made reasonable efforts to return
the minor child to the home, but returning to
the home is no longer the best plan for the
minor child.
None of these findings address the requirement in N.C. Gen.
Stat. § 7B-907(b)(1) requiring the court make findings regarding
“[w]hether it is possible for the juvenile to be returned home. .
. within the next six months. . . .” N.C. Gen. Stat. § 7B-
907(b)(1). Moreover, findings that respondent was held in contempt
of court for violating visitation restrictions, and that she has
refused to pay child support, do not alone explain “why it is not
in the juvenile's best interests to return home[.]” Despite
evidence of the child's encopresis, and that contact with
respondent may be a significant trigger for his condition, the
order contains no findings of fact relating to this issue. In
fact, the trial court deleted the relevant findings.
The court also did not address the requirement of N.C. Gen.
Stat. § 7B-907(b)(4) requiring the court to explain why the child
was being transferred from the Johnsons' to his father. A DSSreport explains the Johnsons “are no longer willing to continue
having [the child] live with then[(sic)], unless they are granted
guardianship.” This context suggests that given the choice between
the mother, the father, and foster care, the court chose to place
the child with the father. However, this does not demonstrate a
permanent plan or why that plan is in the best interests of the
child. The court found as fact and concluded as a matter of law
that it was in the child's best interests to be placed in the
custody of his father, but there are so supporting findings of fact
except that respondent was in noncompliance with court orders while
the father was in compliance with the prior orders.
Finally, the meaning of the court's finding that “returning
home is no longer the best plan for the minor child” has been
debated on appeal. Respondent asserts this was an order for DSS to
cease reunification efforts, while DSS asserts the court meant to
add to the finding the words: “at this time.” Neither
interpretation resolves the underlying problem that these findings
of fact do not comport with the requirements of N.C. Gen. Stat. §
7B-907(b).
We note the evidence and reports in this case might have
supported the determination of the trial court. However, our
statute requires the court to consider the § 7B-907(b) factors and
make relevant findings. In this case, respondent correctly asserts
the findings of fact do not comport with the requirements of the
statute. Recent decisions of this Court support reversing the
order of the trial court and remanding the case where the findingsof fact do not comport with N.C. Gen. Stat. § 7B-907. In the
Matter of Eckard, 148 N.C. App. 541, 559 S.E.2d 233 (2002)
(reversing the order of the trial court and remanding the case in
part due to failure to comply with N.C. Gen. Stat. § 7B-907(b)(2));
In re Dula, 143 N.C. App. 16, 544 S.E.2d 591, aff'd, 354 N.C. 356,
554 S.E.2d 336 (2001) (reversing the order of the trial court and
remanding the case for failure to comply with N.C. Gen. Stat. § 7B-
907(d)).
Accordingly, we reverse the order and remand this case to the
trial court. We do not reach respondent's remaining assignments of
error.
Reversed and remanded.
Chief Judge EAGLES and Judge HUNTER concur.
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