IN THE MATTER OF: Burke County
No. 98-J-51
DONALD MILTON HOPKINS, JR.
Stephen M. Schoeberle for petitioner-appellee Burke County
Department of Social Services; Mary R. McKay, Guardian Ad
Litem.
Susan J. Hall for respondent-appellant.
HUNTER, Judge.
Donald Milton Hopkins, Sr. (“respondent”) appeals from a
permanency planning review order in which the trial court concluded
that the permanent plan for respondent's son, Donald Milton
Hopkins, Jr. (“D.J.”), should be adoption. The court ordered the
Department of Social Services (“DSS”) to take all steps necessary
to achieve the plan, including filing a petition to terminate
parental rights. Respondent contends the trial court failed to
make the necessary findings of fact required by N.C. Gen. Stat. §
7B-907 (2001) and N.C. Gen. Stat. § 7B-507 (2001). Respondent
further argues the trial court erred in ordering that adoption be
the permanent plan for D.J. We vacate the permanency planningreview order and remand this case for the trial court to make
additional findings of fact.
D.J. was initially placed in the non-secure custody of DSS in
March 1995 after an incident of domestic violence. He remained in
DSS' custody until 1 May 1997, when custody was given to his
paternal aunt, Michelle Hopkins (“Ms. Hopkins”). D.J. was placed
with Ms. Hopkins since his mother was unstable and unable to
provide consistent care for him and respondent had recently been
released from prison and had consented to D.J. being placed in Ms.
Hopkins' custody. The trial court reviewed the case on 30 April
1998 and ordered that D.J. remain with Ms. Hopkins. During the
1998-1999 school year, Ms. Hopkins gave physical custody of D.J. to
respondent without prior court approval. While living with
respondent, D.J. was sexually abused by respondent's step-brother,
Boyd Lane (“Mr. Lane”) who lived with respondent. Mr. Lane was
charged for sexually abusing D.J. and pleaded guilty to indecent
liberties with a child. Years prior, while respondent and Mr. Lane
were growing up, Mr. Lane had sexually abused respondent.
Upon investigation of the sexual molestation, DSS requested
that D.J. be placed in therapy. Initially, respondent resisted
treatment but D.J. was placed in therapy at Foothills in Marion,
North Carolina, from 18 April 2000 until 18 June 2000. Respondent
stopped taking D.J. to therapy sessions because he reported to the
therapist that he was moving to Morganton, North Carolina, and
would contact Foothills there. However, there is no record that
this ever occurred. D.J. returned to Foothills in Marion forcounseling from 8 November 2000 until 29 November 2000. D.J.
resumed treatment on 13 September 2001.
On 22 August 2001, DSS filed a motion for review requesting
the court to conduct a review hearing due to changed circumstances
since the entry of the last order. DSS alleged the following: (1)
respondent had obtained physical custody of D.J. from Ms. Hopkins
without prior court approval; (2) D.J. was sexually abused by an
adult male who respondent allowed to reside in the home and to
sleep in the same bed as D.J.; and (3) respondent had failed to
arrange for D.J. to get counseling. A hearing was held pursuant to
the motion for review on 1 November 2001. Thereafter, the trial
court entered an order granting legal and physical custody of D.J.
to DSS, terminating reunification efforts with respondent, D.J.'s
mother (Michelle Riddle), and D.J.'s paternal aunt (Ms. Hopkins),
and ordering a permanency planning review of available options. On
29 November 2001, a permanency planning review was held. The trial
court granted continued custody of D.J. to DSS, terminated
reunification efforts with respondent, D.J.'s mother, and D.J.'s
paternal aunt, and ordered that adoption be the permanent plan for
D.J. The court additionally ordered the filing of a petition to
terminate parental rights within sixty days. Respondent appeals.
Respondent contends the trial court failed to comply with the
statutory requirements of N.C. Gen. Stat. § 7B-907 and N.C. Gen.
Stat. 7B-507 by making insufficient findings of fact. We agree.
Pursuant to Section 7B-907(a), “[a] trial court is required to
conduct a permanency planning hearing in every case where custodyof a child has been removed from a parent.” In re Eckard, 148 N.C.
App. 541, 543, 559 S.E.2d 233, 234, disc. review denied, 356 N.C.
163, 568 S.E.2d 192 (2002). At the hearing “the court shall
consider information from the parent, the juvenile, the guardian,
any foster parent, relative or preadoptive parent providing care
for the child, the custodian or agency with custody, the guardian
ad litem, and any other person or agency which will aid it in the
court's review.” N.C. Gen. Stat. § 7B-907(b). If, at the
conclusion of the hearing, the court decides the child is not to
return home, the trial court must consider specific criteria and
make written findings of fact concerning those criteria that are
relevant. Id. The criteria to be considered are listed as
follows:
(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 and
responsibilities 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.
Id. The trial court is also required to make specific findings
regarding “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). Moreover, according to Section 7B-907(c), if
the juvenile's placement continues with DSS, the order must comply
with Section 7B-507 which requires the court, among other things,
to make “a finding that the juvenile's continuation in or return to
the juvenile's own home would be contrary to the juvenile's best
interest[.]” N.C. Gen. Stat. § 7B-507(a)(1).
In the case sub judice, the trial court made the following two
findings of fact in its permanency planning order:
1. The Court adopts the statements contained
in Ms. Jackson's report, Mr. West's addendum
and Ms. Riddle's letter and itinerary as its
findings and incorporates those documents
herein by reference.
2. Ms. Riddle had scheduled a substance
abuse assessment and a psychological
evaluation. She attends anger management
counselling [sic]; and her itinerary takes
into account having the juvenile in her care.
Mr. Hopkins attends AA and has scheduled anger
management counselling [sic].
We conclude that the court did not make the necessary findings
required by Section 7B-907 and Section 7B-507. “When a trial court
is required to make findings of fact, it must make the findings of
fact specially.” In re Harton, ___ N.C. App. ___, ___, 577 S.E.2d334, ___ (2003) (citing In re Anderson, 151 N.C. App. 94, 96, 564
S.E.2d 599, 601 (2002); N.C. Gen. Stat. § 1A-1, Rule 52 (2001)).
The trial court's findings must consist of more than a recitation
of allegations; the trial court must find ultimate facts necessary
to support the conclusions of law through “'processes of logical
reasoning from the evidentiary facts.'” Anderson, 151 N.C. App. at
97, 564 S.E.2d at 602 (quoting Appalachian Poster Advertising Co.
v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988)).
The trial court in this case made no findings of fact
regarding the specific criteria provided in Section 7B-907(b). The
court also made no findings addressing “the best plan of care to
achieve a safe, permanent home for the juvenile within a reasonable
period of time” as required in Section 7B-907(c). The court
additionally failed to make a finding required by Section 7B-
507(a)(1) “that the juvenile's continuation in or return to the
juvenile's own home would be contrary to the juvenile's best
interest[.]” The court's findings consisted of one evidentiary
finding, the adoption of reports from the guardian ad litem and
DSS, and the adoption of Ms. Riddle's letter and daily itinerary
for D.J. if D.J. were placed with Ms. Riddle. These findings are
not “'specific ultimate facts . . . sufficient for the appellate
court to determine that the judgment is adequately supported by
competent evidence.'” Anderson, 151 N.C. App. at 97, 564 S.E.2d at
602 (quoting Montgomery v. Montgomery, 32 N.C. App. 154, 156-57,
231 S.E.2d 26, 28 (1977)). Therefore, we vacate the permanency
planning review order and remand this case for the trial court tospecially make the required findings of fact under Section 7B-
907(b), Section 7B-907(c), and Section 7B-507(a). Due to our
disposition of this case, we do not reach the issue of whether the
trial court erred in ordering that adoption be the permanent plan
for D.J.
Vacated and remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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