Appeal by respondent from order entered 31 December 2001 by
Judge M. Patricia DeVine in District Court, Orange County. Heard
in the Court of Appeals 13 February 2003.
Carol J. Holcomb, for petitioner-appellee Orange County
Department of Social Services; and Karen Davidson, for
Guardian ad Litem.
Winifred H. Dillon for respondent-appellant.
McGEE, Judge.
The Orange County Department of Social Services (DSS) filed a
juvenile petition on behalf of R.T.W. (the juvenile) alleging
neglect and dependency on 24 August 2001. The petition alleged
that the juvenile was neglected in that he "does not receive proper
care, supervision, or discipline from [his] parent" and he "lives
in an environment injurious to [his] welfare." The petition
alleged that the juvenile was dependent in that his "parent . . .
is unable to provide for the juvenile's care or supervision and
lacks an appropriate alternative child care arrangement." In an
attachment to the petition, it was alleged that respondent, the
fifteen-year-old mother of the juvenile, did not want "to parent"
the juvenile. It was further alleged that the juvenile was
conceived after respondent was raped by respondent's half-brother. The attachment further alleged that the juvenile lived with
respondent, respondent's ten-year-old brother, and the juvenile's
maternal grandmother, in the maternal grandmother's home. It was
further alleged that the home had no electricity other than an
extension cord running from the home to the juvenile's great-
grandparents' home located two houses away, that the home had no
water supply, and that lead-based paint was peeling from the walls
inside the home. It was alleged that respondent attended school
and had a part-time job, that the juvenile's maternal grandmother
was unemployed and an alcoholic, and that the family was unable to
locate alternative housing. It was also alleged that there was no
relative able to provide for the custody and care of the juvenile.
The petition was noticed for a prehearing conference to be
held on 29 August 2001, noting that a nonsecure custody order had
been entered and that the juvenile had been placed in the temporary
custody of DSS. At that prehearing conference, a memorandum of
agreement and order was entered, allowing visitation by respondent
to be coordinated by DSS and setting a nonsecure custody hearing
for 6 September 2001. Respondent and her attorney agreed to the
hearing being held beyond the seven-day period normally required.
The juvenile's father also entered into an agreement with DSS that
his next hearing would be on 1 November 2001.
Following the 6 September 2001 nonsecure custody hearing, the
trial court entered a custody order on 22 October 2001 making the
single finding of fact that:
1. Present in Court were Charlene Enns,
Social Worker for the Orange County Departmentof Social Services and the Department's
attorney, Carol J. Holcomb; Director, Guardian
ad Litem Program, Gretchen Aylsworth; Attorney
Guardian ad Litem, Karen Davidson;
Respondent/mother's Attorney, Jo Ann Ragazzo;
and Respondent/father's Attorney, Brian
Westrom.
The trial court concluded, in part:
2. That there is reasonable factual basis to
believe that those matters as alleged in the
Petition are true and the parent, guardian or
custodian consents to non-secure custody.
3. It is in the best interest of the juvenile
that non-secure custody be continued and that
he be placed in foster care/a home approved by
the court/a facility operated by the
petitioner/a facility approved by the court.
4. Reasonable efforts to prevent or eliminate
the need for placement of the juvenile have
been made by the Orange County Department of
Social Services.
The trial court ordered continuing nonsecure custody and placement
authority with DSS and an adjudication for 4 October 2001 as to
respondent and 1 November 2001 as to the father.
Following the 4 October 2001 adjudication, the trial court
entered a custody order on 1 November 2001, finding that:
1. Present in Court were Janet Martin, Social
Worker for the Orange County Department of
Social Services and the Department's attorney,
Carol J. Holcomb; Guardian ad Litem, Angela
Garcia-Lamarca; Director, Guardian ad Litem
Program, Gretchen Aylsworth; Attorney Guardian
ad Litem, Karen Davidson; Respondent/mother
. . . ; and her Attorney, Jo Ann Ragazzo.
2. A Court Report was submitted by Janet
Martin, Social Worker for the Orange County
Department of Social Services, which was
admitted into evidence as her testimony, a
copy of which shall be included in the file of
this action and the statements of fact
contained [t]herein shall be included hereinas findings of fact.
3. A Court Report was submitted by Angela
Garcia-L[a]marca, the Guardian ad Litem, which
was admitted into evidence as her testimony, a
copy of which shall be included in the file of
this action and the statements of fact
contained therein shall be included herein as
findings of fact.
The trial court made the following pertinent conclusions of law:
2. As to Respondent/mother . . . , the above-
named juvenile is a dependent juvenile within
the meaning and scope of N.C.G.S. 7A-517(13)
in that he is a juvenile in need of assistance
or placement because he has no parent,
guardian or custodian responsible for his care
or supervision or whose parent, guardian, or
custodian is unable to provide for [his] care
or supervision or lacks an appropriate
alternative child care arrangement.
3. As to Respondent/grandmother . . . , the
above-named juvenile is a neglected juvenile
within the meaning and scope of N.C.G.S. 7A-
523(21) in that he is a juvenile who does not
receive proper care, supervision, or
discipline from his parents, guardian,
custodian, or caretaker; or who has been
abandoned; or who is not provided necessary
medical care or other remedial care recognized
under State law, or who lives in an
environment injurious to his welfare, or who
has been placed for care or adoption in
violation of the law. In determining whether
a juvenile is a neglected juvenile, it is
relevant whether . . . that juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
4. That it is in the best interest of the
juvenile named above that custody and
placement authority be granted to the Orange
County Department of Social Services as
remaining in the custody and/or home of [his]
parent, guardian caretaker or prior custody is
contrary to [his] welfare and best interest.
5. Reasonable efforts to prevent or eliminate
the need for placement of the juvenile have
been made by the Orange County Department ofSocial Services.
The trial court ordered, inter alia, that the custody of the
juvenile continue with DSS pending future evaluation of
respondent's progress by the trial court; that respondent remain at
her placement; that neither respondent nor the juvenile return to
the juvenile's maternal grandmother's home on 21 November 2001; and
that respondent participate in therapy. The trial court set a
review hearing for 1 November 2001.
Following the hearing on 1 November 2001, the trial court
filed a custody order on 31 December 2001, in which it made
essentially the same three findings of fact as in the November
order. The trial court concluded in pertinent part:
2. That it is in the best interest of the
juvenile named above that non-secure custody
and placement authority be granted to the
Orange County Department of Social Services as
remaining in the custody and/or home of [the
juvenile's] parent, guardian caretaker or
prior custodian is contrary to [the
juvenile's] welfare and best interest.
3. Reasonable efforts to prevent or eliminate
the need for placement of the juvenile have
been made by the Orange County Department of
Social Services.
4. The placement and care of the juvenile are
the responsibility of the Orange County
Department of Social Services and the Orange
County Department of Social Services shall
provide and arrange for foster care or other
appropriate placement of this juvenile.
5. Reasonable efforts to eliminate the need
for placement of the juvenile shall not be
required or shall cease in that such efforts
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.
The trial court ordered, inter alia, that custody of the juvenile
continue with DSS, that reunification efforts immediately cease,
that all visits cease between the juvenile and respondent, his
maternal grandmother and other family members, and that the
permanent plan for the juvenile be adoption. The trial court also
ordered that a petition to terminate respondent's parental rights
be filed within sixty days and that the matter be reviewed on 7
February 2002.
Respondent appeals from the 31 December 2001 custody order.
Respondent has not set forth an argument in support of
assignments of error 1, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, and 16
and these assignments or error are deemed abandoned. N.C.R. App.
P. 28(b)(6); State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589,
593-94 (1975).
I.
Respondent argues the trial court erred by failing to comply
with the provisions in N.C. Gen. Stat. §§ 7B-905, 906, and 907 in
that the trial court (a) did not make sufficient findings of fact
to support its conclusions of law in the 31 December 2001 order and
(b) the trial court's written order was not filed until sixty days
after the 1 November 2001 hearing.
We must first determine the type of proceeding from which
respondent is appealing. Respondent argues that the trial court
failed to comply with the requirements of (1) N.C.G.S. § 7B-905 for
dispositional orders, (2) N.C.G.S. § 7B-906 for review of custody
orders, and (3) N.C.G.S. § 7B-907 for permanency planning hearings. Neither the 1 November 2001 order nor the 31 December 2001
order set forth the statute under which the trial court was
proceeding. The trial court had previously announced that the 4
October 2001 hearing would be an adjudication as to respondent.
The order entered 1 November 2001 following the 4 October 2001
hearing is in part consistent with the trial court's previous
pronouncement as to the purpose of the 4 October 2001 hearing. The
1 November 2001 order made an adjudication that as to respondent,
the juvenile was a dependent juvenile as defined by statute. The
trial court also adjudicated that as to his maternal grandmother,
the juvenile was a neglected juvenile within the statutory
definition.
(See footnote 1)
During the 4 October 2001 hearing, the trial court
also conducted a dispositional hearing, during which the trial
court reviewed reports from interested parties. Therefore, in the
1 November 2001 order, the trial court also made a disposition as
to the parties involved in the adjudication portion of the hearing.
The trial court concluded that it was in the juvenile's best
interest that custody and placement authority be granted to DSS and
that reasonable efforts to prevent the need for placement of the
juvenile had been made by DSS. The trial court ordered thatrespondent remain at her placement and undergo treatment, and also
ordered that the juvenile remain in the custody of DSS pending
review of respondent's progress. The dispositional portions of the
1 November 2001 order comply with the dispositional alternatives
listed in N.C. Gen. Stat. § 7B-903(a) (2001).
A trial court is required to conduct a review hearing within
ninety days from the date of the dispositional hearing, pursuant to
N.C. Gen. Stat. § 7B-906 (2001). In the present case, the trial
court met that requirement and scheduled a hearing for 1 November
2001 to review its decision from the 4 October 2001 hearing.
Respondent appeals from the 1 December 2001 order that resulted
from that review hearing.
(See footnote 2)
In a review hearing pursuant to N.C.G.S. § 7B-906, the trial
court is required to consider the following criteria and make
written findings regarding those that are relevant:
(1) Services which have been offered to
reunite the family, or whether efforts toreunite the family clearly would be
futile or inconsistent with the
juvenile's safety and need for a safe,
permanent home within a reasonable period
of time.
(2) Where the juvenile's return home is
unlikely, the efforts which have been
made to evaluate or plan for other
methods of care.
(3) Goals of the foster care placement and
the appropriateness of the foster care
plan.
(4) A new foster care plan, if continuation
of care is sought, that addresses the
role the current foster parent will play
in the planning for the juvenile.
(5) Reports on the placements the juvenile
has had and any services offered to the
juvenile and the parent, guardian,
custodian, or caretaker.
(6) An appropriate visitation plan.
(7) . . . .
(8) When and if termination of parental
rights should be considered.
(9) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-906(c) (2001). N.C. Gen. Stat. § 7B-906(d)
(2001) permits the trial court to enter any disposition authorized
under N.C.G.S. § 7B-903, including "continuing the placement under
review or providing for a different placement as is deemed to be in
the best interests of the juvenile." However, the trial court is
authorized to take these actions only after making the required
findings of fact under N.C.G.S. § 7B-906(d).
N.C.G.S. § 7B-906(c) and (d) specifically require the trial
court to make appropriate findings of fact when reviewing an order
pursuant to N.C.G.S. § 7B-906.
An examination of the 1 December
2001 order reveals that the trial court did not make the
appropriate findings of fact.
"In all actions tried upon the facts without a jury . . . thecourt shall find the facts specially and state separately its
conclusions of law thereon . . . ." N.C. Gen. Stat. § 1A-1, Rule
52(a)(1) (2001). Our Supreme Court noted in
Quick v. Quick, 305
N.C. 446, 451, 290 S.E.2d 653, 657 (1982), that "a proper finding
of facts requires a specific statement of the facts on which the
rights of the parties are to be determined, and those findings must
be sufficiently specific to enable an appellate court to review the
decision and test the correctness of the judgment."
Our Supreme Court has stated that "[t]he requirement for
appropriately detailed findings is thus not a mere formality or a
rule of empty ritual; it is designed instead 'to dispose of the
issues raised by the pleadings and to allow the appellate courts to
perform their proper function in the judicial system.'"
Coble v.
Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (quoting
Montgomery v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29
(1977)). A trial court is only required to make ultimate findings
of fact, as opposed to evidentiary findings of fact.
Armstrong v.
Armstrong, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988).
"Ultimate facts are the final facts required to establish
[petitioner's] cause of action or [respondent's] defense; and
evidentiary facts are those subsidiary facts required to prove the
ultimate facts."
Smith v. Smith, 336 N.C. 575, 579, 444 S.E.2d
420, 422 (1994) (citations omitted). "Ultimate facts are the final
resulting effect reached by processes of logical reasoning from the
evidentiary facts."
In re Anderson, 151 N.C. App. 94, 97, 564
S.E.2d 599, 602 (2002) (citation omitted).
See also Williamson v.Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000)
(noting that "mere recitations of the evidence" are not the
ultimate findings required, and "do not reflect the processes of
logical reasoning" required) (citation omitted);
Appalachian Poster
Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d
705, 707 (1988) (holding that the trial court failed to find the
"ultimate facts" where "[f]or the greater part, [the findings of
fact] are only recitations of the evidence. They merely set forth,
sometimes verbatim, the contents of letters exchanged between
petitioner and respondent."). The trial court is required to make
the determination of the ultimate findings of fact in its order.
Shore v. Norfolk National Bank of Commerce, 207 N.C. 798, 799, 178
S.E. 572, 572-73 (1935) (holding that the trial court must
specifically find the facts and cannot simply "indicate from what
source the facts may be gleaned");
In re Harton, ___ N.C. App. ___,
___, 577 S.E.2d 334, 337 (2003) ("When a trial court is required to
make findings of fact, it must make the findings of fact
specially.") (citation omitted).
The findings of fact as stated by the trial court in the
present case do not meet these requirements. As shown above, both
the 1 November 2001 and 31 December 2001 orders listed three
findings of fact: (1) a
statement concerning who was present at
the hearing; (2) a statement that DSS made a report and that the
trial court incorporated that report as the findings of fact; and
(3) a statement that the juvenile's guardian ad litem made a report
and that the trial court incorporated that report as the findingsof fact. Respondent argues that, while the trial court can
consider written reports in making its decision, the trial court
must still make findings of fact based on the credible evidence in
these reports if it chooses to rely on them. We agree.
The use of reports by the trial court in a disposition or a
review is clearly permitted by our statutes.
See N.C. Gen. Stat.
§ 7B-901 (2001);
In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636,
638 (1983),
modified and affirmed, 311 N.C. 586, 319 S.E.2d 567
(1984). However
, in no way does this authority allow a trial court
to delegate its factfinding duty.
In re Harton, ___ N.C. App. at
___, 577 S.E.2d at 337 (citation omitted). The trial court's
conclusions in the 31 December 2001 order cannot be supported
solely by the incorporation of the reports by DSS and the
juvenile's guardian ad litem. While the trial court can use these
reports in making its findings of fact, it is not appropriate for
the trial court to broadly incorporate these written reports as the
findings of fact. We must remand this case to the trial court for
appropriate findings consistent with the requirements of N.C.G.S.
§ 7B-906.
Respondent also argues the trial court erred in not entering
a written order from the 1 November 2001 hearing within thirty days
as required by N.C.G.S. § 7B-906(d). Petitioner points out that
the portion of the statute directing that the order resulting from
a review hearing be entered no later than thirty days from the
hearing did not become effective until 1 January 2002, after the
date of the review hearing at issue.
Compare N.C.G.S. § 7B-906(d)(2001),
with N.C.G.S. § 7B-906(d) (repealed). Therefore, even
though the written order was not entered until 31 December 2001,
the thirty-day requirement did not apply in the present case.
II.
Respondent also argues the trial court erred in its
conclusions that petitioner made reasonable efforts to prevent the
need for placement of the juvenile and that further efforts at
reunification would be futile. "A 'conclusion of law' is the
court's statement of the law which is determinative of the matter
at issue [and] . . . must be based on the facts found by the court
. . . ."
Montgomery, 32 N.C. App. at 157, 231 S.E.2d at 28-29
(citations omitted). We are unable to review this assignment of
error without appropriate findings of fact by the trial court. We
remand to the trial court for appropriate findings of fact.
Remanded.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1