1. Termination of Parental Rights_permanency planning order_findings insufficient
A permanency planning order relieving social services of reunification and visitation
efforts was remanded for further findings where the trial court entered a cursory two page order
which was insufficient to allow meaningful appellate review.
2. Termination of Parental Rights_cessation of reunification efforts_notice_jurisdiction
The trial court had jurisdiction to order that reunification efforts cease despite petitioner
not filing a motion requesting relief from those efforts. The court obtained jurisdiction when
petitioner filed a petition alleging that the minors were neglected, and that jurisdiction continues
until terminated by the court or the juveniles become emancipated.
3. Appeal and Error_ failure to object--lack of notice
Respondents waived any objection to improper notice of a permanency planning order for
neglected juveniles when they and their attorneys appeared and participated without objection.
Hunton & Williams, by Jason S. Thomas, for petitioner-appellee
Guardian Ad Litem.
John. F. Campbell, for petitioner-appellee Cumberland County
Department of Social Services.
Katharine Chester for respondents-appellants.
STEELMAN, Judge.
Respondents appeal the district court's Permanency Planning
Order relieving Cumberland County Department of Social Services
(DSS) of reunification and visitation efforts with the parents. Respondents are the parents of three boys, now ages fifteen,
eleven, and four. Respondent-father receives Social Security
Disability due to several strokes he had in 1999 and is unable to
work. Respondent-mother is also unemployed. On 15 March 2001, DSS
filed a juvenile petition regarding the children, alleging they were
neglected, in that they: (1) lived in unsanitary and unsafe
conditions; (2) had poor attendance at school; (3) had very poor
personal hygiene; (4) received inadequate medical care; and (5) the
parents were unable to manage their finances in a responsible way.
On 17 April 2001, the trial judge issued orders for non-secure
custody of the three children, placing their custody with DSS.
Additional orders for non-secure custody were issued on 4 May 2001
and 14 June 2001, finding that grounds existed to continue the non-
secure custody order. On 12 June 2001, the trial court conducted
the adjudication and dispositional hearings, where DSS moved to
amend the petition to include allegations of dependency. Since
respondents stipulated to dependency, DSS took a voluntary dismissal
on the neglect allegations. The court continued the matter for
review. On 15 November 2001, the trial court conducted a review
hearing pursuant to N.C. Gen. Stat. § 7B-906. The trial court found
that reasonable efforts were being made to reunite the children with
their family, or to provide a permanent plan for the children, but
that the return of the children to the parent's custody would be
contrary to the welfare of the minors. While legal custody remained
with DSS, physical custody of the two youngest boys was placed with
relatives of respondents and the oldest boy was placed in foster
care. The parents were allowed visitation with the children. Thecourt conducted periodic permanency planning hearings on 20 February
2002, 20 March 2002, 12 June 2002, and 22 August 2002.
At the 22 August 2002 permanency planing review, the court
relieved DSS from its reunification and visitation efforts as to the
minor children. Respondents appeal.
[1] In respondents' first assignment of error, they contend the
trial court's findings of fact are not supported by competent
evidence and, in turn, the findings of fact do not support the
conclusions of law. Our analysis of this issue also includes
respondents' second assignment of error, in which they assert it was
error for the trial court to make a finding of fact which merely
incorporated reports of others.
“In all actions tried upon the facts without a jury . . . the
court shall find the facts specifically and state separately its
conclusions of law thereon . . . .” N.C. Gen. Stat. § 1A-1, Rule
52(a)(1) (2003). Thus, the trial court must, through “processes of
logical reasoning,” based on the evidentiary facts before it, “find
the ultimate facts essential to support the conclusions of law.”
In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003).
The resulting findings of fact must be “sufficiently specific to
enable an appellate court to review the decision and test the
correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451,
290 S.E.2d 653, 657 (1982). Where the trial court's findings are
supported by competent evidence, they are binding on appeal, even
if there is evidence which would support a finding to the contrary.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003).
Here, the trial court's findings are not “specific ultimate
facts,” which are sufficient for this Court to determine that it was
proper for the lower court to allow DSS to cease reunification
efforts. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602
(2002) (noting that “ultimate facts” are the resulting effect
reached by the court's application of logical reasoning to the
evidentiary facts). In this case, the trial court entered a cursory
two page order. It did not incorporate any prior orders or findings
of fact from those orders. Instead, the trial court incorporated
a court report from DSS and a mental health report on the oldest boy
as a finding of fact. In juvenile proceedings, it is permissible
for trial courts to consider all written reports and materials
submitted in connection with those proceedings. In re Ivey, 156
N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003); N.C. Gen. Stat. §
7B-907(b) (2003). Despite this authority, the trial court may not
delegate its fact finding duty. Harton, 156 N.C. App. at 660, 577
S.E.2d at 337. Consequently, the trial court should not broadly
incorporate these written reports from outside sources as its
findings of fact.
Furthermore, the trial court's findings of fact are
insufficient to allow meaningful appellate review, in that they lack
the findings required by N.C. Gen. Stat. § 7B-907(b) and N.C. Gen.
Stat. § 7B-507(b)(2003). N.C. Gen. Stat. § 7B-907(b) states that
at the conclusion of the hearing, if the juvenile is not to be
returned home, the court must consider the factors listed and make
relevant findings of fact. These factors include:
(1) Whether it is possible for the juvenile to
be returned home immediately or within the nextsix 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.
N.C. Gen. Stat. § 7b-907(b)(2003) (emphasis added).
Here, the trial court found that “it is not possible for the
minor to return home at this time.” While it is true that the court
is not expressly required to make every finding listed, it must
still make those findings that are relevant to the permanency plans
being developed for the children. Arguably the trial court met the
criteria of numbers (2) and (5), however, it failed to meet the
statutory requirements of section (1) as it neglected to state why
it was not possible for the minors to be returned home. See In re
Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003)
(reversing the trial court's order since it failed to explain why
it was not in the child's best interest to be returned to his mother
and because it did not make the findings required by section
7B-907(b)). In this case, the findings of fact do not sufficiently
comply with the requirements of this statute. Furthermore, N.C.Gen. Stat. § 7B-907(c) requires that at the conclusion of a
permanency planning hearing, “the judge shall make specific findings
as to the best plan of care to achieve a safe, permanent home for
the juvenile . . . .” N.C. Gen. Stat. § 7B-907(c)(2003). The court
made no findings addressing this requirement.
The only finding which gives any indication as to why DSS
should cease reunification efforts is Finding of Fact No. 6, which
states “[t]he respondent parents have had no substantial change in
their judgment making and concepts to adequately take care of the
children.” This finding alone will not support the trial court's
order, as the remaining findings were either more properly
classified as conclusions of law or were a mere recitation of the
status of the case, i.e. the minors were adjudicated dependant and
the children's current placement was with relatives or foster care.
Since the trial court's findings are not sufficiently specific to
allow this Court to review its decision and determine whether the
judgment was correct, and since the findings also fail to comply
with the statutory requirements, we remand this matter to the
district court to make appropriate findings of fact.
[2] In light of our holding on respondents' first two
assignments of error, it is unnecessary to address respondents'
third assignment of error. However, we do address respondents'
final assignment of error since it raises an issue as to the trial
court's jurisdiction. Respondents contend that since petitioner did
not file a motion requesting relief from reunification efforts, the
trial court was without jurisdiction to cease reunification efforts. The order which is the subject of this appeal was entered after
a permanency planning hearing conducted pursuant to N.C. Gen. Stat.
§ 7B-907. N.C. Gen. Stat. § 7B-907(a) provides that a permanency
planning hearing shall be held within twelve months after the
initial order removing custody, with subsequent planning hearings
to be held at least every six months. N.C. Gen. Stat. § 7B-907(a)
(2003). The purpose of the hearings is to “review the progress made
in finalizing the permanent plan for the juvenile, or if necessary,
to make a new permanent plan for the juvenile.” Id. (emphasis
added). This vests the trial court with the authority to modify its
permanency plan for the children with respect to any aspect of that
plan, including reunification or visitation. By its nature, the
subsequent planning hearings do not require petitioner to file a new
petition for each subsequent hearing, as the statute mandates that
the lower court hold such a hearing at least every six months.
Furthermore, our Supreme Court has held that nothing in the juvenile
code, N.C. Gen. Stat. Ch. 7B, “precluded the trial court from
specifying in its order in this case that DSS 'may' cease
reconciliation efforts.” In re Brake, 347 N.C. 339, 340-41, 493
S.E.2d 418, 419-20 (1997).
N.C. Gen. Stat. § 7B-200(a) provides that “[t]he court has
exclusive, original jurisdiction over any case involving a juvenile
who is alleged to be abused, neglected, or dependent.” N.C. Gen.
Stat. § 7B-200(a) (2003). Once the court obtains jurisdiction over
a juvenile, that “jurisdiction shall continue until terminated by
order of the court or until the juvenile reaches the age of 18 years
or is otherwise emancipated . . . .” N.C. Gen. Stat. § 7B-201(2003). When petitioner filed its petition alleging the minors to
be neglected, the district court obtained jurisdiction over the
matter.
[3] By this same assignment of error, respondents contend they
did not receive notice of the permanency planning hearing as
required by N.C. Gen. Stat. § 7B-907(a) (requiring the clerk to give
fifteen days notice of the hearing to the parents). A party who is
entitled to notice of a hearing waives such notice where they attend
the hearing and participate in it without objecting to improper
notice. Anderson v. Anderson, 145 N.C. App. 453, 456, 550 S.E.2d
266, 269 (2001); Brandon v. Brandon, 10 N.C. App. 457, 460-61, 179
S.E.2d 177, 179-80 (1971). Here, respondents and their attorneys
were present at the hearing, they participated in the proceedings,
and no one objected to improper notice. Thus, respondents waived
any objection they might have had to improper notice. This
assignment of error is without merit.
For the reasons discussed herein, we reverse the trial court's
Permanency Planning Order and remand for proceedings consistent with
this opinion. It is within the trial court's discretion to allow
additional evidence prior to making findings of fact and conclusions
of law. See In re Anderson, 151 N.C. App. 94, 100, 564 S.E.2d 599,
603 (2002).
REVERSED AND REMANDED.
Judges WYNN and CALABRIA concur.
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