An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-75


Filed: 20 January 2004

IN RE LUTZ                        Catawba County          &nb sp;                 
                                No. 97 J 277, 278


    Appeal by grandmother from judgment entered 7 May 2002 by Judge C. Thomas Edwards in Superior Court, Catawba County. Heard in the Court of Appeals 28 October 2003.

    M. Victoria Jayne, for appellant.

    Regina M. Taylor, for appellee.

    WYNN, Judge.

    By this appeal, Sonya Lutz, paternal grandmother of two minor children, presents the following issues for our consideration: (I) Did the trial court have sufficient evidence to modify its order of reunification with Mrs. Lutz to a plan of adoption, and order a cessation of reunification efforts; (II) Was the trial court's permanent plan of adoption consistent with North Carolina law; and (III) Were the trial court's orders ceasing reunification, ordering a plan of adoption and denying court-appointed counsel consistent with public policy and state and federal law. After carefulreview, we vacate the order below.
    The record on appeal shows that paternal grandparents, Donald and Sonya Lutz, raised their grandchildren, a female child born in 1994 and a male child born in 1997, since infancy. The Lutzes were awarded custody of the children in 1997. The record further shows that the biological mother, Kimberly Lutz, relinquished her rights to the children in August 2000 and is not a party to the subject proceeding. Likewise, the trial court found that the biological father, Daniel Lutz, “has had little or no contact nor has he participated in rearing the juveniles since 1997.”
    The present matter arose upon the removal of the children from their grandparent's home in July 2000 based upon allegations of juvenile neglect. Ultimately, the trial court determined that the grandparents “allowed the children to frequent an unsafe place--the basement of the Lutz' home--where they were exposed to urination by the grandfather in their presence, as well as large ladders and painting equipment in a cluttered and unsafe environment.”
    Thereafter, the trial court placed the children with the Catawba County Department of Social Services (“DSS”). Mrs. Lutz undertook efforts to regain custody of the minor children by submitting to psychological evaluations and attending “Nurturing and Non-offending Parenting Classes”; she also cleaned and locked her basement.     While Mrs. Lutz sought to improve the safety of her home and her parenting abilities, Donald Lutz was incarcerated for sexually abusing a minor unrelated to this case. Mrs. Lutz and her daughter, Vicki Lowdermilk, attended his trial, and as Mrs. Lutz became convinced of her husband's guilt, her relationship with her daughter improved. Shocked that she “lived with a[n] [abusive] man and didn't know,” Mrs. Lutz told the juvenile court judge of her intention to divorce Mr. Lutz as soon as she could afford it, notwithstanding the fact that Mr. Lutz was sentenced to a minimum of sixty years in prison.
    The trial court found Mrs. Lutz's best efforts and intentions insufficient. In its 18 October 2001 disposition order, the trial court concluded that “Catawba County Department of Social Services has made reasonable efforts to reunite the minor children with their family, but such reunification is not in the minor children's best interests.” The trial court confirmed this conclusion in a review order dated 2 January 2002. In a later review order, the trial court rejected Mrs. Lutz's request for court-appointed counsel on the grounds that “only a parent is entitled to a court- appointed attorney in a juvenile proceeding.”
    Finally, regarding the 7 May 2002 Permanency Planning Order at issue, the trial court made several findings of fact relevant to our review:        
        5.    That the minor children...have very special needs;

                            . . .

        7.    That Sonya Lutz and Vicki Lowdermilk have a storied history continuing through March 12, 2002, Vicki Lowdermilk having asserted that Donald Lutz molested her as a minor;

        8.    That the Catawba County Department of Social Services conduct[ed] home studies on both Sonya Lutz and Vicki Lowdermilk and could not recommend placement with either;

        9.    That Sonya Lutz appears to greatly care for the minor children;

        10.    That in consideration of the observation and recommendations of the Court, the Catawba County Department of Social Services, and the Guardian ad Litem the possibility of returning the minor children to the long-term care of Sonya Lutz is not in the best interest of the minor children;

                            . . .        

        12.    That the permanent plan for the minor children shall be adoption.

The trial court concluded that “the Catawba County Department of Social Services has exercised reasonable efforts towards reunification of the minor children . . . but reunification is not in the best interests of the minor children at this time.” [T. 20] From this Order, Mrs. Lutz appeals.
    By her first argument, Mrs. Lutz contends the trial court's order is not supported by sufficient evidence and did not comport with North Carolina law. We agree.     “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. In achieving this goal, the court may direct DSS to cease reunification efforts with a parent. However, one of the essential aims, if not the essential aim, of . . . [the hearing] is to reunite the parent(s) and the child, after the child has been taken from the custody of the parent(s). Accordingly, the court's authority to order the cessation of reunification efforts between a parent and a child is limited to where 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;
        (2) A court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances as defined in G.S. 7B-101;
        (3) A court of competent jurisdiction has terminated involuntarily the parental rights of the parent to another child of the parent; or
        (4) A court of competent jurisdiction has determined that: the parent has committed murder or voluntary manslaughter of another child of the parent; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent; or has committed a felony assault resulting in serious bodily injury to the child or another child of the parent.”

In re Everett v. Everett, ____ N.C. App. ___, ____ S.E.2d ___(filed 2 Dec. 2003)(COA03-316). In the case sub judice, none of the court's findings addressed the four reasons required to cease reunification efforts between Mrs. Lutz and her grandchildren.
    Moreover, the trial court failed to comply with the requirements of N.C. Gen. Stat. § 7B-907. Pursuant to N.C. Gen. Stat. § 7B-907(b), if at the conclusion of the permanency planning hearing, the minor children are not returned home, the trial court shall consider the following enumerated factors and make written findings of fact regarding those that are relevant:
        I 1.      Whether it is possible for the juvenile to be returned home immediately within the next six months, and if not, why it is not in the juvenile's best interests to return home;

        II 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;

        III 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;

        IV 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;

        V 5.      Whether the county department of social services has since the initial permanencyplanning hearing made reasonable efforts to implement the permanent plan for the juvenile;

        VI 6.      Any other criteria the court deems necessary.

(2001) (emphasis supplied). In the case sub judice, the minor grandchildren were not returned home and the trial court failed to make written findings of fact explaining why they were not returned to the custody of Mrs. Lutz, in violation of N. C. G. S. § 7B- 907(b).
    Furthermore, the trial court's written findings of fact are contrary to credible evidence in the record. “All dispositional orders of the trial court in abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing.” In re Eckard, 144 N.C. App. 187, 197, 547 S.E.2d 835, 841 (2001). In this case, while the court found the children have special needs, it did not find that Mrs. Lutz was incapable of meeting those needs. In fact, the evidence suggests that Mrs. Lutz was capable of meeting the children's special needs: she enrolled her granddaughter in a special education class and arranged for tutoring and was well aware of her grandson's serious developmental disabilities prior to DSS's intervention.
    Likewise, while the trial court found that Mrs. Lutz and her daughter have had a strained relationship in the past, it failed toexplain why this fact might interfere with the juvenile's health, safety and need for a permanent home. To the contrary, the fact that Ms. Lowdermilk (1) is “getting closer” to her mother, (2) is also attending parenting classes, and (3) states she is “committed to working with [her] mother to provide for the children,” all suggest her involvement with the subject children works to improve their health and safety.
    In Findings of Fact 8 and 10, the trial court indicated that DSS conducted a home study and neither DSS nor the Guardian ad Litem could recommend placement with Mrs. Lutz. However, these findings do not sufficiently support the trial court's conclusions of law. See In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (“When a trial court is required to make findings of fact, it must make the findings specially . . . The 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.”) (citations omitted).
    Our review of the record revealed that DSS's home study of Mrs. Lutz and Ms. Lowdermilk concluded the two had relatively low IQS. However, this Court has refused to allow low intelligence to justify removal of custody. See In re Everett v. Everett, ___ N.C. App. ___, ___ S.E.2d ___ (filed 2 December 2003)(COA03-316). Similarly, we have found poverty and lack of employment insufficient justifications for terminating parental rights. See N.C. Gen. Stat. §§ 7B-111(a)(2) (stating “no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of poverty.”); In re Nesbitt, 147 N.C. App. 349, 359, 555 S.E.2d 659, 665-66 (2001).
    Moreover, the findings of fact do not support the conclusions of law. The trial court concluded as a matter of law that “[t]he Catawba County Department of Social Services has exercised reasonable efforts toward reunification of the minor children with their father and paternal relatives, but reunification is not in the best interests of the children at this time.” However, the transcript reveals DSS's reunification efforts were meager at best. Mrs. Lutz was anxious to attend two parenting classes but was unable to do so because the classes were scheduled for the same time and the agency refused to accommodate her. Once, immediately prior to allowing Mrs. Lutz to visit with her grandchildren at DSS facilities, two DSS employees announced that the agency was actively seeking permanent adoption and threatened to have Mrs. Lutz's visitation revoked if she said anything about it to her granddaughter. The DSS employees made the threat in Vicki Lowdermilk's presence; Ms. Lowdermilk corroborated Mrs. Lutz's testimony about the interaction.     Mrs. Lutz's efforts to regain custody over her grandchildren stand in stark contrast to DSS's inadequate attempts at reunification. In addition to cleaning her home and taking nurturing classes, the record shows that Mrs. Lutz had matured by recognizing her past misjudgments about her husband and daughter. Significantly, in a statement to the trial court, Mrs. Lutz pled for the chance to rear her grandchildren despite adversity:
        For the last seven years, DSS was happy with me to raise those grandchildren without even checking on them . . . I raised the children on $530 a month for seven months and DSS wouldn't even give me food stamps for them. And then they tell me they made a mistake and I was supposed to get food stamps. Well, it's a little late now. That's why I was out working trying to support them. And DSS is saying that I abused and neglected them and dependency when I make $600 a month. I didn't know it was a disgrace to be poor, or a crime and to love your grandyoung'uns.

    In sum, we reverse the order of the trial court as violative of N. C. G. S. §§ 7B-507 and 7B-907 because the trial court failed to make the required findings of fact; and the findings of fact rendered by the trial court were not supported by credible evidence and did not support the conclusions of law that reunification efforts should cease. As we have concluded the trial court erred in rendering the order below, we need not address Mrs. Lutz's remaining arguments.    Reversed.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***