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).
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