Appeal by respondent-grandmother from order entered 4 December
2002 by Judge Edward A. Pone in Cumberland County District Court.
Heard in the Court of Appeals 24 August 2004.
David Kennedy, Esquire, for petitioner-appellee Cumberland
County Department of Social Services.
Elizabeth A. Hansen, Esquire, for respondent-appellant
grandmother.
TIMMONS-GOODSON, Judge.
Respondent appeals the trial court order continuing physical
custody of her minor granddaughter with Cumberland County
Department of Social Services (“CCDSS”), continuing the permanent
plan of guardianship, and relieving CCDSS of its reunification
efforts with respondent. For the reasons discussed herein, we
affirm the trial court order.
The facts and procedural history pertinent to the instant
appeal are as follows: Respondent is the maternal grandmother of
a minor child, Molly.
(See footnote 1)
On 31 January 2002, CCDSS filed a petition
(“the petition”) alleging that Molly was an abused and neglected
juvenile as defined by N.C. Gen. Stat. § 7B-101(1) and (15). According to the petition, respondent had been given custody of
Molly in 1992 because Molly's mother, Shelly,
(See footnote 2)
was incapable of
caring for Molly. The petition further alleged in pertinent part:
3. [Shelly] had been sexually abused by
relatives and caretakers when she was a child
and in the custody of her mother,
[respondent].
4. [Respondent] was non[-]supportive of
[Shelly's] disclosures of sexual abuse.
5. On 1-25-93, a sexual abuse referral was
made alleging that [respondent's] boyfriend
was sexually abusing [Molly]. The named
perpetrator had also sexually molested
[Shelly] when she was a minor.
6. During visitation with her mother and
stepfather, [Shelly] and [Joe],
(See footnote 3)
[Molly] was in
the same bed with them while they were having
sexual relations.
7. On 6-29-00 [respondent] agreed not to
allow [Molly] to be left alone with [Shelly]
and [Joe].
8. On 10-25-00, Sexual Abuse was
substantiated because [Molly] was sexually
molested by [Shelly's] boyfriend [Donald].
(See footnote 4)
9. [Respondent] was not supportive of
[Molly's] disclosure off [sic] sexual abuse by
[Donald].
10. [Respondent] was the ex-girlfriend of
[Donald].
11. [Respondent] again agreed to and signed a
Protection Plan that [Molly] would have onlysupervised visits with her mother at the home
of [respondent].
12. [Respondent] allowed [Molly] to continue
to visit [Shelly] and [Joe] unsupervised
usually every other weekend.
13. [Joe] posed [Molly] topless and took
pictures of her.
14. [Shelly] encouraged [Molly] to pose for
these pictures even though the child did not
want to do it.
15. [Respondent] did not believe that [Joe]
had taken pictures of [Molly].
Following the filing of the petition, the trial court issued
an order for non-secure custody on 31 January 2002. On 4 February
2002, the trial court found the grounds alleged in the petition to
be true and ordered that legal and physical custody of Molly be
with CCDSS for placement in foster care or with suitable relatives.
Following a child planning conference held on 11 February 2002, the
trial court ordered that respondent be granted supervised
visitation with Molly at CCDSS but that Shelly and Joe have no
contact with Molly. The trial court then scheduled a non-secure
custody hearing for 4 March 2002.
On 4 March 2002, the trial court reviewed its previous
findings and conclusions and ordered that the 11 February 2002
visitation plan remain in effect and that physical custody remain
with CCDSS for placement in foster care or with relatives. The
trial court also ordered that the matter be continued until a 2
April 2002 non-secure custody hearing.
On 2 April 2002, the trial court found that respondent “had
failed to take steps to protect” Molly, that respondent was not “afit or proper person to have care, custody or control of” Molly,
and that “based on the underlying file and this file the likelihood
that conditions will be alleviated is extremely unlikely.” The
trial court thereafter concluded that it was in Molly's best
interests and welfare to continue custody with CCDSS. In an order
filed 23 April 2002, the trial court ordered as follows:
1. That legal and physical custody shall be
with the CCDSS for placement in foster care or
with suitable relatives, if there are any
identified.
2. That the Court will authorize out of state
home study, but reserves ruling for results.
3. That the no contact order shall remain in
effect with [Shelly], [Joe], and [respondent]
pending further orders of this Court.
4. That [Molly] shall be enrolled in
counseling.
5. That [respondent] shall complete a
psychological evaluation and parenting
assessment.
6. This matter shall be continued until
7/10/02 for Review.
Following subsequent court review, in an order filed 2 August
2002, the trial court ordered that the permanent plan for Molly
should be guardianship or placement with relatives, and therefore
legal and physical custody of Molly should remain with CCDSS for
placement in foster care. The trial court then continued the
matter until subsequent court review scheduled for 3 October 2002.
On 31 October 2002, the trial court completed the court review
contemplated in the 2 August 2002 order. In an order filed 4
December 2002, the trial court incorporated its previous findingsof fact as set forth in the adjudication and disposition order and
non-secure custody orders. The trial court further found in
pertinent part:
4. [Molly] was Adjudicated Neglected and
Abused on 4/2/02 and legal and physical
custody remained with CCDSS.
. . . .
6. That [Molly] continues to do well in
foster care.
. . . .
9. That the Parenting Assessment done by
Diane Jackson on [respondent], including the
Summary and Recommendations[,] have been
reviewed in great detail. That the findings
indicate that [respondent's] lack of judgment
would continue to be a concern if the minor
child were returned to her care.
10. That there is no evidence to change the
Court's previous findings nor is it likely to
change in the foreseeable future. . . .
Based upon these findings, the trial court concluded as follows:
1. Reasonable efforts are being made to
reunite [Molly] with her family, or provide a
permanent plan for her care.
2. Return of [Molly] to the parents[']
custody could be contrary to the welfare of
[Molly].
3. That in the best interest of [Molly],
legal and physical custody shall remain with
CCDSS for placement in foster care or with
suitable identifiable relatives.
Based upon its findings of fact and conclusions of law, the trial
court ordered in pertinent part:
1. That legal and physical custody shall be
with CCDSS for placement in foster care or
with suitable identifiable relatives.
2. That the permanent plan remains
guardianship with [a] relative or other court
approved caretaker.
. . . .
4. That there shall be no visitation or
contact between [Molly] and the respondents
that are here in North Carolina.
5. That CCDSS is relieved of reunification
efforts.
It is from this order that respondent appeals.
The only issue on appeal is whether the trial court erred by
permitting CCDSS to cease its efforts to reunify Molly with
respondent. Respondent argues that the trial court's findings of
fact are not supported by competent evidence and that the trial
court's conclusions of law are not supported by its findings of
fact. We disagree.
We note initially that respondent's brief contains arguments
supporting only three of the original four assignments of error.
Pursuant to N.C.R. App. P. 28(b)(6) (2004), the omitted assignment
of error is deemed abandoned. Therefore, we limit our present
review to those assignments of error properly preserved by
respondent for appeal.
We further note that, in its brief, CCDSS challenges the
propriety of the instant appeal, arguing that respondent's appeal
of a court review hearing is interlocutory and should be dismissed.
For the reasons discussed below, we are not convinced by this
argument, and therefore we review the merits of the appeal.
N.C. Gen. Stat. § 7B-1001 (2003) provides that “review of anyfinal order of the court in a juvenile matter” shall be before the
Court of Appeals. The statute further provides in pertinent part:
A final order shall include:
. . . .
(3) Any order of disposition after
an adjudication that a juvenile
is abused, neglected, or
dependent;
Id. This Court has previously held that “[a]n order that changes
the permanency plan [from reunification with the mother to
termination of parental rights] is a dispositional order that fits
squarely within the statutory language of section 7B-1001.”
In re
Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). We
have also previously reviewed a decision by a trial court relieving
DSS of its reunification efforts following a permanency planning
review,
see In re Everett, 161 N.C. App. 475, 588 S.E.2d 579
(2003), and we have recently reviewed a decision by the trial court
relieving DSS of its reunification efforts following a regularly
scheduled court review.
In re H.W., ___ N.C. App. ___, 594 S.E.2d
211,
disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
In the instant case, as in
H.W., respondent appeals the trial
court's order relieving CCDSS of its reunification efforts
following a regularly scheduled court review. We note that N.C.
Gen. Stat. § 7B-507(b) (2003) expressly authorizes cessation of
reunification efforts in “a review order.” Thus, in light of the
statutory authorization provided to the trial courts as well as the
relevant case law, we conclude that the trial court's decision to
relieve CCDSS of its reunification efforts
in the instant casecorresponds to those types of decisions contemplated by § 7B-1001's
definition of a “final order.” Therefore, we decline to dismiss
respondent's appeal as interlocutory, and we choose instead to
examine the merits of respondent's appeal
.
N.C. Gen. Stat. § 7B-507(b) provides as follows:
In any order placing a juvenile in the custody
or placement responsibility of a county
department of social services, whether an
order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if 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.
“All dispositional orders of the trial court after abuse,
neglect and dependency hearings must contain findings of fact based
upon the credible evidence presented at the hearing.”
Weiler, 158N.C. App. at 477, 581 S.E.2d at 137. “If the trial court's
findings of fact are supported by competent evidence, they are
conclusive on appeal.”
Id. “When a trial court is required to
make findings of fact, it must make the findings of fact
specially.”
In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334,
337 (2003). Furthermore, “[t]he 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.”
Id. (citation omitted).
In
Weiler, the trial court “based its decision [to relieve DSS
of its reunification efforts] primarily on respondent's 'continued
obstructionist attitude and refusal to accept responsibility for
her children's behaviors, coupled with her repetitive switching of
jobs and residence.'” 158 N.C. App. at 480, 581 S.E.2d at 138.
However, on appeal, this Court noted that the trial court “made no
statutory findings that reunification efforts would be futile or
that the health and safety of the children were inconsistent with
such efforts as required by section 7B-507(b).”
Id. Thus, we
concluded that, “in light of its failure to make the findings
required by statute, the court's findings do not support its
conclusions of law that efforts to reunify respondent with her
children should cease and that the 'appropriate permanent plan for
the juveniles is pursuit of termination of parental rights and
adoption.'”
Id.
As detailed above, in the order relieving CCDSS of its
reunification efforts in the instant case, the trial court foundthat Molly “was Adjudicated Neglected and Abused on 4/2/02 and
legal and physical custody remained with CCDSS.” The trial court
also found that respondent's “lack of judgment would continue to be
a concern if [Molly] were returned to her care,” and that “there is
no evidence to change the Court's previous findings nor is it
likely to change in the foreseeable future.” The trial court
further found that it was in Molly's best interests to require that
“legal and physical custody shall remain with CCDSS for placement
in foster care or with suitable identifiable relatives.” The trial
court also referenced its previous findings of fact regarding
respondent's fitness and propriety to have care, custody, and
control of Molly. Specifically, the trial court referenced the
adjudication and disposition order filed 23 April 2003, in which
the trial court found that respondent was not a “fit or proper
person to have care, custody or control of [Molly],” and the trial
court subsequently concluded that “[n]o reasonable means were
available to protect [Molly], short of out-of-home placement,
because continuation in the custody of [respondent] could be
contrary to the welfare of [Molly], and therefore the lack of
services was reasonable.”
The trial court's previous findings regarding respondent's
suitability to care for Molly, coupled with the trial court's
continuing “concern” regarding Molly's placement with respondent,
indicates that further reunification efforts would be futile in the
instant case. The trial court specifically found that no evidence
existed to change its previous determinations, and that “change inthe foreseeable future” was unlikely. After hearing arguments from
the parties and reviewing and incorporating its previous findings
of fact, the trial court made findings of fact from the bench and
referred to a recent parenting assessment which, according to the
trial court, indicated “that [respondent's] social judgment [i]s of
great concern and future victimizations continue to be possible
should [respondent] be returned as the primary caretaker.” Each of
these findings support a determination that further reunification
efforts would be futile as well as inconsistent with Molly's health
and safety. Thus, after careful examination of the record before
this Court, we conclude that competent evidence supports the trial
court's findings of fact, and that the trial court made sufficient
findings to support its decision to relieve CCDSS of its
reunification efforts. Therefore, we hold that the trial court did
not err in relieving CCDSS of its reunification efforts in the
instant case.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
Footnote: 1