In the Matter of: H.H. & A.H., (03-1355) 06/15/2004

    On 13 February 2002, DSS filed a petition alleging that both H.H. and A.H. did not receive proper care, supervision, or discipline and that they live in an environment injurious to their welfare. DSS took non-secure custody of both children. The children were initially placed in foster care but were later placed in the home of David Jaynes (“Jaynes”), the biological father ofA.H. On 9 August 2002, the children were adjudicated neglected, and both children were placed in the custody of DSS with the authority to continue to place the children in Jaynes's home.
    Permanency planning hearings were held on 14 March 2003 and 8 May 2003. At both hearings, the trial court ordered custody of the children to remain with DSS and authorized DSS to continue the placement of the children in Jaynes's home. On 1 May 2003, respondent mother submitted to a drug test conducted by a social worker. The results of the test showed positive for cocaine, benzoyleogonine, and cocaethylene. The results of the test were not available at the date of the 8 May 2003 hearing.
    One month prior to this test, respondent mother admitted to a social worker that she was using drugs on a daily basis. The social worker recommended drug treatment to respondent mother and offered to take her to the mental health clinic, but respondent mother refused. The social worker did not hear from respondent mother again until 9 June 2003. Prior to 9 June 2003, respondent mother had not visited or requested a visit with her children for more than one month. On numerous occasions, both children informed DSS that they were scared of their mother and that they did not want to have unsupervised visits with her because of her actions. The children told DSS that at times, respondent mother became very upset, yelled and screamed at social workers, and threatened to take the children and leave. The children also stated that during one visit, respondent mother began hitting their little brother.
    On 26 June 2003, a third permanency planning hearing was held. Respondent mother was not present at this hearing. The trial court ordered that DSS be released of efforts to reunify respondent mother with her children. Respondent mother appeals.

Respondent mother contends that there is insufficient proof that she was served with notice of the 26 June 2003 permanency planning hearing. She contends that the record does not “affirmatively reflect that [respondent mother] was properly served with notice . . . .” We disagree.
N.C. Gen. Stat. § 7B-907(a) (2003) states that once DSS makes a timely request of the clerk of court to calendar a permanency planning hearing, the clerk shall give fifteen (15) days notice of the hearing and its purpose to the parent. Here, the record shows that the clerk of court issued a notice of hearing to the respondent mother at her address on 10 June 2003 that the hearing would be held on 26 June 2003. While the record does not reflect the manner of service, the record shows a social worker testified that respondent mother did receive notice of the 26 June 2003 hearing. Further, although respondent mother argues that therecord does not adequately reflect proof of service, she does not argue that she did not receive actual notice. Respondent mother's assignment of error is overruled.

    Respondent mother also contends that the trial court's order ceasing reunification efforts with her and her children was not supported by competent evidence. She argues that the trial court “did little, if any, beyond receiving written reports and adopting these reports as the Court's findings of fact” in violation of N.C. Gen. Stat. § 7B-907(b). We disagree.
    N.C. Gen. Stat. § 7B-907(b) (2003) provides:
        At the conclusion of the [permanency planning hearing], if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:

        (1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interest 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.

At the 26 June 2003 permanency planning hearing, a social worker testified and identified her court report and its contents as accurate. The trial court admitted the report into evidence and incorporated the report by reference in its court order.
    The evidence presented at the hearing showed that the children had been living in the Jaynes's home since 21 February 2002, and experienced no problems adjusting to living with him as they had lived with him most of their lives. After the children were adjudicated neglected, respondent mother did not visit the children or contact DSS until more than one month later. Respondent mother requested a visit during this conversation but was subsequently arrested on 1 October 2002 and charged with writing worthless checks. The children stated on numerous occasions that they were scared to visit with respondent mother unsupervised.
    On 14 March 2003, respondent mother was granted two hours of unsupervised visitation. However, on 11 April 2003, respondent mother called the social worker and told her to take the children, as she was no longer going to try and get the children back. Respondent mother also stated that she was still using drugs and that she knew drugs would end up killing her. A subsequent drug test confirmed that respondent mother continued to use cocaine. Respondent mother refused drug treatment in May 2003. Respondentmother contacted DSS on 9 June 2003 to request a visit. Prior to this, respondent mother had not visited or requested a visit since 6 April 2003. Based on this evidence the trial court found:
        8. It does not appear possible for the minor children to be returned home immediately and it is not certain whether the children can be returned home within the next six months for the reasons set forth in the court report. Because of this, the Court further finds:

        (a) It remains in the best interest of the minor child, [A.H.], to continue to work with the respondent father [Jaynes] toward reunification with the child and to cease reunification efforts with regard to the respondent mother and said child. It is appropriate to look toward legal custody and guardianship of the minor child, [H.H], with David Jaynes for the reasons set forth in the prior court orders and the attached court report.

        (b) It does not appear to be in the best interest of the minor children that their adoption be pursued and the present permanent placement of the children appears to be meeting the children's needs.

        (c) The minor children are in an appropriate placement which should be continued for the reasons set forth in the court report.

        (d) The McDowell County Department of Social Services has made reasonable efforts to finalize a permanent plan for the minor children, as set forth in the court report.

After making these findings of fact, the trial court concluded that it was in the best interest of the children for DSS to cease reunification efforts with respondent mother and to explore whether placement with Jaynes would be in the children's best interest. These findings of fact and conclusions of law clearly address the criteria set forth in N.C. Gen. Stat. § 7B-907(b). Respondentmother's assignment of error is overruled.