IN THE MATTER OF
Orange County
C.K.M. No. 03 J 45-46
S.M.
James M. Bell, for respondent-appellant.
No brief for petitioner-appellee.
MARTIN, Chief Judge.
Respondent mother, Mary Smith, appeals from a custody order
entered 1 May 2003 placing the custody of her minor children with
the Orange County Department of Social Services and finding her in
willful contempt of court. Initially, we note that petitioner,
Orange County Department of Social Services, has filed no
appellee's brief, despite obtaining an extension of time in which
to do so.
On 25 April 2003, the district court, believing the children
were in imminent danger, entered a handwritten order directing DSS
and the Orange County Sheriff's Department to take C.K.M. and S.M.
into temporary non-secure custody. When DSS and law enforcement
arrived at respondent's residence, neither respondent nor the
children were at home. On 1 May 2003, at the non-secure custody hearing, the district
court was advised that the children were in Virginia with their
father on a previously scheduled visit. When asked where the
children were, respondent replied that they were in Virginia
although she did not know exactly where. At the urging of DSS,
the court held respondent in contempt of the non-secure custody
order until she revealed the children's location. The court
directed counsel for DSS to draw up an order stating the facts on
which the Department is basing its strong belief that [respondent]
knows where her children are. And that she also colluded in
removing them from the jurisdiction of the court.
The order, with findings of fact and conclusions of law,
placed the children in the custody of Orange County DSS. In
addition, the court placed respondent in custody for contempt of
the 25 April 2003 non-secure custody order, and provided for
respondent's release upon condition she deliver custody of the
children to petitioner.
(d) If the court determines that the juvenile . . .
should continue in custody, the court shall issue an
order to that effect. The order shall be in writing with
appropriate findings of fact and signed and entered
within 30 days of the completion of the hearing. The
findings of fact shall include the evidence relied upon
in reaching the decision and purposes which continued
custody is to achieve.
When a trial court is required to make findings of fact, it 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. In re Harton,
156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations
omitted). The 1 May 2003 non-secure custody hearing was an informal
conversation between the court, counsel for respondent, counsel for
DSS and respondent regarding the location of the children. The
court did not offer an opportunity to provide witnesses or evidence
and no evidence or testimony was introduced by either party.
At the conclusion of the hearing, the trial court asked
petitioner to draw up an order stating the facts on which the
Department is basing its strong belief that she knows where her
children are. None of the information in findings of fact
numbered 3 through 12 and 14 through 16 was discussed in the
hearing. Instead, it appears the information was taken from the
attachments to the juvenile petitions for neglect. The court's
factual findings and conclusions of law were not based upon
evidence. Accordingly, we reverse the district court's order.
Reversed.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).
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