IN THE MATTER OF: Cabarrus County
T.H and T.H., Nos. 02 J 217
Minor Children. 02 J 218
Kathleen Arundell Widelski, petitioner-appellee Cabarrus
County Department of Social Services; and Attorney Advocate
Victoria K. Bost for Guardian Ad Litem-appellee.
Carol Ann Bauer for respondent-appellant.
THORNBURG, Judge.
Respondent appeals from a permanency planning review order
entered on 6 November 2003.
T.H. and T.H. were born on 7 June 2002 to respondent-father
and their mother, who is not a party to this appeal. Because of
the mother's prior history with Cabarrus County Department of
Social Services (DSS), including the fact that other children had
previously been removed from her custody, as well as the fact that
she had mental limitations, a DSS social worker visited the
hospital on 8 June 2002, shortly after the twins' birth. DSS
allowed respondent and the mother to retain custody of the twins
because respondent agreed to be the primary caregiver to the twinsand because respondent's parents agreed to be safety responses when
the respondent was not able to watch the twins. After leaving the
hospital, respondent, the mother and the twins went to live with
respondent's parents in their home.
Around 11 November 2002, DSS received another report alleging
that the twins were being neglected, including allegations relating
to verbal abuse, an unclean living environment, concerns about the
twins' health and disputes between the twins' mother and their
paternal grandparents. A petition alleging neglect was filed on 27
November 2002. DSS was awarded nonsecure custody of the twins on
the same date, but continued placement of the twins with respondent
and his parents. However, after a home study was conducted and
discussions were held with the twins' pediatrician, the twins were
removed from respondent's home on 21 February 2003.
On 7 April 2003, the trial court adjudicated the twins
neglected and dependent. The trial court's dispositional order,
entered on 24 April 2003, concluded that reunification with
respondent was the permanent plan, but the trial court continued
custody with DSS. The trial court requested that respondent
complete a psychological evaluation, a substance abuse assessment
and random drug screenings, anger management assessment and
parenting classes.
On 13 June 2003, a review hearing was held, where it was
determined that respondent had not received a substance abuse or
anger management assessment and the trial court found that
respondent had made minimal progress. On 7 August 2003,respondent's progress was again reviewed, and at that time the
trial court received a psychological evaluation of respondent which
indicated he had a full-scale IQ of 70, one point away from the
legal definition of mental retardation. At that point, the trial
court ordered that a guardian ad litem be appointed to respondent.
The trial court also heard evidence regarding a continuing lack of
progress from respondent. The trial court continued custody of the
children with DSS and determined that the twins' permanent plan
should continue to be reunification with respondent, provided he
adequately address the trial court's concerns.
On 6 November 2003, a permanency planning hearing was held.
DSS reports indicated that respondent had failed to secure
independent housing, had not obtained a driver's license, had
failed to submit to random drug screens and had made minimal
progress in addressing his problems. The trial court changed the
children's permanent plan to adoption. Respondent appeals from the
permanency planning review order.
Respondent argues on appeal: (1) that the trial court erred in
not appointing a guardian ad litem to respondent prior to the
permanency planning review hearing on 6 November 2003; and (2) that
the trial court erred in finding that respondent made “minimal
progress” in addressing the issues that led to the twins' placement
in foster care and not making appropriate findings of fact
concerning the permanency planning order under N.C. Gen. Stat. §§
7B-906 and 907. Respondent argues that the trial court erred in not appointing
a guardian ad litem to respondent before the permanency planning
review hearing on 6 November 2003. At the prior hearing on 7
August 2003, the trial court first received evidence of
respondent's psychological evaluation, which stated that respondent
had an I.Q. of 70, one point away from the legal definition of
mental retardation. At that point, respondent was appointed a
guardian ad litem. Respondent argues that he should have been
appointed a guardian ad litem prior to the 7 August 2003 hearing.
N.C. Gen. Stat. § 1A-1, Rule 17(b) requires the appointment of
a guardian ad litem for incompetent parties in civil cases. N.C.
Gen. Stat. § 1A-1, Rule 17(b) (2003). In addition, this Court has
held that:
[I]f in the course of the trial of a civil
action or proceeding, circumstances are
brought to the attention of the trial judge
which raise a substantial question as to
whether a party litigant, who is not already
represented by a guardian, is non compos
mentis, it is the duty of the trial judge to
see that proper determination of this question
is made before proceeding further with the
trial . . . .
Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166
(1971). Further, “[w]hether the circumstances which are brought to
the attention of the trial judge are sufficient to raise a
substantial question as to the party's competency is a matter to be
initially determined in the sound discretion of the trial judge.”
Id.
In the instant case, when the trial court was presented with
evidence raising a substantial question as to the respondent'scompetency at the 7 August 2003 hearing, the trial court appointed
a guardian ad litem. There is no evidence in the record that
supports the appointment of a guardian ad litem to respondent
before this time, as this was the first time evidence of
respondent's mental capacity was presented to the trial court and
respondent had not previously been declared incompetent. As such,
respondent's assignment of error fails.
Respondent next argues that the trial court erred in finding
that respondent had only made “minimal progress” since the 7 August
2003 hearing. Respondent also argues that the trial court failed
to make the appropriate findings of fact mandated by N.C. Gen.
Stat. §§ 7B-906 and 907.
We first note that while respondent assigned error to the
finding that he only made “minimal progress,” this is not in fact
what respondent has argued to this Court in his brief. Instead,
respondent addresses the trial court's failure to make findings
under N.C. Gen. Stat. §§ 7B-906 and 907. Further, as the order
under review is from a permanency planning review hearing, any
arguments regarding N.C. Gen. Stat. § 7B-906, which addresses
reviews of custody orders, are inapposite. See In re Harton, 156
N.C. App. 655, 658, n.2, 577 S.E.2d 334, 336, n.2 (2003). However,
as we conclude that respondent's argument regarding N.C. Gen. Stat.
§ 7B-907 has merit, we choose to exercise our discretion and
address respondent's argument.
The trial court's findings of fact lack the requisite findings
mandated by N.C. Gen. Stat. § 7B-907(b). This statute providesthat the goal of the permanency planning hearing is to develop a
plan “to achieve a safe, permanent home for the juvenile within a
reasonable period of time.” N.C. Gen. Stat. § 7B-907(b) (2003).
“[O]ne 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).” In re Shue, 311
N.C. 586, 596, 319 S.E.2d 567, 573 (1984). As such, N.C. Gen.
Stat. § 7B-907 requires that if a juvenile is not returned home as
a result of a permanency planning hearing, the trial court must
consider certain specified criteria and make “written findings
regarding those that are relevant.” See In re M.R.D.C., ___ N.C.
App. ___, 603 S.E.2d 890 (2004); N.C. Gen. Stat. § 7B-907(b).
These criteria include:
(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 interests 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 planhearing made reasonable efforts to implement
the permanent plan for the juvenile;
(6) Any other criteria the court deems
necessary.
N.C. Gen. Stat. § 7B-907(b).
This Court in In re J.S., ___ N.C. App. ___, 598 S.E.2d 658
(2004), noted that “[w]hile it is true that the court is not
expressly required to make every finding listed, it must still make
those findings that are relevant to the permanency plans being
developed for the children.” Id. at ___, 598 S.E.2d at 660-61.
The trial court in the instant case failed to address statutory
factors numbers 1, 3 or 4. For instance, the order failed to state
why it was not possible for the minor children to be returned home.
See In re Ledbetter, 158 N.C. App. 281, 580 S.E.2d 392 (2003)
(reversing the trial court's order as it failed to explain why it
was not in the child's best interest to be returned to his mother
and because it did not make the findings required by N.C. Gen.
Stat. § 7B-907(b)). In the absence of these critical findings, the
findings of fact in this case are not sufficient to comply with the
requirements of N.C. Gen. Stat. § 7B-907(b). While the evidence in
this case might have supported the determination that the trial
court ultimately made, our statute requires the court to consider
the factors listed in N.C. Gen. Stat. § 7B-907(b) and make the
relevant findings. See Ledbetter, 158 N.C. App at 286, 580 S.E.2d
at 395. Because the trial court's findings fail to comply with
the statutory requirements of N.C. Gen. Stat. §7B-907(b), we remandthis matter to the trial court to make the appropriate findings of
fact.
Affirmed in part; reversed and remanded in part.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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