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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
In re: T.K., D.K., T.K., and J.K. Minor Children
Filed: 21 June 2005
1. Child Abuse and Neglect--permanency planning hearing--consideration of parent's
A mother's progress toward correcting the conditions which had lead to the removal of
her neglected children was considered by the trial court at a permanency planning hearing, but
was not sufficient for the return of the children.
2. Child Abuse and Neglect--primary focus--best interests of children--progress of
The trial court did not err when ceasing reunification efforts between a mother and
neglected children by focusing on the best interests of the children rather the mother's progress.
While the parent's right to maintain the family must be considered, at this stage the children's
best interests are paramount.
Judge TYSON concurring in part and dissenting in part.
Appeal by respondent from an order dated 31 October 2003 by
the Honorable Lisa C. Bell in Mecklenburg County Juvenile District
Court. Heard in the Court of Appeals 21 October 2004.
Tyrone C. Wade for Mecklenburg County Department of Social
Michael E. Casterline for respondent-appellant mother.
(See footnote 1)
, (respondent-mother) appeals from a permanency planning
order dated 31 October 2003 granting guardianship of T.K., D.K.,
and T.K. to the maternal aunt (C.C.) and a plan for reunification
of J.K., the youngest child, with either or both parents.
On 7 May 2002 the Mecklenburg County Department of Social
Services (DSS) initiated juvenile petitions alleging three minorchildren (T.K. age 12, D.K. age 10, and T.K. age 3) were neglected
and dependent. At the time the juvenile petitions were filed, the
children were living in a motel with their mother, stepfather,
maternal aunt and cousin, as the family had been evicted from their
home. On 6 September 2002, DSS initiated another juvenile petition
alleging that newborn J.K. (born 5 September 2002) was a neglected
and dependent child as J.K. tested positive for cocaine at birth.
The court granted DSS non-secure custody of all the children.
On 17 July 2002 at the adjudicatory hearing, T.K., D.K., and
T.K. were determined to be neglected and dependent juveniles, based
on a number of findings by the trial court.
(See footnote 2)
After a dispositional
hearing on 22 August 2002, wherein the court approved a plan of
reunification, on 29 October 2002, the court conducted an
adjudication hearing as to J.K. and a review hearing as to T.K.,
D.K., and T.K. J.K. was adjudicated neglected and dependent. The
plan for T.K., D.K., and T.K. was changed from reunification to
termination of parental rights and adoption. At that time, the
The following progress has been made towards
alleviating and mitigating the problems that
necessitated placement: parents have a serious
substance abuse problem which affects their
ability to care for children . . . [p]arents
have complied with some of plan goals but
insufficient progress for children to be
returned to them.
Thereafter, at the permanency planning hearing almost one year
later on 16 October 2003, the court found that efforts to reuniteT.K., D.K., and T.K. would have been futile and inconsistent with
their health, safety, and need for a permanent home within a
reasonable time. The court, however, continued the permanent plan
of reunification for J.K.
Respondent-mother raises two issues on appeal from the
permanency planning order: whether the trial court erred in ceasing
reunification with the three older children when (I) the
respondent-mother had made progress toward correcting conditions
that led to the removal of the minor children and (II) the primary
focus was on how well the children were doing in their placement
rather than the progress of the parents. Respondent-mother's six
remaining assignments of error are not argued in her brief and are
therefore deemed abandoned. N.C. R. App. P. 28(a); McManus v.
McManus, 76 N.C. App. 588, 591, 334 S.E.2d 270, 272 (1985).
 In her first assignment of error, respondent-mother
alleges the trial court erred in failing to consider her progress
to reunite her and her three minor children. We disagree.
Pursuant to N.C.G.S. § 7B-907(c), the court is required to
make findings regarding the best plan of care to achieve a safe,
permanent home for the juvenile within a reasonable period of
time. N.C. Gen. Stat. § 7B-907(c) (2003). In determining the
best plan, the court must consider several factors, including but
not limited to, how long DSS has provided efforts to the family
before non-secure custody is obtained. Id. The court must alsoconsider any substantial change after non-secure custody is
obtained. Id. N.C.G.S. § 7B-507(a) requires the court to make a
finding of reasonable efforts at each hearing. N.C. Gen. Stat. §
7B-507(a) (2003). [T]he court may direct that reasonable efforts
to eliminate the need for placement . . . shall cease if the court
makes written findings of fact that . . . [s]uch 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. N.C. Gen. Stat. § 7B-507(b)(1) (2003).
The court's relevant findings are:
2. That the parents have made some progress
since the adjudication; however, progress
began after a period of time. The
respondent father has entered into
substance abuse treatment and has
maintained sobriety. Since entering, his
urinalyses have been negative. He has
secured employment; however, does not
have housing. . . .
3. That respondent mother has submitted
NA/AA forms to this [c]ourt. . . . The
mother maintains she is substance abuse
free; however, she tested positive for
marijuana four months ago. The mother has
employment, but does not yet have
housing. . . .
4. That the mother has had seven (7)
negative random urinalyses. The most
recent sample was negative as well.
However, based on the history of this
case and the fact that the mother tested
positive for controlled substances as
recently as four months ago and has
attended visits with someone who smells
of alcohol suggest to this [c]ourt there
are still concerns regarding the mother's
. . .
21. That [the stepfather, J.L.] has made
greater progress than [the mother];
however, the [c]ourt does not find that
six more months will make it more likely
that his [youngest daughter, T.K.] could
or should be removed from the household
where she has resided for over a year.
The [c]ourt specifically finds to the
contrary that six more months will serve
to strengthen that home environment and
relationship for [the daughter]. The
[c]ourt specifically finds there is a
greater chance [the stepfather] can
assume custody of [J.K.] within six
months than [T.K.] if he continues to
22. That the mother is given credit for
addressing her addiction and the efforts
made to change her life which is
difficult; however, the time line in the
life of the children is not the same as
that of an adult. One and a half years in
the life of a child is vastly different
than that of an adult. Children cannot
wait for parents to get their lives
together, get sober and do the things
necessary to be an adequate parent.
Clearly the court considered that some progress had been made
by respondent-mother and father toward correcting the conditions
which lead to removal of the children; however that progress was
not nearly enough. The issues that led to the children being
removed from the home were substance abuse by the parents,
inadequate housing, employment, the children failing to attend
school regularly, the parent's failure to maintain D.K.'s
prescription for medication associated with his ADHD and the
parent's failure to provide counseling for T.K. Thereafter, the
three older children were in and out of placement for 18 months.
After careful consideration, the court had no assurances
respondent-mother had made sufficient progress for the children tobe returned to her care. This assignment of error is overruled.
 In her second assignment of error, the respondent-mother
contends the trial court erred in ceasing reunification efforts
with the three older children when the primary focus was how well
the children were doing rather than the progress of the parents.
Pursuant to N.C.G.S. § 7B-907(a), in determining whether it is
possible for the children to return home within six months of the
permanency planning hearing, the court must look at the progress
the parents have made in eliminating the conditions that lead to
the removal of the children. N.C. Gen. Stat. § 7B-907(a) (2003).
Further, if the court determines it is not possible for the
juvenile to return home within that time, the court must then make
findings as to why it is not in the juvenile's best interest to
return home. Id.
In determining the best interests of the child, the trial
court should consider the parents' right to maintain their family
unit, but if the interest of the parent conflicts with the welfare
of the child, the latter should prevail. In re Parker
, 90 N.C.
App. 423, 431, 368 S.E.2d 879, 884 (1988). Thus, in this context,
the child's best interests are paramount, not the rights of the
parent. In re Smith
, 56 N.C. App. 142, 150, 287 S.E.2d 440, 445,
, 306 N.C. 385, 294 S.E.2d 212 (1982). In this case,
the court determined that it was not in the three older children's
best interest to return home before determining whether it was
possible for them to return home. The court made the followingfindings of fact:
7. That in July 2002, the juveniles, [T.K.,
D.K., and T.K.] were placed with [C.C.],
the maternal aunt, and all three have
remained there since that time. The
children have made great progress while
in her home. [D.K.] has significant needs
which are being addressed in therapy.
Based on the history of the home at the
time the children came into custody, the
two older children are very vocal about
not returning to the home of the mother
and the stepfather.
8. That the children have thrived in the
home of [C.C.] and the two older children
have no interest in visiting with the
mother though visitation has been
offered. [D.K.] has expressed a desire to
kill [her stepfather].
9. That the therapist reports [the youngest
daughter, T.K.] recognizes [C.C.'s] home
as her family home . . . .
10. That the children have resided with each
other and look to each other for support
and stability. It is, therefore, not in
the best interest of the three older
juveniles to separate one from the other.
11. That DSS has made reasonable efforts to
implement a permanent plan for the
juveniles. The permanent plan for [T.K.,
D.K. and T.K.] is guardianship with
[C.C.]. The permanent plan for [J.K.]
currently is reunification with either
the mother or the father or both.
12. That the reports to the [c]ourt clearly
indicate that it is not in [T.K., D.K.,
and T.K.'s] best interest to transition
into the home of their mother.
13. That the [c]ourt specifically finds that
efforts to reunite would be futile and
inconsistent with the juveniles, [T.K.,
D.K., and T.K.'s] health, safety, and
need for a permanent home within a
reasonable period of time.
. . .
15. That it is not possible for [T.K., D.K.,
and T.K.] to be returned home immediately
or within six months and the [c]ourt
finds it is not in the best interest of
these three juveniles to be returned home
in light of the issues yet to be
16. That because the children's return home
is not likely within six months, the
[c]ourt has considered whether legal
guardianship should be established.
[T.K., D.K., and T.K.] have been placed
with [C.C.] . . . for over a year. She
has met the needs of the juveniles and
provides a permanent safe environment.
. . .
24. That at this time, the juveniles'
continuation in or return to their home
is contrary to their best interest.
25. That guardianship in this [c]ourt's
opinion is better because the children
need to deal with the hurt and the anger
they feel toward their parents, in
particular [the oldest daughter, T.K. and
The court then made the following conclusions of law:
2. [DSS] has made reasonable efforts since
the last hearing to prevent or eliminate
the need for foster care placement.
3. Continuation of the juveniles in or
return to their home will be contrary to
their best interest, health, safety and
4. Reasonable efforts to reunite [T.K.,
D.K., and T.K.] should be suspended as
the permanent plan is guardianship with
[C.C.]. Reasonable efforts to reunite
[J.K.] should not be suspended at this
. . .
6. It is in the best interest of [T.K.,
D.K., and T.K.] to be placed under
guardianship with [C.C.].
7. It is in the best interest of [J.K.] to
remain in the legal custody of the [DSS]
with placement in foster care.
8. The [c]ourt further concludes that
termination of parental rights is not in
the best interest of [T.K., D.K., and
T.K.] as the permanent plan is
guardianship with a relative.
Respondent-mother argues the court ceased reunification by
disregarding the progress of the parents and focusing solely on the
three older children's best interests. This argument is without
merit. As noted above, the court made specific findings and
conclusions of law based on the parents' progress. The court found
that respondent-mother had addressed her drug addiction and changed
her lifestyle, noting that while she had tested negative for drugs
seven times, she had tested positive four months prior. The court
also noted the father of the two oldest children had made greater
progress than the respondent-mother in making lifestyle
improvements, finding it was more likely the father would regain
custody of the youngest child than the mother. Here the court
properly made findings of fact as to the respondent-mother's
progress (or lack thereof) and as to the best interest of the
children. However, as we stated above, at this stage the best
interests of the children, not the rights of the parents, are
paramount. In re Smith
at 150, 287 S.E.2d at 445; See also, In re
, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991) (trial
court did not abuse its discretion in maintaining custodyarrangements before it, given the mother's relatively recent
compliance with the trial court's orders and the children's stated
desires to remain in their current placement). This assignment of
error is overruled.
Judge LEVINSON concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge concurring in part, dissenting in part.
I concur in that portion of the majority's opinion to affirm
the trial court's order to continue reunification efforts for J.K.
I disagree with the holding in the majority's opinion to affirm the
trial court's permanency plan of guardianship for T.K., D.K., and
T.K. I also disagree with the majority's holding to affirm the
trial court's order because it failed to state the required clear,
cogent, and convincing standard of proof and the trial court
unlawfully delegated its judicial authority to determine
respondent's visitation with her children to a therapist. I
I. Parental Rights
If the trial court determines the children are not to return
home at the conclusion of the permanency planning hearing, the
trial court must consider the following enumerated factors and make
written findings of fact. Pursuant to N.C. Gen. Stat. § 7B-907(b)
(2003), (2) Where the juvenile's return home is unlikely within
six months, whether legal guardianship or custody with a relativeor some other suitable person should be established, and if so, the
rights and responsibilities which should remain with the parents.
The trial court determined continued reunification efforts
were futile and that guardianship of T.K., D.K., and T.K. should be
placed with C.C. with no visitation rights for respondent. The
rights and responsibilities of the minor should remain with the
parent. Id. By ordering no visitation rights for respondent and
guardianship to C.C., the trial court effectively terminated
respondent's parental rights in violation of the statute. Id.
II. Permanency Planning Hearing
Pursuant to N.C. Gen. Stat. § 7B-907(a) (2003), The purpose
of [a] permanency planning hearing shall be to develop a plan to
achieve a safe, permanent home for the juvenile within a reasonable
period of time. The issue before us is whether the trial court
erred in terminating respondent's reunification plan within two
months, where she showed achievement of some goals and substantial
progress toward others.
N.C. Gen. Stat. § 7B-907(a) (2003) states that [i]n any case
where custody is removed from a parent, guardian, custodian, or
caretaker, the judge shall conduct a review hearing designated as
a permanency planing hearing within 12 months after the date of the
initial order removing custody . . . . The purpose of this
hearing is to find a safe, permanent home for the juvenile within
a reasonable period of time. Id.
On 7 May 2002, DSS filed juvenile petitions for T.K., D.K.,
and T.K. On 17 July 2002, the juveniles were determined to beneglected and dependent. At a dispositional hearing on 22 August
2002, the court approved a plan for reunification. After
considering DSS's summary report at a review hearing on 29 October
2002, the trial court reversed its decision for reunification and
changed the plan to termination of parental rights and adoption.
Only two months had elapsed between the court's adoption of a plan
for reunification and its termination of that plan.
On 22 August 2002, a dispositional hearing addressed the
problems which lead to the removal of the children. The order from
that hearing identified these problems as: drug abuse, lack of
employment, housing, and parenting. The majority's opinion details
respondent's substantial progress toward each goal. Two months are
simply not enough time for respondent to fully remedy these issues,
or to entirely eliminate the causes that led to the removal of her
children. In the review hearing order, the trial court found
respondent had complied with some of the care plan goals and made
substantial progress toward meeting others. Yet, the court ruled
her compliance insufficient to merit continued reunification. The
time period that the trial court allotted respondent to fully
address and resolve the issues was unreasonable. The trial court
erred in reversing the plan for reunification in light of the
substantial progress respondent had shown during the short two
III. Clear, Cogent, and Convincing Evidence
Our review of respondent's assignments of error is well-
established. We must determine: (1) whether the trial court'sfindings of fact are supported by clear, cogent, and convincing
evidence; and (2) whether the findings of fact support the
conclusions of law in the order. In re Huff, 140 N.C. App. 288,
291, 536 S.E.2d 838, 840 (2000) (quotations and citation omitted),
disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9
(2001). We review the trial court's conclusions of law de novo.
Scott v. Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003);
see also Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95,
97-98 (2000). In In re Church, we remanded to the trial court to
determine whether the evidence satisfies the required standard of
proof of clear and convincing evidence. 136 N.C. App. 654, 658,
525 S.E.2d 478, 481 (2000). That same result is required here.
Here, the trial court reversed its decision for reunification
without making any required findings of fact based upon clear,
cogent, and convincing evidence. When the trial court's findings
of fact are not based on clear, cogent, and convincing evidence,
the conclusions that are based on those facts are unsupported. In
re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398
(1996). The trial court erred in not articulating its standard of
review. We may not infer it. In re Church, 136 N.C. App. at 658,
525 S.E.2d at 480.
IV. Unfitness as a Parent
The trial court's order granted guardianship to C.C. and did
not permit respondent any visitation, supervised or unsupervised,
with T.K., D.K., and T.K. In Moore v. Moore, this Court reiterated
the importance of 'the constitutionally-protected paramount rightof parents to custody, care, and control of their children must
prevail.' 160 N.C. App. 569, 572-73, 587 S.E.2d 74, 76 (2004)
(quoting Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901,
905 (1994)). In reversing the trial court's order denying the
plaintiff-father any and all visitation rights, we held that
without proof of inconsistent conduct, the 'best interest' test
does not apply and the trial court is limited to finding that the
natural parent is unfit to prohibit all visitation or contact with
his or her child. Moore, 160 N.C. App. at 573, 587 S.E.2d at 76;
see N.C. Gen. Stat. § 50-13.5(i) (2003).
The trial court's order fails to make a finding that either:
(1) respondent's conduct was inconsistent with her protected status
as a parent, thus triggering the best interests of the child
standard; or (2) respondent has shown by clear and convincing
evidence to be unfit as a parent. Moore, 160 N.C. App. at 573, 587
S.E.2d at 76; N.C. Gen. Stat. § 50-13.5(i). The trial court erred
by denying respondent all visitation rights with T.K., D.K., and
T.K. without finding her to be unfit or engaging in conduct
inconsistent with her parental rights. Id. Absent proper findings
supported by clear, cogent, and convincing evidence, the trial
court's conclusions of law are erroneous, and should be reversed.
V. Delegation of Authority
The trial court wrongfully delegated its judicial authority to
T.K.'s therapist to determine what is in her best interest and
whether the respondent should have visitation. The trial court
ordered if the therapist concluded respondent's visitation with herchildren was best, the court would summarily authorize the
The rendering of a judgment is a judicial
act, to be done by the court only, Hall, J.,
in Mathews v. Moore, 6 N.C. 181 [(1812)].
Judgments are the solemn determinations of
judges upon subjects submitted to them, Hall,
J., in Williams v. Woodhouse, 14 N.C. 257
[(1831)]. A judgment is not what may be
entered, but it is what is considered and
delivered by the court, Reade, J., in Davis
v. Shaver, 61 N.C. 18 [(1866)]. In its
ordinary acceptation, a judgment is the
conclusion of the law upon facts admitted or
in some way established, and, without this
essential fact, the court is not in a position
to make final decision on the rights of the
parties, Sedbury v. Express Co., 164 N.C.
363, 79 S.E. 288 [(1913)].
Eborn v. Ellis, 225 N.C. 386, 389, 35 S.E.2d 238, 240 (1945).
This Court held
wherein the court considered former N.C. Gen.
Stat. § 7A-573, which explicitly permitted
delegation of the court's power by
administrative order, N.C. Gen. Stat. §
7B-2506 does not state, or even indicate, that
the court may delegate its discretion. The
statute does not contemplate the court vesting
its discretion in another person or entity,
therefore, the court, and the court alone,
must determine which dispositional
alternatives to utilize . . . juvenile.
Accordingly, we hold the trial court
improperly delegated its authority . . . .
In re Hartsock, 158 N.C. App. 287, 292, 580 S.E.2d 398, 399 (2003).
Upon close review, the General Assembly does not authorize a
trial judge to delegate her authority and decision-making power for
another to determine whether a parent may visit with her child.
N.C. Gen. Stat. § 7B-2506 (2003). The trial court erred in
delegating the decision whether respondent may visit with T.K. tothe therapist.
I concur in the majority's opinion to affirm the trial court's
order to continue reunification efforts for J.K. I disagree with
the holding in the majority's opinion to affirm the trial court's
permanency plan of guardianship for T.K., D.K., and T.K. The
majority's assertion the child's best interests are paramount, not
the rights of the parent is an incorrect statement of the law.
, 337 N.C. at 403-04, 445 S.E.2d at 905 (We hold that
absent a finding that parents (i) are unfit or (ii) have neglected
the welfare of their children, the constitutionally-protected
paramount right of parents to custody, care, and control of their
children must prevail.) A best interest analysis is not reached
unless the trial court finds by clear, cogent, and convincing
evidence that the parents are either unfit or have engaged in
conduct inconsistent with their parental rights. Id
. at 403-04,
445 S.E.2d at 905; see
N.C. Gen. Stat. § 50-13.5(i). That portion
of the trial court's order ceasing reunification efforts should be
The trial court must make findings of fact based on clear,
cogent, and convincing evidence, In re Huff
, 140 N.C. App. at 291,
536 S.E.2d at 840, and judicially determine respondent's visitation
with her children, In re Hartsock
, 158 N.C. App. at 292, 580 S.E.2d
at 394. The trial court's order is affected with an error of law
and should be reversed. I respectfully dissent.
Initials are used throughout to protect the identity of the
The trial court order was signed and entered 9 August 2002.
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