How to access the above link?
1. Appeal and Error--preservation of issues--jurisdiction
Although petitioner Department of Social Services contends the trial court erred in a child neglect case by improperly retaining jurisdiction over the case when another judge was assigned to hear juvenile cases on that date, this issue was not properly preserved for appellate review because the parties did not object to the district court judge conducting the review hearing.
2. Appeal and Error--preservation of issues--motion to intervene
Although respondent parents assign error to the granting of the foster parents' oral motion to intervene at the 19 March 2003 hearing in a child neglect case, this assignment of error is dismissed because: (1) assuming arguendo that respondent father's assignment of error to finding of fact number 33 that specifically addresses the foster parents' intervention provides jurisdiction to the Court of Appeals over the issue of intervention, no party objected to the foster parents' oral request to intervene; and (2) in the absence of an objection at trial, a question may not be reviewed on appeal. N.C. R. App. P. 10(b)(1).
3. Child Abuse and Neglect--neglect--trial court failure to comply with time limitation
for filing written order
The trial court's order following a review hearing in a child neglect case is reversed because it was not filed within the time limitation set forth in N.C.G.S. § 7B-906(d) and the nine- month delay was prejudicial because: (1) the aggrieved parties (Department of Social Services and the parents) could not appeal when there was no written order; (2) the delay was directly contrary to the permanent plan of reunification and the minor child's best interests; (3) without a filed order, there was no order with which anyone had to comply since an order entered in open court is not enforceable until it is entered; and (4) the bonding of the child with the foster parents caused by the delay will either afford the foster parents increased leverage in the best interests analysis or will cause greater trauma to the child if the plan for reunification prevails.
4. Child Abuse and Neglect--findings of fact--priority placement to relatives--best
interests of child
The trial court erred in a child neglect and custody case by failing to make findings to justify not giving priority in placement to the minor child's relatives, because: (1) exempting review hearings from the requirement that relatives be given first consideration risks undermining the Interstate Compact on the Placement of Children; (2) N.C.G.S. § 7B-906 incorporates the requirement under N.C.G.S. § 7B-903 that the court give first consideration to placement of a child with relatives; and (3) the trial court made no specific findings that placement with the child's relatives would not be in her best interests, but instead recites facts about the relatives and the foster parents' views without drawing any factual conclusions.
5. Child Abuse and Neglect--findings of fact--goals of foster care placement--role foster
parents should play in planning for the juvenile
The trial court erred in a child neglect and custody case by failing to make findings of fact required under N.C.G.S. § 7B-906(c)(3) & (4) that the court address the goals of the foster careplacement and the role that the foster parents should play in the planning for the juvenile since the trial court did not expressly indicate any intention to change the status of the foster parents. Even if the trial court determines on remand to change the status of the foster parents, the trial court would be required under N.C.G.S. § 7B-906(c)(9) to make findings regarding the role of the foster parents in conjunction with the existing permanent plan of reunification.
Holland & O'Connor, by W. B. Holland, Jr. and Jennifer S.
O'Connor, for petitioner-appellant.
Richard Croutharmel for respondent-appellant mother.
Peter Wood for respondent-appellant father.
Wyrick, Robbins, Yates & Ponton, LLP, by K. Edward Greene and Kathleen A. Naggs, for intervenors-appellees.
Petitioner Johnston County Department of Social Services ("JCDSS") and the parents of L.L. ("the respondents") appeal from an order of the trial court transferring custody from JCDSS to the intervenor foster parents ("the Maples"). Our review of the record suggests that the trial court and the parties may have gotten sidetracked by the dispute between JCDSS and the Maples to the point that L.L. has become less the focus of attention and more a pawn in the dispute.
Perhaps as a result, the order on appeal was filed eight months late to the prejudice of L.L., the parents, and JCDSS. For this reason, we reverse. We also hold that the trial court erred in its order by not complying with the provisions of N.C. Gen.Stat. § 7B-906 (2003) and by not explaining why it declined to give preference to the child's relatives when considering placement of the child. Accordingly, we reverse the trial court's order and remand for a new review hearing and entry of an order consistent with this opinion.
A. I assume not if we filed termination of
Q. In fact, really _ I mean, you would be
unable to do it due to your feelings and the
things that led you to file these actions.
A. We feel like we didn't act any different
than DSS since termination of parental rights
had already been pursued with another child.
Thus, given the unusual circumstances of this case and the nature of the oral order, the delay undermines the permanent plan of reunification and prejudices L.L., the parents, and JCDSS. Although the Maples were not prejudiced by the delay, any cognizable interest of the Maples "derives from the child's right to have his or her best interests protected." In re Baby Boy Scearce, 81 N.C. App. 531, 541, 345 S.E.2d 404, 410, disc. review denied, 318 N.C. 415, 349 S.E.2d 589 (1986). Yet, because of the permanent plan of reunification, the delay may well harm L.L. Here, from the time of the review hearing until the present, L.L. has aged from being six months old to being almost three years old while living with a couple committed to adopting her and opposing reunification. As Judge Becton noted in a dissenting opinion:
Given the tender ages of the children involved in most of these cases and the length of time it generally takes from temporary removal to termination . . . bonding between the child and the foster parents is likely to occur and is, therefore, likely to be unduly weighted when balanced against the interest of parents . . . .
In re Webb, 70 N.C. App. 345, 359, 320 S.E.2d 306, 314 (1984)
(Becton, J., dissenting), aff'd per curiam, 313 N.C. 322, 327
S.E.2d 879 (1985). Because of the bonding, the delay will either
afford the Maples increased leverage in the "best interests"
analysis or will cause greater trauma to the child if the plan for
reunification prevails. We cannot condone a mode of proceeding
that risks making a termination of parental rights a fait accompli.
JCDSS and the parents attempted to call the potential
prejudice to the attention of the trial court by moving to stay theorder and preserve the status quo pending appeal. In its motion,
JCDSS noted (1) that the Maples, who had been granted custody, did
not support the plan of reunification and intended to adopt L.L.,
(2) that JCDSS was nonetheless under a duty, pursuant to the
court's order, to continue efforts to reunify L.L. with her
biological family, and (3) that placement in the Maples' home,
pending the appeal, would compromise JCDSS' ability to work towards
reunification. JCDSS also stated that "upon information and
belief, if execution of the Order is not stayed, the child's IV-E
eligibility funding will be affected in the future . . . ." JCDSS
specifically noted that it could take one to two years for the
appeal to be resolved. Not only did the trial court deny the stay,
but despite the concerns expressed by JCDSS, the court further
delayed any appeal by not entering its order for another eight
We acknowledge that the record also suggests that had JCDSS requested another review hearing earlier or petitioned for writ of mandamus, some of the delay may have been avoided. Nevertheless, the circumstances of this case demonstrate prejudice to L.L., the parents, JCDSS, and the statutorily-mandated permanency planning process. See In re R.T.W., 359 N.C. 539, 547, 614 S.E.2d 489, __ 2005 N.C. LEXIS 646, at *17 (July 1, 2005) (observing that "protracted custody proceedings that leave the legal relationship between parent and child unresolved and the child in legal limbo . . . thwart the legislature's wish that children be placed 'in . . . safe, permanent home[s] within a reasonable amount of time'"(quoting N.C. Gen. Stat. § 7B-100(5) (2003)). Accordingly, we reverse the order of the trial court and remand for a new review hearing.
IV. Failure to Make Adequate Findings.
We address the appellants' arguments regarding the adequacies of the order's findings of fact because the issues are likely to recur on remand. Appellants contend that the trial court erred (1) in failing to make findings to justify not giving priority in placement to L.L.'s relatives, the Spears; and (2) in failing to make findings of fact required under N.C. Gen. Stat. § 7B-906. We agree.
A. Priority Placement to Family Members.
 At the review hearing, appellants notified the trial court that JCDSS had received an approved ICPC home study for the Spears and that JCDSS, the parents, and L.L.'s guardian ad litem all had stipulated to placement of L.L. with the Spears. In arguing that the trial court failed to make sufficient findings of fact to support its rejection of that stipulation, appellants point to N.C. Gen. Stat. § 7B-903(a)(2)(c) (2003). N.C. Gen. Stat. § 7B- 903(a)(2)(c) mandates that "[i]f the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile." Appellants argue that the trial court's order must be reversed because the court neither placed L.L. with her relatives, the Spears, nor made anyfindings of fact that placement with the Spears would be contrary to L.L.'s best interests.
The Maples contend that trial courts entering orders following review hearings are not required to comply with N.C. Gen. Stat. § 7B-903(a)(2). "The primary rule of statutory construction is to effectuate the intent of the legislature." In re Estate of Lunsford, 359 N.C. 382, 392, 610 S.E.2d 366, 373 (2005).
N.C. Gen. Stat. § 7B-906, which the parties agree governed the hearing below, specifically provides that "[t]he court, after making findings of fact, . . . may make any disposition authorized by G.S. 7B-903, including the authority to place the juvenile in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interests of the juvenile." N.C. Gen. Stat. § 7B-906(d). The plain language of the statute thus incorporates N.C. Gen. Stat. § 7B-903's dispositional alternatives, which, with respect to placement of the child, give priority to a suitable relative "unless the court finds that the placement is contrary to the best interests of the juvenile." N.C. Gen. Stat. § 7B-903(a)(2).
To interpret N.C. Gen. Stat. § 7B-906 in the manner urged by the Maples would be inconsistent with the overall scheme adopted by the General Assembly to comply with federal law. In 1996, in the Personal Responsibility and Work Opportunity Reconciliation Act, Congress provided that a State, as a condition for receiving federal foster care funds, must have a plan for foster care that, in pertinent part, "provides that the State shall consider givingpreference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards." 42 U.S.C. § 671(a)(19) (2003).
Consistent with that requirement, N.C. Gen. Stat. § 7B-505 (2003) (emphasis added) specifically requires that the trial court in entering a nonsecure custody order for placement outside the home "shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home." If so, then "the court shall order placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile." Id. (emphasis added). N.C. Gen. Stat. § 7B-506(h) (2003) (emphasis added) then provides that, following that initial order, "[a]t each hearing to determine the need for continued custody, the court shall: . . . (2) [i]nquire as to whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home." Again, "[i]f the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order temporary placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile." Id. (emphasis added). As noted above, N.C. Gen. Stat. § 7B-903 _ setting out dispositional alternatives for abused, neglected, or dependent children _ contains an identical provision. N.C. Gen.Stat. § 7B-903(a)(2). We do not believe that the General Assembly intended to require trial courts to give priority consideration to relatives in the initial nonsecure custody proceedings, at "each hearing" to determine the need for continued custody, and in dispositions for abused, neglected, or dependent children, but _ despite its express reference to N.C. Gen. Stat. § 7B-903 _ did not intend to incorporate a similar requirement when trial courts are reviewing custody placements.
In addition, each of the statutes further provides that "[p]lacement of a juvenile with a relative outside of this State must be in accordance with the Interstate Compact on the Placement of Children," as set out in Article 38 of the Juvenile Code (the "ICPC"). N.C. Gen. Stat. §§ 7B-505, 7B-506(h)(2), and 7B- 903(a)(2). Exempting review hearings from the requirement that relatives be given first consideration risks undermining the ICPC. Under the ICPC, a "child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child." N.C. Gen. Stat. § 7B-3800, Art. III(d) (2003). In other words, a child cannot be placed with an out-of-state relative until favorable completion of an ICPC home study. Further, the policies underlying the ICPC anticipate that states will cooperate to ensure that a state where a child is to be placed "may have full opportunity to ascertain the circumstances of the proposed placement" and theState seeking the placement "may obtain the most complete information on the basis of which to evaluate a projected placement before it is made." Id., Art. I(b), (c).
In short, compliance with the ICPC may take time and often may not be completed until a review hearing is held, as this case demonstrates. The order for nonsecure custody was entered on 17 October 2002 and the order under N.C. Gen. Stat. § 7B-506 for continued nonsecure custody was dated 23 October 2002. On 20 November 2002, following the adjudication of L.L. as neglected and after finding that the Spears had expressed a desire and willingness to provide care for L.L., Judge Stewart entered an order for a "Priority Placement Request from the State of North Carolina to the State of Virginia, pursuant to Article III of I.C.P.C.," requesting a home study of the Spears. If the Maples' argument were accepted, the trial court, at the point when the ICPC home study had only just been ordered, would no longer have been required to give any consideration to placement with the Spears. In fact, JCDSS did not receive the approved home study from Virginia until immediately before the April 2004 review hearing. Thus, the trial court could not have given consideration to relative placement until the very hearing at which the Maples contend consideration was no longer required.
The Maples' proposed construction of the statute thus creates a conflict between the requirements of the ICPC and the mandate for priority consideration of relatives. We can, however, avoid any such conflict by construing N.C. Gen. Stat. § 7B-906 asincorporating N.C. Gen. Stat. § 7B-903's requirement that the court give first consideration to placement of a child with relatives. See State v. Boltinhouse, 49 N.C. App. 665, 667-68, 272 S.E.2d 148, 150 (1980) ("'Statutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to each. Any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent.'" (quoting 12 Strong's North Carolina Index 3d, Statutes § 5.4, pp. 69-70)).
Accordingly, we hold that the trial court was required to first consider placing L.L. with the Spears unless it found that such a placement was not in L.L.'s best interests. The trial court's review order does not, however, include the necessary findings of fact. Although L.L.'s guardian ad litem, JCDSS, and the parents all agreed to placement with the Spears and Virginia approved the Spears for placement, the trial court's order included only two findings of fact regarding the Spears as a possible placement:
19. . . . As stated above, the Spears have custody of [L.L.'s] half siblings via Lenoir County DSS. Mr. Spears testified at trial that he lives in Virginia, approximately four hours away; he is 53 years old with a 12th grade education, has a deceased father and currently has 3 children, ages 7, 4 and 3 residing with he and his wife, who is not employed outside the home and who has an 11th grade education. The total family income is $30,000.00 per year.
. . . .
24. After meeting with the Spears, the
Maples grew extremely concerned with [L.L.'s]
placement with the Spears, given their age and
the fact that they already had three otherchildren in their custody under the age of
seven and a limited family income. Mr.
Spears's father is already deceased and Mr.
Spears would be 70 by the time [L.L.] could
get a driver's license.
(See footnote 1)
The trial court made no specific finding that placement with Mr.
and Mrs. Spears would not be in L.L.'s best interests. Further,
the above findings recite certain facts about the Spears and the
Maples' views, but draw no factual conclusions. See Williamson v.
Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000)
(noting that "mere recitations of the evidence" are not the
ultimate findings required, and "do not reflect the processes of
logical reasoning" required (internal quotation marks omitted));
Appalachian Poster Adver. Co. v. Harrington, 89 N.C. App. 476, 479,
366 S.E.2d 705, 707 (1988) (holding that the trial court failed to
find the "ultimate facts" where "[f]or the greater part, [the
findings of fact] are only recitations of the evidence"). We also
note that the Maples' concerns _ which cannot substitute for a
finding by the trial court _ address the question of a permanent
placement and not the question before the trial court: who should
have custody pending reunification efforts?
On remand, the trial court must give first consideration to placement with the Spears. Before placing L.L. with the Maples orwith anyone else, the court must make specific findings of fact explaining why placement with the Spears is not in L.L.'s best interests. See Shore v. Norfolk Nat'l Bank of Commerce, 207 N.C. 798, 799, 178 S.E. 572, 572-73 (1935) (holding that the trial court must specifically find the facts and cannot simply "indicate from what source the facts may be gleaned").
B. Findings of Fact Required Under N.C. Gen. Stat. § 7B-906.
 In a review hearing pursuant to N.C. Gen. Stat. § 7B-906, the trial court is required to consider the following criteria and make written findings regarding those that are relevant:
(1) Services which have been offered to reunite the family, or whether efforts to reunite the family clearly would be futile or inconsistent with the juvenile's safety and need for a safe, permanent home within a reasonable period of time.
(2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.
(3) Goals of the foster care placement and the appropriateness of the foster care plan.
(4) A new foster care placement, if continuation of care is sought, that addresses the role the current foster parent will play in the planning for the juvenile.
(5) Reports on the placements the juvenile has had and any services offered to the juvenile and the parent, guardian, custodian, or caretaker.
(6) An appropriate visitation plan.
(7) If the juvenile is 16 or 17 years of age, a report on an independent livingassessment of the juvenile and, if appropriate, an independent living plan developed for the juvenile.
(8) When and if termination of parental rights should be considered.
(9) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-906(c).
An examination of the 23 January 2004 order reveals that the order fails to meet the requirement of N.C. Gen. Stat. § 7B-906(c)(3) & (4) that the court address the goals of the foster care placement and the role that the foster parents should play in the planning for the juvenile. The trial court ordered JCDSS to continue reasonable efforts at reunification, but at the same time granted legal and physical custody to the Maples, who had confirmed their determination to terminate the respondent parents' parental rights by amending their petitions shortly after the review hearing in which they obtained custody. Yet, the court's order imposes no requirements on the Maples at all; it does not even direct the Maples to cooperate with JCDSS in connection with the court-ordered "reasonable reunification efforts." Without specification of the goal for the placement with the Maples and the role they were to play in connection with L.L.'s permanent plan of reunification, the purposes of a permanent plan and a review hearing could not be met.
The Maples contend that N.C. Gen. Stat. § 7B-906(c)(3) & (4) were not relevant because they were no longer foster parents. The Maples rely on N.C. Gen. Stat. § 131D-10.2(8) (2003), which defines a "Family Foster Home" as "the private residence of one or moreindividuals who permanently reside as members of the household and who provide continuing full-time foster care for a child or children who are placed there by a child placing agency . . . ." (Emphasis added.) The Maples reason that they are not a "Family Foster Home" because L.L. was placed with them by the court and not by a child placing agency.
Assuming, arguendo, that the definitions in N.C. Gen. Stat. § 131D-10.2 are relevant to the Juvenile Code, (See footnote 2) it is undisputed that L.L. was originally placed with the Maples by JCDSS, a child placing agency as defined by N.C. Gen. Stat. § 131D-10.2(4). Further, they continue to provide "foster care" within the meaning of N.C. Gen. Stat. § 131D-10.2(9):
"Foster Care" means the continuing provision of the essentials of daily living on a 24-hour basis for dependent, neglected, abused, abandoned, destitute, orphaned, undisciplined, or delinquent children or other children who, due to similar problems of behavior or family conditions, are living apart from their parents, relatives, or guardians in a family foster home or residential child-care facility. The essentials of daily living include but are not limited to shelter, meals, clothing, education, recreation, and individual attention and supervision.
In addition, a "foster parent" is simply "any individual who is 18 years of age or older who is licensed by the State to provide foster care." N.C. Gen. Stat. § 131D-10.2(9a). The Maples have not argued that they are not "foster parents."
Our review of the trial court's order reveals no intent to alter the original status of the Maples as that of being foster parents. The ramifications of such a change of status could be profound. For example, L.L. might be denied foster care benefits under N.C. Gen. Stat. § 108A-49 (2003). Further, the Maples would no longer be regulated under Article 1A of Chapter 131D. In light of the potential consequences, we do not construe the trial court's order as making such a fundamental change, especially when the order consistently refers to the Maples as "foster parents."
Since the trial court did not expressly indicate any intention to change the Maples' status from that of foster parents, it was required to make findings of fact under N.C. Gen. Stat. § 7B-906(c)(3) & (4). Even if the trial court determines on remand that the Maples should not be considered foster parents, but should play some other currently unspecified role, the trial court would be required under N.C. Gen. Stat. § 7B-906(9), given the circumstances of this case, to make findings regarding the role of the Maples in conjunction with the existing permanent plan of reunification. The order itself establishes the ongoing animosity between JCDSS and the Maples. The order must provide a workable plan for all parties to cooperate in achieving L.L.'s best interests. On remand, we remind all parties that policing a game of tit-for-tat between a Department of Social Services and foster parents is not the function of a review hearing. Nor should disagreement with an agency's policies, practices, or casework distract from L.L.'s best interests. Our review of the review hearing order indicates that more than a third of the 38 findings of fact relate in whole or in part to a discussion of JCDSS' treatment of the Maples, the effect of JCDSS' actions on the Maples, the Maples' beliefs regarding their ability to adopt, or disapproval of JCDSS. Significantly, L.L.'s guardian ad litem is only mentioned in fleeting fashion, with no description of his recommendation and no explanation as to why the court found the guardian ad litem's recommendation not to be worthy of consideration or, alternatively, entitled to less weight than the views of the Maples. The guardian ad litem is, however, appointed and present solely to represent L.L.'s best interests.
Reversed and remanded.
Judges MCGEE and TYSON concur.
*** Converted from WordPerfect ***