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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 THE MATTER OF: E.C.
Filed: 15 November 2005
1. Appeal and Error_preservation of issues_neglected child_guardianship and visitation
Issues concerning guardianship and visitation for a neglected child were preserved for appeal
despite respondent's failure to object at the dispositional hearing.
2. Child Abuse and Neglect_appointment of guardian_timing
A guardian may be appointed by the trial court at any time during juvenile proceedings, including
the dispositional hearing, when it finds such appointment to be in the juvenile's best interest, as here.
3. Child Abuse and Neglect_appointment of guardian_findings
The trial court was not required to make findings pursuant to N.C.G.S. § 7B-507(b) when
appointing a guardian for a neglected child where the guardianship was not the permanent plan and did not
end DSS's duty to continue reunification efforts with the parent.
4. Child Abuse and Neglect_guardianship_visitation
Awarding visitation for a neglected child is a judicial function which may not be delegated to the
custodian of the child, although the trial court may grant some good faith discretion to suspend visitation,
subject to notice and review by the court. The trial court here erred by failing to include an appropriate
visitation plan in its dispositional order for the neglected child.
5. Child Abuse and Neglect_adjudication of neglect_circumstances from other county
In adjudicating a child neglected, a district court is not limited to considering only those
circumstances occurring within its district; otherwise, abusive and neglectful parents could avoid court
intervention by simply moving from county to county. Sufficient evidence was presented here to support
the conclusion of neglect
6. Child Abuse and Neglect_removal from custody_one of three grounds required_findings
insufficient for dependency
In order to remove a juvenile from the parents' custody the trial court must determine that the
juvenile is abused, neglected, or dependent, and a finding of any of the three grounds will support the
court's decision. Although this respondent appealed on somewhat different grounds, and there was
sufficient evidence of neglect, the trial court erred by concluding that a child was dependent without
findings of fact concerning respondent's ability to provide care, supervision or an alternative arrangement
Appeal by respondent mother from order entered 28 June 2004 by Judge
J. Kent Washburn in Alamance County District Court. Heard in the Court
of Appeals 21 September 2005.
Jamie L. Hamlett, for petitioner-appellee Alamance County Department
of Social Services.
Richard Croutharmel, for respondent-appellant.
M.C. (respondent) appeals from the trial court's order
adjudicating her minor child, E.C. (the child), neglected and dependent
and awarding legal guardianship of the child to Cecilia Pointer (Ms.
Pointer) with visitation in the discretion of Ms. Pointer. We affirm in
part, vacate in part, and remand.
Respondent gave birth to the child on 21 March 2003. The child was
born with cocaine present within her system. The Orange County
Department of Social Services (DSS) determined respondent needed case
management services and assigned a social worker to the case. Respondent
entered Sunrise, a substance abuse treatment program, on 11 August
2003. Respondent admitted she was unable to complete the Sunrise program
because she didn't want to follow directions and engaged in
confrontations with others in the program. Respondent had enrolled in
two other substance abuse treatment programs prior to attending Sunrise.
She completed a twenty-eight day program designed to prepare an
individual to enter into a long-term program, but failed to complete the
subsequent long-term program because she chose not to.
In October 2003, respondent and the child moved in with Ms. Pointer,
respondent's cousin, in Alamance County. Respondent signed an agreement
granting Ms. Pointer temporary custody of the child. Respondent agreed
not to go anywhere alone with the child. Ms. Pointer was granted
temporary custody of the child until 18 December 2003. Difficulties arose between Ms. Pointer and respondent about a month
after respondent and the child moved in with her. Respondent left the
home for several days at a time leaving the child with Ms. Pointer. When
respondent returned to the home, she would sleep for long periods of time
with the child in the bed with her. Respondent would not awaken when the
child cried. Respondent kept the room where she and the child stayed in
a filthy condition.
On 7 December 2003, respondent came home appearing to be high or
drunk. Ms. Pointer and respondent argued after Ms. Pointer asked
respondent to clean up her room. Ms. Pointer was concerned about the
child living in the filthy room. Respondent threatened to remove the
child from Ms. Pointer's home. Respondent told Ms. Pointer she was going
to a crack house with the child. Ms. Pointer testified she did not
believe respondent would take the child to a crack house. Ms. Pointer
called the police to prevent respondent from removing the child from the
home. This incident led DSS to file a petition alleging neglect and
dependency of the child.
On 10 December 2003, the trial court conducted a non-secure custody
hearing and continued the child in non-secure custody. Additional non-
secure custody hearings were held on 17 December 2003, 21 January 2004,
4 February 2004, 25 February 2004, and 31 March 2004. At each hearing,
the trial court ordered the child to remain in non-secure custody. The
child was adjudicated neglected and dependent on 11 May 2004. The trial
court entered a dispositional order on 26 May 2004 and awarded legal
guardianship of the child to Ms. Pointer. Respondent appeals.
The issues on appeal are whether the trial court erred by: (1)
awarding guardianship of the child to Ms. Pointer; (2) orderingvisitation between respondent and the child at the discretion of Ms.
Pointer; (3) concluding respondent had neglected the child; and (4)
concluding the child was dependent as to respondent.
III. Preservation of Error
 DSS argues that respondent failed to preserve the assignments of
error regarding legal guardianship and visitation for our review because
she failed to object to the trial court's award of guardianship and its
ruling on visitation at the conclusion of the trial. We disagree.
Rule 10(a) of the North Carolina Rules of Appellate Procedure
provides that upon any appeal duly taken from a final judgment any party
to the appeal may present for review, by properly making them the basis
of assignments of error, the questions whether the judgment is supported
by the verdict or by the findings of fact and conclusions of law . . . .
N.C.R. App. P. 10(a)(1) (2004). Respondent assigns error to the trial
court's order granting Ms. Pointer legal guardianship of the child, as
well as the visitation the trial court awarded respondent. Respondent's
failure to object at the dispositional hearing is not a failure to
preserve these issues for appeal. Id. Nor is a party required to object
at the hearing or raise a motion in order to preserve this type of
question for appellate review. Id. DSS's argument is overruled.
IV. Legal Guardianship
 Respondent contends: (1) chapter 7B of the North Carolina
General Statutes does not authorize awarding guardianship at the
dispositional hearing following an adjudication; and (2) awarding
guardianship is tantamount to ceasing reunification efforts and thus
requires findings pursuant to N.C. Gen. Stat. § 7B-507(b), which was not
done in this case. We disagree. N.C. Gen. Stat. § 7B-600 governs the appointment of a guardian. It
provides that [i]n any case when no parent appears in a hearing with the
juvenile or when the court finds it would be in the bests interests of
the juvenile, the court may appoint a guardian of the person for the
juvenile. N.C. Gen. Stat. § 7B-600(a) (2003) (emphasis supplied). This
statute permits the trial court to appoint a guardian at any time during
the juvenile proceedings, including the dispositional hearing, when it
finds such appointment to be in the juvenile's best interests. The
dispositional order in this case demonstrates the court found
guardianship to be in the child's best interest following the
presentation of all the evidence at the adjudicatory hearing and after
review of DSS's and guardian ad litem's reports. Respondent did not
appear at the dispositional hearing. No parent appear[ing] provide the
court with additional grounds to appoint a guardian under the statute.
Id. Respondent's contention is overruled.
B. Guardianship Equates to Ceasing Reunification
 Respondent contends if the trial court has authority to award
guardianship at the dispositional hearing such an award is tantamount to
ceasing reunification efforts, and the trial court is required to make
findings of fact pursuant to N.C. Gen. Stat. § 7B-507(b). Respondent
asserts the trial court's failure to make such findings was reversible
error. We disagree.
Respondent argues the court's award of guardianship here is
equivalent to the cessation of reunification efforts and that challenging
guardianship is more difficult than the mere grant of legal custody.
Under N.C. Gen. Stat. § 7B-600(b), the court may not terminate a legal
guardianship absent a showing that the relationship between the guardian
and a juvenile is no longer in the juvenile's best interest, the guardianis unfit, has neglected their duties, or is unwilling or unable to
continue the guardianship. Respondent incorrectly interprets this
portion of the statute. Only where guardianship is the permanent plan
for the juvenile may a court not terminate the guardianship or
reintegrate the minor into a parent's home, absent a finding that the
relationship between the juvenile and the guardian is no longer in the
juvenile's best interest, the guardian is unfit, negligent, or unable to
continue. N.C. Gen. Stat. § 7B-600(b). The dispositional order does not
make Ms. Pointer's guardianship the permanent plan. The award of
guardianship does not cease DSS's duty to continue reunification efforts
with respondent. The trial court was not required to make findings
pursuant to N.C. Gen. Stat. § 7B-507(b). This assignment of error is
 Respondent contends the trial court erred in ordering visitation
between respondent and the child to be at the discretion of the person
vested with physical custody of the child. We agree.
Section 7B-905 of the Juvenile Code provides in pertinent part:
Any dispositional order under which a juvenile is
removed from the custody of a parent, guardian,
custodian, or caretaker, or under which the
juvenile's placement is continued outside the home
shall provide for appropriate visitation as may be
in the best interests of the juvenile and consistent
with the juvenile's health and safety. If the
juvenile is placed in the custody or placement
responsibility of a county department of social
services, the court may order the director to
arrange, facilitate, and supervise a visitation plan
expressly approved by the court. If the director
subsequently makes a good faith determination that
the visitation plan may not be in the best interests
of the juvenile or consistent with the juvenile's
health and safety, the director may temporarily
suspend all or part of the visitation plan. The
director shall not be subjected to any motion toshow cause for this suspension, but shall
expeditiously file a motion for review.
N.C. Gen. Stat. § 7B-905(c) (2003) (emphasis supplied). Where custody is
removed from a parent, the court must conduct a review hearing within
ninety days from the date of the dispositional hearing. N.C. Gen. Stat.
§ 7B-906(a) (2003). At the review hearing, the court must consider and
make relevant findings of fact regarding an appropriate visitation plan.
N.C. Gen. Stat. § 7B-906(c)(6) (2003). The trial court maintains the
responsibility to ensure that an appropriate visitation plan is
established within the dispositional order. Where custody is granted to
the county DSS, some discretion may be granted to the DSS director to
arrange, facilitate, and supervise a visitation plan; however, such plan
must be expressly approved by the court. N.C. Gen. Stat. § 7B-905(c).
The DSS director may also temporarily suspend all or part of the
visitation plan but only upon a good faith determination that the
visitation plan may not be in the best interests of the juvenile or
consistent with the juvenile's health and safety. Id.
Here, the trial court's dispositional order failed to include an
appropriate visitation plan
. Instead, the trial court ordered that
visitation between respondent and her child
was to be allowed in the
discretion of the guardian.
The awarding of visitation of a child is
an exercise of a judicial function, and a trial court may not delegate
this function to the custodian of a child. In re Stancil, 10 N.C. App.
545, 552, 179 S.E.2d 844, 849 (1971). The trial court should not assign
the granting of this privilege of visitation to the discretion of the
party awarded custody of the child. Id. at 551-52, 179 S.E.2d at 849.
In the absence of findings that the parent has forfeited their right
to visitation or that it is in the child's best interest to denyvisitation the court should safeguard the parent's visitation rights by
a provision in the order defining and establishing the time, place[,] and
conditions under which such visitation rights may be exercised. Id. at
552, 179 S.E.2d at 849. Here, the trial court's order contains no such
findings of fact.
We conclude the trial court erred by failing to include an
appropriate visitation plan in its dispositional order. An appropriate
visitation plan must provide for a minimum outline of visitation, such as
the time, place, and conditions under which visitation may be exercised.
See id. The trial court may also in its order, however, grant some good
faith discretion to the person in whose custody the child is placed to
suspend visitation if such visitation is detrimental to the child. See
Woncik v. Woncik, 82 N.C. App. 244, 250, 346 S.E.2d 277, 281 (1986)
(holding that the trial court did not delegate its judicial authority by
including in its custody order a provision allowing the child's
custodian, upon notice to the court, to suspend a non-custodial parent's
visitation privilege, pending a court hearing, if the non-custodial
parent during visitation engaged in behavior detrimental to the child's
welfare); compare N.C. Gen. Stat. § 7B-905(c) (allowing termination or
suspension of visitation by the director of DSS upon a good faith
determination that the visitation plan may not be in the best interests
of the juvenile or consistent with the juvenile's health and safety).
Suspension of visitation remains subject to notice and review by the
The trial court improperly gave Ms. Pointer discretion over
visitation instead of making the required findings of fact. We vacate
that portion of the dispositional order and remand to the trial court for
proceedings regarding visitation consistent with this opinion.
VI. Adjudication of Neglect
 Respondent next argues the trial court erred in concluding she
had neglected the child. We disagree.
Respondent asserts acts she committed in counties other than
Alamance County should not be used to make a judicial determination of
neglect in Alamance County. Respondent contends the Alamance County
District Court exceeded its authority when it adjudicated the child
neglected based in part on alleged acts or omissions committed by her in
Orange County, particularly when the Orange County DSS took no judicial
action. Respondent cites no law to support this contention and we fail
to find any authority to support it.
The district court has exclusive, original jurisdiction over any
case involving a juvenile alleged to be abused, neglected, or dependent.
N.C. Gen. Stat. § 7B-200(a) (2003). A proceeding in which a juvenile is
alleged to be abused, neglected, or dependent may be commenced in the
district in which the juvenile resides or is present. N.C. Gen. Stat.
§ 7B-400 (2003).
A neglected juvenile is defined as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or who
has been abandoned; or who is not provided necessary
medical care; or who is not provided necessary
remedial care; or who lives in an environment
injurious to the juvenile's welfare; or who has been
placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2003). [T]his Court has consistently
required that there be some physical, mental, or emotional impairment of
the juvenile or a substantial risk of such impairment as a consequence of
the failure to provide 'proper care, supervision, or discipline.' In re
Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quotingIn re Thompson, 64 N.C. App. 95, 101, 306 S.E.2d 792, 796 (1983)). The
allegations in a petition alleging abuse, neglect, or dependency of a
juvenile must be proven by clear, cogent, and convincing evidence. N.C.
Gen. Stat. § 7B-805 (2003). In adjudicating a child neglected, a
district court is not limited to considering only those circumstances
occurring within its district. To hold otherwise would allow abusive and
neglectful parents to avoid court intervention by simply moving from
county to county.
Sufficient evidence was presented to support the trial court's
conclusion that respondent neglected the child. Respondent kept the
child in a filthy room with clothes and dirty diapers strewn about.
Respondent would leave the home for several days at a time. Upon her
return, she would sleep for long periods of time with the child in the
bed and would not awaken when the child cried. Evidence tended to show
respondent came home drunk or under the influence of drugs on 7 December
2003 and attempted to remove the child from the home in the middle of the
night. Respondent was unable to complete the Sunrise Substance Abuse
Treatment Program because of frequent altercations with other residents.
DSS presented clear, cogent, and convincing evidence from which the trial
court could find and conclude the child was at risk of some physical,
mental, or emotional impairment due to respondent's failure to provide
proper care and supervision for and neglected the child. This assignment
of error is overruled.
VII. Adjudication of Dependency
 Respondent next argues the trial court erred in concluding the
child was dependent. We agree.
A finding of neglect alone is sufficient to support the trial
court's decision to divest a parent of custody of their child. In orderto remove a juvenile from the parents' custody the trial court must
determine that the juvenile is abused, neglected, or dependent. N.C.
Gen. Stat. § 7B-503(a) (2003) (emphasis supplied). Throughout Chapter 7B
of the Juvenile Code, the phrase abused, neglected, or dependent is
stated in the disjunctive, not the conjunctive. See, e.g., N.C. Gen.
Stat. § 7B-200, § 7B-406, § 7B-500, § 7B-602, and § 7B-805. In its
elementary sense the word 'or,' as used in a statute, is a disjunctive
particle indicating that the various members of the sentence are to be
taken separately[.] Grassy Creek Neighborhood Alliance, Inc. v. City of
Winston-Salem, 142 N.C. App. 290, 297, 542 S.E.2d 296, 301 (2001)
(citations and internal quotation marks omitted). Giving the statute its
natural and ordinary meaning, a finding of any of the three grounds by
the trial court will support its decision to continue custody of the
child with Ms. Pointer. See id. However, respondent appeals from an
adjudication of neglect and dependency and not a termination of her
parental rights on either ground. Since these adjudications may serve as
the basis for future adjudications, we address this issue.
A dependent juvenile is defined as [a] juvenile in need of
assistance or placement because the juvenile has no parent, guardian, or
custodian responsible for the juvenile's care or supervision or whose
parent, guardian, or custodian is unable to provide for the care or
supervision and lacks an appropriate alternative child care arrangement.
N.C. Gen. Stat. § 7B-101(9) (2003). Under this definition, the trial
court must address both (1) the parent's ability to provide care or
supervision, and (2) the availability to the parent of alternative child
care arrangements. In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403,
406 (2005). The trial court made no findings of fact concerning
respondent's ability to provide care or supervision for the child or thatrespondent lacked an alternative child care arrangement to support its
conclusion the child was dependent. Id.
The trial court did not err in awarding guardianship to Ms. Pointer.
We affirm the trial court's conclusion that the child is neglected. The
trial court erred in awarding visitation between respondent and the child
at the discretion of Ms. Pointer. We vacate those portions of the trial
court's order awarding visitation and finding the child dependent, and
proceedings regarding visitation and dependency consistent
with this opinion.
Affirmed in part, Vacated in part, and Remanded.
Judges HUNTER and STEELMAN concur.
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