IN THE MATTER OF: Wilkes County
K.F. and M.F. Nos. 01 J 159, 160 &n
bsp;
Paul W. Freeman, Jr., for petitioner-appellee.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
respondent-appellant-mother.
M. Victoria Jayne, for respondent-appellant-father.
CALABRIA, Judge.
Respondent-mother and respondent-father (collectively
“respondents”) appeal from a permanency planning order relieving
the Wilkes County Department of Social Services (“DSS”) from
efforts to reunify the minor children, K.F. and M.F., with
respondents, approving a permanent plan of adoption, and initiating
proceedings to terminate respondents' parental rights. We affirm.
K.F. and M.F. (the “children”) were born to respondents in
Massachusetts on 11 January 2000 and 15 February 2001 respectively.
Shortly after M.F.'s birth, respondents moved from Massachusetts to
North Carolina. In October 2001, at age eight-months, M.F. weighed
approximately twelve pounds, and although hospitalized for a
failure to thrive, bruises were observed on her body and a fullbody x-ray showed fractures in her ribs and left arm, all in
various stages of healing. Respondents maintained that M.F.'s
injuries had occurred in day-care and that M.F.'s bruises were
caused by K.F. The children were placed in the legal custody of
DSS, but no charges of child abuse were filed against respondents.
Respondents stipulated to neglect and entered voluntary child
support agreements, each agreeing to pay $163 per month.
Respondents also agreed to follow the directives in DSS' “Family
Services Case Plan.” According to the plan, respondents were to
obtain stable employment, retain a stable residence, pay child
support, attend parenting classes, and obtain psychological
evaluations and IQ tests.
The children were placed together in a foster home, and in
November 2001, after approximately one-month in foster care, they
each underwent developmental evaluations. M.F. gained
approximately four pounds and her appetite improved. Although, her
learning, behavior, and motor skills were still below average, her
foster parents reported she had improved in those areas. K.F.'s
learning, behavior, and motor skills were also below average. As
with M.F., the foster parents reported K.F. had made substantial
improvements under their care. The results of a second evaluation
in August 2002 were favorable. K.F. no longer showed indications
of a failure to thrive, both children's learning, behavior, and
motor skills improved significantly, and both children moved from
below average to an average range for their respective age groups.
DSS agreed to investigate a relative placement for thechildren in view of respondents' desire for placement of the
children with the maternal-grandmother and paternal-grandfather
(the “grandparents”), who were co-habitating. However,
Massachusetts authorities denied placement of the children with the
grandparents due to the paternal-grandfather's criminal record.
After the children had been in DSS custody for twelve months, a
permanency planning hearing was scheduled. The hearing was held 22
January 2003 and 13 June 2003.
On 22 January 2003, the first day of the permanency planning
hearing, respondents' social worker (the “social worker”) reported
on respondents' progress. Between October 2001 and January 2003,
respondents each had three to four jobs and respondent-mother was
currently unemployed due to pregnancy. During the same time
period, respondents changed residences twice and were presently
$345 in arrears in rent payments for their current residence.
Respondent-mother's last child support payment was received 24
October 2002. As a result of missing payments, she was $428 in
arrears in her support payments. Respondent-father's payments
were also in arrears. His last child support payment was received
25 September 2002, and his arrearage totaled $621. Respondents
successfully completed their parenting classes. Additionally, both
obtained psychological evaluations and took their IQ tests.
Their evaluating psychologists recommended respondent-mother
but not respondent-father receive additional counseling.
Respondent-mother failed to attend the counseling sessions, stating
she did not realize the sessions were mandatory. Both compliedwith DSS guidelines, by visiting K.F. and M.F. for one hour each
month.
By 13 June 2003, the second day of the hearing, several
circumstances changed. Respondent-mother moved to Massachusetts to
stay with her mother, the maternal-grandmother, pending the birth
of respondents' third child (the “baby”). Respondent-father moved
to Massachusetts, obtained a job, and started residing in his
mother's home. In March 2003, the baby was born. One week after
birth, the baby was placed in the legal custody of the
Massachusetts Department of Social Services (“MA DSS”).
Immediately thereafter, respondents started residing with
respondent-father's grandmother and were residing with her as of
the second day of the hearing. In an effort to comply with the
earlier recommendation, respondent-mother started counseling
sessions, and respondents planned to obtain their own apartment.
Additionally, both respondents were employed and collectively
earned eighteen dollars per hour; yet, neither had paid child
support for the children since approximately three months prior to
the first day of the hearing. Although respondents contacted DSS
twice, they never scheduled visitation, never visited either child
after moving to Massachusetts, and never indicated they wanted
custody or were prepared to resume custody of the children.
On 27 August 2003, the trial court entered a permanency
planning order relieving DSS from efforts to reunify the children
with respondents, approving a permanent plan of adoption, and
initiating proceedings to terminate respondents' parental rights. From this order, respondents appeal separately. With the exception
of the first issue, we address respondents' assertions
collectively.
I. Respondent-Mother's Motion for a Continuance
Respondent-mother asserts the trial court erred by denying her
motion for a continuance of the permanency planning hearing based
on her attorney's late notification of his appointment as her
counsel. Under N.C. Gen. Stat. § 1A-1, Rule 40(b), “[a]
continuance may be granted only for good cause shown and upon such
terms and conditions as justice may require.” “A motion for a
continuance is addressed to the sound discretion of the trial
court[,] . . . is generally not favored[,] [and] . . . is not
reviewable absent a clear abuse of discretion. The burden of
showing sufficient grounds for a continuance rests with the party
seeking it.” Pickard Roofing Co. v. Barbour, 94 N.C. App. 688,
691-92, 381 S.E.2d 341, 343 (1989) (citations omitted). With
regard to juvenile proceedings,
[t]he court may, for good cause, continue the
hearing for as long as is reasonably required
to receive additional evidence, reports, or
assessments that the court has requested, or
other information needed in the best interests
of the juvenile and to allow for a reasonable
time for the parties to conduct expeditious
discovery. Otherwise, continuances shall be
granted only in extraordinary circumstances
when necessary for the proper administration
of justice or in the best interests of the
juvenile.
N.C. Gen. Stat. § 7B-803 (2003).
In the instant case, the trial court did not request
additional evidence or indicate additional information was neededfor the best interests of the children. The motion neither
asserted that the parties required a reasonable time for
expeditious discovery, nor did it direct the trial court's or this
Court's attention to any extraordinary circumstances necessary for
the proper administration of justice or for the best interests of
the children. Moreover, the trial court had appointed respondent-
mother's counsel on 18 November 2002. Therefore, respondent-mother
should have been aware of her counsel's appointment as of 18
November 2002, providing her ample time to contact him prior to the
first day of the hearing, 22 January 2003, which she failed to do.
Furthermore, we note the second day of the hearing was delayed
until 13 June 2003, approximately five-months after the first day,
again providing respondent-mother and her counsel ample time to
remedy any perceived disadvantage due to her counsel's late
awareness of his appointment. Accordingly, the trial court did not
abuse its discretion in denying respondent-mother's motion for a
continuance.
II. The Rule 52(a)(1) Requirement to Find the Facts Specially
Respondents assert the trial court erred by referencing a
social worker's court summary in finding of fact fifteen in lieu of
specially finding the facts regarding DSS' use of reasonable
efforts to eliminate the need for placement of the minor children.
We disagree.
North Carolina General Statutes § 1A-1, Rule 52(a)(1) requires
that “[i]n all actions tried upon the facts without a jury[,] . .
. the court shall find the facts specially and state separately itsconclusions of law thereon and direct the entry of the appropriate
judgment.” In applying Rule 52(a)(1), we remain cognizant that
“[t]here are two kinds of facts, ultimate facts and evidentiary
facts. Ultimate facts are the final facts required to establish a
[petitioner's case] or a [respondent's] defense, whereas
evidentiary facts are subsidiary facts which tend to prove the
ultimate facts.” In re Brenner, 83 N.C. App. 242, 250, 350 S.E.2d
140, 146 (1986).
Rule 52(a) does not require a recitation of
the evidentiary and subsidiary facts required
to prove the ultimate facts[.] [Rather,] it .
. . require[s] specific findings of the
ultimate facts established by the evidence,
admissions and stipulations which are
determinative of the questions involved in the
action and essential to support the
conclusions of law reached.
Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982).
Therefore, to comply with Rule 52(a)(1), the trial court's findings
of fact must constitute “a specific statement of the facts on which
the rights of the parties are to be determined and . . . must be
sufficiently specific to enable an appellate court to review the
decision and test the correctness of the judgment.” Id., 305 N.C.
at 451, 290 S.E.2d at 657.
Respondents base their assertion that finding of fact number
fifteen does not comply with Rule 52(a)(1) on In re Harton, 156
N.C. App. 655, 577 S.E.2d 334 (2003). In In re Harton, this Court
concluded the trial court erred by failing to find the ultimate
facts because it made a single finding of evidentiary fact and
merely adopted the DSS and guardian ad litem reports as itsremaining findings. Id., 156 N.C. App. at 660, 577 S.E.2d at 337.
See also In re J.S., __ N.C. App. __, __, 598 S.E.2d 658, 660
(2004) (holding the trial court's findings of fact, including one
finding consisting only of an incorporation of court reports, were
not findings of ultimate fact sufficiently specific to allow
meaningful appellate review).
In full, finding of fact number fifteen states, “As more
particularly appears from the [social worker's] Court Summary,
[DSS] has utilized reasonable efforts to eliminate the need for
placement of the children.” In contrast to In re Harton, the trial
court in the instant case did not merely adopt DSS' court summary
as its finding of fact; rather, the trial court referenced DSS'
court summary as the source of the particular evidentiary facts on
which the court based its independent finding of ultimate fact that
“[DSS] has utilized reasonable efforts to eliminate the need for
placement of the children.” See generally N.C. Gen. Stat. § 7B-507
(2003) (requiring “findings as to whether [DSS] has made reasonable
efforts to eliminate the need for placement of the juvenile”).
Similarly, we reject respondents' contention that the trial court
violated Rule 52(a)(1) in finding of fact ten, by referencing the
children's developmental evaluations “for more specific Findings of
Fact[,]” before summarizing the children's developmental progress
in foster care and finding “that removal of the children from their
[foster parents' home] and plac[ing] [them] into the home of the
[respondents] would be detrimental to the children's well-being and
would likely cause significant regression in the children'sdevelopmental progress.” Although the better practice is to
summarize pertinent portions of DSS court summaries and
evaluations, we hold the trial court in the instant case made
independent findings of ultimate fact specific enough to allow
meaningful appellate review, and accordingly, did not violate Rule
52(a)(1)'s requirement, to “find the facts specially,” by
referencing the court summary in finding of fact number fifteen and
the children's developmental evaluations in finding of fact ten.
III. Challenged Findings of Fact and Conclusions of Law
Respondents assert: (1) findings of fact twelve, thirteen, and
fifteen are not supported by competent evidence and (2) conclusions
of law two and five are not supported by the findings of fact. It
is well established that findings of fact supported by competent
evidence are conclusive on appeal, even if there is evidence to
support a contrary finding. In re Isenhour, 101 N.C. App. 550,
553, 400 S.E.2d 71, 73 (1991). Furthermore, findings of fact not
challenged on appeal “are deemed supported by competent evidence.”
In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
It is equally well established that conclusions of law will be
upheld if supported by the findings of fact. In re Helms, 127 N.C.
App. 505, 511, 491 S.E.2d 672, 676 (1997).
As discussed above, finding of fact fifteen states that “[DSS]
has utilized reasonable efforts to eliminate the need for placement
of the children.” “Reasonable efforts” is defined by N.C. Gen.
Stat. § 7B-101(18) (2003) as “[t]he diligent use of preventive or
reunification services by a department of social services when ajuvenile's remaining at home or returning home is consistent with
achieving a safe, permanent home for the juvenile within a
reasonable period of time.” Competent evidence shows DSS made
reasonable efforts to eliminate the need for placement of the
children by presenting respondents with a “Family Services Case
Plan” and aiding respondents in the plan's implementation so they
might improve the conditions that led to DSS' removal of the
children. DSS instructed respondents to: (1) maintain stable jobs
and a stable residence; (2) attend parenting classes; (3) receive
psychological evaluations and comply with appropriate follow-up
counseling; (4) provide financial support for the children through
voluntary support payments; and (5) visit the children monthly.
Respondents also argue findings of fact twelve and thirteen
are not supported by competent evidence. Finding of fact number
twelve states:
[Respondents] have made little progress in
remedying those conditions which led to the
removal of the children from [respondents']
home. Neither [respondent] accepts
responsibility for the children's removal. It
is apparent that neither [respondent] is
currently able to provide suitable care for
the children in a safe, permanent home.
Furthermore, finding of fact number thirteen states:
Now that the [respondents] are residing in the
State of Massachusetts, continued efforts to
work with the [respondents] in an attempt to
eliminate the need for placement would be
futile. This is supported by the
[respondents'] failure to recognize any
responsibility which they might have to the
children and the fact that the [respondents]
have now had another child removed from their
care by the State of Massachusetts.
The evidence reflects that while residing in North Carolina,
respondents attended parenting classes, received psychological
evaluations and IQ tests, but failed to maintain stable jobs or a
stable residence. After moving to Massachusetts, respondents
changed residences and on the second day of the hearing were
planning another change of residence. On the first day of the
hearing, respondents were in arrears paying child support, and
despite respondent-father's employment since February 2003 in
Massachusetts and respondent-mother's employment in March 2003,
neither resumed paying child support. Furthermore, respondents
indicated that they did not want custody of the children but rather
wanted the children placed with the grandparents. Moreover,
testimony by a developmental pediatrician indicated that the
children thrived in their foster parents' home and cautioned that
relocation of the children into respondents' home would be
detrimental to the developmental progress they achieved in foster
care. Accordingly, competent evidence supports findings of fact
twelve and thirteen.
Conclusion of law two states, “It is contrary to the best
interests and welfare of the juveniles to be returned to the home
of either [respondent].” Conclusion of law five states, “Further
efforts to reunify the children with [respondents] would be futile
and inconsistent with the children's need for a safe, permanent
home within a reasonable period of time.” As discussed above,
competent evidence in the record supports findings of fact twelve,
thirteen, and fifteen, and we hold these findings of fact alongwith the unchallenged findings of fact support conclusions of law
two and five.
IV. The Findings of Fact Required Under N.C. Gen. Stat. § 7B-907
Respondents assert the trial court erred by failing to
specially make the findings of fact required under N.C. Gen. Stat.
§ 7B-907 (2003). As stated in N.C. Gen. Stat. § 7B-907(a), “[t]he
purpose 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.” To this end, N.C. Gen. Stat. § 7B-
907(b) provides in pertinent part that:
At the conclusion of the [permanency planning]
hearing, if the juvenile is not returned home,
the court shall consider the following
criteria and make written findings regarding
those that are relevant:
(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 plan hearing made reasonable
efforts to implement the permanent plan for
the juvenile;
(6) Any other criteria the court deems necessary.
The trial court's permanency planning order need not specifically
identify any of the findings of fact
as being made pursuant to any of the §
7B-907(b) factors, . . . as long as the trial
court makes findings of fact on the relevant §
7B-907(b) factors and does not “simply 'recite
allegations,'” but rather “through processes
of logical reasoning from the evidentiary
facts find[s] the ultimate facts essential to
support the conclusions of law.”
In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004)
(quoting In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337
(2003)).
Regarding N.C. Gen. Stat. § 7B-907(b)(1), findings of fact
twelve and thirteen, discussed above, clearly indicate that
returning the children to respondents' home within the six-month
period would be impossible because “efforts . . . to eliminate the
need for placement would be futile” and returning the children to
conditions similar to those that necessitated their removal would
not be in their best interests. With respect to N.C. Gen. Stat. §
7B-907(b)(2), finding of fact six sets forth that “the State of
Massachusetts . . . notified [DSS] that the children's placement
into the State of Massachusetts was denied.” Therefore, placement
of the children with the grandparents was precluded, and no other
relatives were proffered as placements or came forward to request
custody.
With regard to N.C. Gen. Stat. § 7B-907(b)(3), finding of fact
seventeen states that “[t]here are no barriers to the adoption of
the children[,]” which indicates adoption should be pursuedespecially in light of findings of fact six, twelve, and thirteen.
Concerning N.C. Gen. Stat. § 7B-907(b)(4), finding of fact sixteen
states that “[t]he children are doing well in their present foster
care placement[,]” indicating no change in the children's placement
is necessary. Because the hearing, sub judice, was the initial
permanency planning hearing, N.C. Gen. Stat. § 7B-907(b)(5) does
not apply, and N.C. Gen. Stat. § 7B-907(b)(6) merely gives the
trial court discretion to consider other criteria it deems
necessary. Accordingly, the trial court properly made the findings
required under N.C. Gen. Stat. § 7B-907(b).
We have carefully considered respondents' remaining arguments
and find them to be without merit. For the foregoing reasons, the
trial court's order is hereby affirmed.
Affirmed.
Judge HUNTER concurs.
Judge LEVINSON concurs in the result.
Report per Rule 30(e).
*** Converted from WordPerfect ***