IN THE MATTER OF: Burke County
T.S. No. 02 J 27
Stephen M. Schoeberle, for the Burke County Department of
Social Services, petitioner-appellee.
Mary R. McKay, for the Guardian ad Litem, petitioner-appellee
Michael E. Casterline, for respondent-appellant.
CALABRIA, Judge.
J.S. (“respondent”), the father of the minor child, T.S.,
appeals from a permanency planning review order, which changed the
minor child's placement plan to adoption, thereby removing the
prior concurrent plan of placing T.S. with N.S., respondent's
mother (the “paternal grandmother”), a resident of Hardyville,
Virginia. We affirm.
T.S. was born on 21 December 2000, and was placed in non-
secure custody with the Henderson County Department of Social
Services (the “Henderson DSS”) on 19 January 2002, upon allegations
of neglect and dependency against B.G., the minor child's mother,
and respondent. The Henderson DSS filed a juvenile petition on 22January 2002, alleging B.G. had: (1) given T.S. to a man she had
known for less than one hour without authorizing the man to obtain
medical care for T.S.; (2) “offered to give the child to [this]
current caregiver in exchange for his truck”; and (3) failed to
provide a non-hazardous home for T.S., who was asthmatic and had
suffered “repeated episodes of pn[eu]monia due to smoke in [the]
mother's residence.”
After a 28 January 2002 hearing on the need for continued non-
secure custody, the district court continued T.S. in non-secure
custody and authorized the Henderson DSS to place him with J.G.,
B.G.'s mother (the “maternal grandmother”). Respondent first
appeared at a 5 February 2002 hearing where all parties signed a
“Memorandum of Consent Judgement.” Pursuant to the memorandum, the
court entered a “Consent Order” adjudicating T.S. dependent and
transferring venue to Burke County for disposition. The order
maintained custody of T.S. with the Henderson DSS and placement
with the maternal grandmother pending the transfer of custody to
the Burke County Department of Social Services (“DSS”).
At a 28 February (2002) hearing, the Burke County District
Court acknowledged the transfer of venue and continued disposition
until 28 March 2002. At subsequent hearings, the court ordered
T.S. removed from the maternal grandmother's home, finding that
“continuation in that home would be contrary to the juvenile's
welfare,” and continued disposition until 12 September 2002. In an
order following the 12 September 2002 hearing, the district court
noted that B.G. intended “to relinquish her parental rights to thejuvenile.” Also, upon findings of respondent's December 2001
incarceration for domestic violence and additional pending felony
charges in Buncombe County, as well as the “unfavorable” results of
respondent's home study, the court concluded that DSS had “made
reasonable efforts to reunite the juvenile with his parents, but
such reunification [was] not in the juvenile's best interests[;] .
. . any further such efforts would be futile and not consistent
with the juvenile's health, safety, and need for a safe, permanent
home within a reasonable period of time.” The court ceased
reunification efforts and scheduled a permanency planning hearing
for 10 October 2002. The court also expressed its approval of
T.S.'s existing foster placement.
After the 10 October 2002 permanency planning hearing, the
court found that T.S. was twenty-one months old but did not yet
speak and that B.G. had formally relinquished her parental rights.
Regarding respondent's suitability as a placement for T.S., the
court found as follows:
The juvenile has resided with [respondent]
only one month during his life. [Respondent]
has not paid any child support, although no
action for such has been filed against him.
He still has a pending criminal charge against
him in Buncombe County. He has no reliable
transportation, and he still resides with his
girlfriend. He states that he has
appointments for a psychological evaluation
and parenting classes, but he has not started
either yet. He has proposed his mother for
possible placement of the juvenile.
Upon these findings, the court ordered: (1) a medical evaluation
for T.S.; (2) a permanent plan of “adoption or custody/guardianshipwith a relative”; and (3) DSS to “cause a home study of the home of
[the paternal grandmother] to be done in Virginia.”
Following the 2 January 2003 permanency planning review
hearing, the court found respondent was “serving an active sentence
in the North Carolina Department of Correction[] with an expected
release date in August 2003.” Because the home study of the
paternal grandmother in Virginia remained pending, the court found
that DSS had not yet filed a petition to terminate respondent's
parental rights. The court maintained the permanent plan of
“adoption or custody/guardianship with a relative” and ordered DSS
to “continue to pursue a home study of the home of [the paternal
grandmother] in Virginia.”
After a 17 July 2003 review hearing, the court found that
respondent “expect[ed] to be released [from prison] in 25 days” but
had “no specific plans” thereafter and that T.S. was receiving
speech therapy following a developmental evaluation. Because the
paternal grandmother's home study remained pending, the court
maintained the status quo but ordered DSS to “expedite as much as
is possible” the paternal grandmother's home study. Following a 6
November 2003 review hearing, the court again entered an order
maintaining the permanent plan of “adoption or custody/guardianship
with a relative.” Regarding a potential placement with the
paternal grandmother in Virginia, the court found that DSS had made
“[a]n interstate request . . . for a home study . . . but [the]
request [had] not been received by the [proper] local agency . . .
.” Further, because the paternal grandmother's home study stillremained pending, DSS had “not filed a motion to terminate
[respondent's] parental rights, and such delay [was] reasonable.”
The court again ordered DSS to expedite the paternal grandmother's
home study.
Based on a 29 January 2004 review hearing, the court found:
[Respondent] continues to assert that [the
paternal grandmother] wants to have custody
and placement of the juvenile. She has not
expressed that herself since talking with a
social worker in April of 2003. Recent
attempts to contact her by [DSS] have resulted
in un-returned phone calls. A home study of
her residence in Virginia has not been
completed.
In addition to maintaining the permanent plan, the court ordered
DSS to expedite the paternal grandmother's home study “as much as
is possible” and to “inquire as to the status of that home study.”
The court further ordered the paternal grandmother to “communicate
her wishes to the Court in detail in writing prior to the next
review or appear in court that day.”
The paternal grandmother appeared at the 25 March 2004 review
hearing and informed the court she had received “a paper” regarding
the home study of her Virginia residence. She had twice attempted
to contact her local DSS but had received no response. After
questioning the paternal grandmother regarding her living
arrangements and her relationship to respondent and T.S., the court
entered an order on 30 March 2004, changing the permanent plan for
T.S. “to adoption solely[.]” The court based its decision upon the
following relevant findings:
3. The Court previously has determined that
[respondent] is not appropriate to havecustody of the juvenile, and [he] continues to
assert that his mother may be appropriate.
[DSS] has been trying to initiate a home study
of [the paternal grandmother's] residence
since October of 2002. Through no fault of
[the paternal grandmother], that home study
was not initiated until this month. However,
[she] has not appeared in court previously to
express her wishes, has not contacted [DSS] or
guardian ad litem, never has met the juvenile,
never has had any contact with the juvenile,
and has made no efforts to establish a
relationship with the juvenile.
4. [The paternal grandmother] has resided in
the same 2-bedroom home for the last 20 years.
Her daughter who has Crohn's Disease and her
grandson reside there with her. She has
contact by phone approximately 3 times per
month with [respondent] and face-to-face
contact approximately twice a year.
5. The juvenile has special needs for which
he requires ongoing care. He has resided in
the same foster home for 17 months, and his
foster parents have provided all of that care.
They are very committed to the juvenile and
wish to adopt him should he become available
for adoption.
6. The juvenile has a stable and long-lasting
relationship with his foster parents and no
relationship with his paternal grandmother or
any other paternal relatives.
7. The juvenile's case has been before the
Court since prior to March 28, 2002, more than
2 years ago. He is in need of permanence.
8. The juvenile's mother has relinquished him
for adoption and the revocation period has
expired. It is not possible to return the
juvenile to his parents immediately or within
6 months. No barriers to the adoption of the
juvenile are known to exist except that
[respondent's] parental rights have not been
terminated.
Upon these findings, the court concluded:
1. [DSS] has made reasonable efforts to
achieve a permanent home for the juvenile.
2. The permanent plan should be changed to
adoption solely, as adoption is the plan most
likely to achieve a permanent home for the
juvenile within a reasonable period of time. 3. The best interests of the juvenile would
be served by the entry of the following order
[changing the permanent plan to adoption].
Accordingly, it ordered DSS to “take all steps necessary to achieve
the plan” of adoption and expressed its approval of T.S.'s “current
prospective adoptive placement.” From this order, respondent
appeals.
Respondent first asserts that the district court erred in
withdrawing the concurrent permanent plan of “custody/guardianship
with a relative” without allowing for the completion of the
interstate home study of the paternal grandmother's Virginia
residence. Noting the “strong preference” expressed by the
legislature in N.C. Gen. Stat. § 7B-506 (2003) for relative
placements in initial non-secure custody hearings, respondent
insists it is unfair both to him and to T.S. to change the
permanent plan to adoption without completing the home study,
inasmuch as “the failure to complete the home study was not the
fault of the [paternal] grandmother or the [r]espondent-[f]ather .
. . .” However, respondent cites no authority in support of his
proposition that the district court was required to await the
completion of the home study before changing the permanent plan to
adoption, and the two statutes invoked by him are inapposite.
Respondent first cites N.C. Gen. Stat. § 7B-3800 (2003), the
“Interstate Compact on the Placement of Children, which governs the
interstate placement of children among member states. The last
sentence in the first paragraph of N.C. Gen. Stat. § 7B-3800
states, “It is the intent of the General Assembly that Chapter 48of the General Statutes shall govern the adoption of children
within the boundaries of North Carolina.” Therefore, inasmuch as
T.S.'s current placement is with an adoptive foster home in the
State of North Carolina, the procedural requirements of N.C. Gen.
Stat. § 7B-3800 do not apply. Whatever requirements may adhere to
the interstate placements of children, nothing in N.C. Gen. Stat.
§ 7B-3800 mandates the district court's consideration of an
interstate placement; nor does the statute require the court to
consider the results of an out-of-state home study before finding
an interstate placement to be contrary to a child's best interests.
Accordingly, the district court's order does not violate any
provision of N.C. Gen. Stat. § 7B-3800.
Respondent also cites N.C. Gen. Stat. § 7B-506, the statute
governing hearings on non-secure custody, which requires the court
to place the juvenile with any relative who “is willing and able to
provide proper care and supervision of the juvenile in a safe
home,” absent a finding that such placement would be contrary to
the juvenile's best interests. N.C. Gen. Stat. § 7B-506(h)(2).
This statute does not apply to permanency planning review hearings
held under N.C. Gen. Stat. § 7B-907 (2003) following an
adjudication of dependency and the entry of a dispositional order
removing the juvenile from the custody of the parents. Moreover,
the record reflects that the Henderson County District Court fully
complied with N.C. Gen. Stat. § 7B-506(h)(2), by placing T.S. with
the maternal grandmother following the 28 January 2002 hearing onnon-secure custody. We note that neither respondent nor the
paternal grandmother appeared at this 28 January hearing.
In considering the portion of respondent's argument that
relies on notions of “fairness” and the general preference accorded
placements with relatives, we note the court's decision was based
on the best interests of T.S., In re Montgomery, 311 N.C. 101, 109,
316 S.E.2d 246, 251 (1984) (establishing that “the best interest of
the child is the polar star” in North Carolina child neglect and
custody proceedings), and recognize this Court reviews decisions
based on the best interests of a child under an abuse of discretion
standard. In re Blackburn, 142 N.C. App. 607, 613-14, 543 S.E.2d
906, 910-11 (2001) (applying an abuse of discretion standard in
reviewing a court's decision that the best interests of a child
required a termination of parental rights). The court grounded its
decision in reports submitted by DSS and T.S.'s guardian ad litem
on 24 April 2003 and 17 July 2003, as well as its own independent
findings regarding: (1) the lack of any relationship between three-
year-old T.S. and the paternal grandmother; (2) the failure of the
paternal grandmother to make any effort to meet T.S. or to
establish a relationship with him; (3) the lengthy delay in
obtaining the home study in Virginia; (4) T.S.'s special
developmental needs and need for permanence; (5) T.S.'s ongoing
seventeen-month relationship with “very committed” adoptive foster
parents; and (6) the lack of progress toward the concurrent
permanent plan of “custody/guardianship with a relative” between 10
October 2002 and 25 March 2004. Given these findings and thecompetent evidence supporting them, we hold the court's decision
that the best interests of T.S. required an order changing the
concurrent plan to a plan of adoption was not an abuse of
discretion.
Defendant next asserts that the district court failed in its
30 March 2004 order to enter the findings of fact required by N.C.
Gen. Stat. § 7B-907(b) (2003). Under N.C. Gen. Stat. § 7B-907(b),
when electing not to return a juvenile to the parent's home, the
court must consider the following criteria and enter “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.
As in his first assertion, respondent offers no citations to
pertinent case law in support of this assertion; nor does he
specify the manner in which the district court's findings of factare non-compliant with N.C. Gen. Stat. § 7B-907(b). Instead, he
avers generally that “the trial court did not properly find the
required facts” and that its “findings do not comply with the
requirement of the statute.”
“It is reversible error for the trial court to enter a
permanency planning order that continues custody with DSS without
making proper findings as to the relevant statutory criteria [under
N.C. Gen. Stat. § 7B-907(b)].” In re M.R.D.C., __ N.C. App. __,
__, 603 S.E.2d 890, 892 (2004). However, the order need not
"contain a formal listing of the § 7B-907(b)(1)-(6) factors,
expressly denominated as such,” provided the district court
“make[s] written findings regarding the relevant § 7B-907(b)
factors.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161
(2004). The court must make a sufficient quantum of specific,
objectively verifiable evidentiary findings to allow meaningful
review of its reasoning and its conclusions of law. In re
M.R.D.C., __ N.C. App. at __, 603 S.E.2d at 892.
Inasmuch as the sole focus of respondent's brief is the
court's abandonment of the concurrent permanent plan of placing
T.S. with the paternal grandmother in Virginia, we infer his
intention to challenge the sufficiency of the court's findings
under N.C. Gen. Stat. § 7B-907(b)(2), which requires the court to
consider “whether legal guardianship or custody with a relative or
some other suitable person should be established[.]” The court's
findings of fact 3, 4, 5, 6, and 7, detailed above, contain
evidentiary findings addressing whether placement of T.S. with thepaternal grandmother would be suitable, including: (1) the paternal
grandmother's lack of effort toward establishing a relationship
with T.S.; (2) her infrequent contact with respondent; (3) her
daughter and granddaughter living with her in a two bedroom house;
(4) T.S.'s special needs, which require ongoing care; (5) T.S.'s
lack of a relationship with the paternal grandmother or any
paternal relative; (6) this case having been before the court for
two years; and (7) T.S.'s need for permanence. Because respondent
has not assigned error to any of the court's findings of fact,
those findings are deemed to be conclusive and binding on appeal.
In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985).
We hold these evidentiary findings are sufficiently thorough to
satisfy the court's burden under N.C. Gen. Stat. § 7B-907(b)(2),
and fully support a conclusion that the best interests of T.S.,
including his “need of permanence” and his developmental needs,
were no longer served by pursuing a possible placement with his
paternal grandmother. See generally In re J.C.S., 164 N.C. App. at
107, 595 S.E.2d at 161-62. For the foregoing reasons we affirm the
district court's order changing the permanent plan for T.S. to
adoption only.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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