IN THE MATTER OF
K.D., B.G., and D.C.
Catawba County
Nos. 03 J 167-169
Carol Ann Bauer, for respondent-appellant-mother.
Hall & Hall Attorneys at Law, PC, by Susan P. Hall, for
respondent-appellant-father.
J. David Abernethy, for petitioner-appellee Catawba
County Department of Social Services.
STEELMAN, Judge.
Catawba County Department of Social Services filed a petition
15 May 2003 alleging that K.D., B.G., and D.C., all minor children
of respondent-mother (respondent-father is the father of D.G., but
not the other two children), were neglected and dependent
juveniles. The children were removed from respondents' home and
placed in nonsecure custody. On 8 July 2003 Department of Social
Services filed a second petition alleging abuse, neglect and
dependency, alleging that respondent-mother ignored reports of
physical abuse of all the children, and sexual abuse of B.G. The
petition further alleged respondents' home had no running water orheat, that for this reason respondent-mother and the children were
placed in a shelter, but were then evicted from the shelter due to
the uncontrolled behavior of the children which respondent-mother
failed to remedy. The petition further alleged that the children
were not receiving needed medications and therapy. On 16 September
2003 both respondents consented to adjudications of neglect and
dependency based upon these alleged facts. The permanency planning
hearing was held 16 March 2004. Both Department of Social Services
and the children's guardian ad litem recommended that the
permanency plan be adoption. Following the hearing, the trial
court entered an order making adoption the permanent plan. From
this order respondents appeal.
In respondent father's third and fifth arguments and
respondent mother's first and second arguments they contend the
trial court erred in incorporating facts contained in reports of
the social worker and the guardian ad litem without making its own
specific findings of fact, and further argue findings of fact made
were not supported by sufficient evidence. We disagree.
“At any permanency planning review, the court
shall consider information from the parent,
the juvenile, the guardian, any foster parent,
relative[,] . . . the custodian or agency with
custody, the guardian ad litem, and any other
person or agency which will aid it in the
court's review. The court may consider any
evidence, including hearsay evidence . . .
that the court finds to be relevant, reliable,
and necessary to determine the needs of the
juvenile and the most appropriate
disposition.” G.S. § 7B-907(b). Moreover, “it
is permissible for trial courts to consider
all written reports and materials submitted in
connection with [juvenile] proceedings.”
However, “despite this authority, the trialcourt may not delegate its fact finding duty.”
Accordingly, “the trial court should not
broadly incorporate these written reports from
outside sources as its findings of fact.”
Thus, although the trial court may properly
incorporate various reports into its order, it
may not use these as a substitute for its own
independent review.
In re M.R.D.C., __ N.C. App. __, __, 603 S.E.2d 890, 893
(2004)(internal citations omitted), review denied, __ N.C. __, 2005
N.C. LEXIS 263 (2005).
“Appellate review of a permanency planning
order is limited to whether there is competent evidence in the
record to support the findings and the findings support the
conclusions of law. If the trial court's findings of fact are
supported by any competent evidence, they are conclusive on
appeal.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161
(2004)(citations omitted).
This court will not sift through whole
reports to pick out “findings of fact” that support the trial
court's order, especially as there may be contradictory “facts” in
the reports, or “facts” that run counter to the trial court's
order. Where, as here, however, the trial court has properly
considered the reports, and has specifically extracted portions of
those reports to include in its findings of fact, we hold that it
has exhibited the necessary level of independent review. We will
not require the trial court to entirely re-write facts it has
pulled from these reports just to make a showing of independence.
The trial court in the instant case specifically listed twenty-
eight findings of fact in its order. It is those findings of fact
that we consider in our review of respondents' arguments. Respondent father does not specifically argue any particular
finding of fact was not supported by evidence at the hearing.
Respondent mother enumerated specific findings of fact, but the
vast majority of these are objected to on the grounds that they are
mere recitations of the incorporated reports of the social worker
and the guardian ad litem. As we have stated above, the mere fact
that these findings of fact track language in relevant reports is
not a disqualifying factor. That the findings of fact track
language in these reports necessarily means that they are supported
by some evidence. If this evidence is competent, our review is
finished. In none of the objections to findings of fact does
respondent mother present an argument as to why, factually, the
findings were in error. We hold that the findings of fact are
supported by competent evidence in the record.
Respondent mother argues that finding of fact number two,
which states that the permanent plan of adoption is appropriate and
in the best interest of the children, is in reality a conclusion of
law. We agree, and do not consider it as a finding of fact.
Respondent mother similarly argues that finding of fact 28
(mislabeled in the order as finding of fact 26) is in reality a
conclusion of law. This finding of fact has multiple parts, and
respondent mother does not indicate which parts she finds
objectionable. To the extent that this finding of fact contains
conclusions of law, we will consider those portions as such.
Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 130-31,
560 S.E.2d 374, 380-81 (2002). In respondent father's first, second and fourth arguments and
respondent mother's third and fourth arguments they contend that
the trial court committed reversible error in failing to make
findings of fact required by N.C. Gen. Stat. § 7B-907, and abused
its discretion in ordering a permanent plan of adoption, or in not
ordering a concurrent plan of reunification. We disagree.
N.C. Gen. Stat. § 7B-907 states in relevant part:
At the conclusion of the 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.
This Court has reversed permanency planning orders for violations
of this statute. See e.g. In re MRDC, __ N.C. App. __, 603 S.E.2d
890 (2004); In re J.S., 165 N.C. App. 509, 598 S.E.2d 658 (2004);
In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003); In re
Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003); In
the Matter of Eckard, 148 N.C. App. 541, 559 S.E.2d 233 (2002); In
re Dula, 143 N.C. App. 16, 544 S.E.2d 591 (2001). However, it is
not necessary for the trial court to explicitly address the
provisions of N.C. Gen. Stat. § 7B-907 as long as the findings of
fact do, in fact, cover the relevant provisions of the statute. In
re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004).
In the instant case, nowhere in respondents' briefs do they
argue which provisions of N.C. Gen. Stat. § 7B-907 the trial court
failed to address in its order. As it is not necessary for the
trial court make findings of fact for N.C. Gen. Stat. § 7B-907
provisions that are not relevant to the particular facts of a case,
and as the trial court is not required to expressly indicate which
findings of fact are associated with the statute, it is necessary
for respondents to indicate which provisions have not been
addressed, and why they are relevant to the instant case. In spite
of this failure, we have carefully reviewed the trial court's order
and hold that it complies with N.C. Gen. Stat. § 7B-907. J.C.S.,
164 N.C. App. at 106, 595 S.E.2d at 161.
Respondents next argue that the trial court abused its
discretion by ordering a permanent plan of adoption for the
children, or alternatively by not ordering a concurrent plan ofreunification. The trial court's findings of fact state that there
was evidence B.G. was repeatedly sexually abused, that she told her
mother about the abuse, but that her mother did not take her
seriously. All the children exhibit inappropriate sexual
behaviors: B.G. was committing sexual acts with other girls at her
youth home, and has been charged with sexually abusing three young
boys. K.D. “will hump on the floor,” and talks negatively about
women. He has disclosed in therapy that he witnessed his sister
engaging in oral sex with neighborhood boys. D.C. “attempted to
kiss her two foster brothers on the mouth repeatedly and has tried
to hump the youngest boy.” She has a history of nightmares, but
after moving into foster care she only had them following visits
with her siblings. The children are no longer permitted to visit
with each other due to the deleterious effect these visits have had
and the inappropriate interactions between them. There is evidence
that respondent mother was physically abused by her live-in
boyfriend, Mr. Dawkins, while the children lived with them. The
children have expressed fear of Mr. Dawkins. Respondent mother was
ordered to cut off contact with Mr. Dawkins, but she continues to
associate with him. Respondent father has indicated that he sees
no problem with Mr. Dawkins residing in the home with the minor
children. “This is evidence of [respondent father's] limited
insight into the issues that brought the minor children into the
custody of the Catawba County Department of Social Services.” The
trial court found as fact that neither respondent has any “insight
into the safety of minor children.” Respondent father has notfollowed through with all of the recommendations, though he has
complied with many of them. Respondents stated that they found the
parenting classes “boring”, and neither of them “appears to
understand the seriousness of the issues that brought the children
into the custody of the Catawba County Department of Social
Services, do not understand the minor children's behavior,
especially the sexually reactive behaviors, and think the minor
children should be returned immediately.” There does not “appear
to be a strong bond between the minor child [D.C.] and her parents
. . . .” Respondent mother does not understand the severity of the
criminal charges against B.G., and she and B.G. were laughing at
B.G.'s first appearance. Respondent mother's psychological
evaluation shows that “the poor decisions she has made are part of
a pervasive pattern of . . . interacting in her environment and
that it is unlikely that she is capable of making better choices.”
Neither respondent understands the severity of the situation, and
neither can offer solutions to the problems. Respondent mother
intends to allow the minor B.G. to baby-sit the two younger
children, “despite the inappropriateness and safety concerns of
this being discussed with her on multiple occasions, by multiple
parties.” Due to the inappropriate sexual behaviors of the
children, they would require separate sleeping arrangements. The
trial court also found as fact that:
Although [respondents] have completed some of
the tasks on their case plan, they are unable
to demonstrate any insight or ability to
provide for the consistent safety and well-
being of the minor children. The minor
children would continue to be at great riskfrom each other and from any adult associates
of their parents should the children return to
the home. Neither parent is able to address
understanding of the circumstances that have
lead to victimization and emotional trauma to
the minor children (sexual abuse, domestic
violence), neither can address an appropriate
plan to protect the minor children in the
future, to address safety in the home among
the siblings, or to address the minor
children's emotional and therapeutic needs.
In light of these findings of fact, we cannot say that the trial
court abused its discretion in concluding that a permanent plan of
adoption, and only a permanent plan of adoption, was in the best
interest of the children. These arguments are without merit.
In respondent father's sixth argument he contends the trial
court erred in concluding that Catawba County Department of Social
Services had exercised reasonable efforts towards reunification.
We disagree.
The trial court's twenty-first finding of fact is as follows:
The Catawba County Department of Social
Services has made the following reasonable
efforts towards reunification:
* Medicaid for the children
* Medicaid Transportation for the children
* First Step Domestic Violence referral
* Mental Health Services for the children and
parents
* Referral to the non-offending parent group
* DEC evaluation for [D.C.]
* Referral to Hope Youth Services [for B.A.]
* Juvenile Court Services
* School visits
* Foster home visits
* Lifebook work for the children
* Sibling visitation
* Visitation with the parents
* Psychological evaluations for mother and father and
[B.A.]
* Bus vouchers for the mother
* ACTION meeting for the family * Monthly treatment team meetings
* Specialized therapeutic placements for [B.G.
and K.D.]
We hold that this finding of fact supports the trial court's
conclusions of law that the Catawba County Department of Social
Services exercised reasonable efforts to prevent the need for
placement outside the parent's care. This argument is without
merit.
AFFIRMED.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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