An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1254


Filed: 21 June 2005

K.D., B.G., and D.C.

                                    Catawba County                            
                                    Nos. 03 J 167-169

    Appeal by respondents from permanency planning order entered 5 May 2004 by Judge Burford A. Cherry in Catawba County District Court. Heard in the Court of Appeals 22 April 2005.

    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.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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