IN THE MATTER OF
K.L.S. McDowell County
D.L.C. Nos. 01 J 88, 89 & 90
C.M.C.
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for
petitioner-appellee.
James C. Callahan for Guardian ad Litem.
Charlotte A. Wade for respondent-appellant.
McGEE, Judge.
Respondent appeals from a permanency planning order placing
custody and guardianship of his children, D.L.C. and C.M.C. (the
children), with their maternal grandparents. The children's
mother, T.L., does not join in this appeal. The order also places
K.L.S., T.L.'s child with another man, with the maternal
grandparents. The placement of K.L.S. is not at issue in this
appeal.
The evidence at the permanency planning review hearing tended
to show the following. The children were taken into custody by
McDowell County Department of Social Services (DSS) on 1 November
2001. At the time, the children were residing with T.L. inMcDowell County and respondent was residing in New York. The
children were adjudicated neglected juveniles on 9 November 2001.
A home study was completed by Oswego County Department of
Social Services in New York (Oswego DSS) on 2 June 2003 in order to
determine whether placement of the children with respondent would
be appropriate. Oswego DSS did not approve placement with
respondent, citing respondent's failure to provide documentation
showing the completion of parenting classes and his failure to
follow the recommendations of his alcohol/substance abuse
evaluation.
A permanency planning hearing was held on 29 April 2004 at
which DSS recommended that the maternal grandparents receive legal
guardianship and custody of the children. T.L. testified that she
believed it was in the best interests of the children for them to
live with their maternal grandparents. Respondent testified that
he wanted custody of the children. He stated that he completed a
series of six parenting classes in New York on 14 May 2003. He
also admitted that he did not follow the recommendations of his
alcohol/substance abuse evaluation, but that he was willing to do
so in order to satisfy DSS requirements for reunification with his
children.
In an order filed 20 May 2004, the trial court made the
following conclusion of law:
6. In accordance with the provisions of
[N.C.] Gen Stat §7B-507(b)(1), it
continues to be futile or inconsistent
with the best interest of the
. . . children to require [DSS] to
provide supportive services and makereasonable efforts to reunify the . . .
children with any of the respondents.
The trial court thereafter entered the following order:
1. The custody and guardianship of [the
children] is placed with [the maternal
grandparents].
. . . .
3. [The maternal grandparents] are appointed
as guardians of [the children], in
accordance with N.C. Gen. Stat. §7B-600,
and said guardians shall not be required
to post bond.
. . . .
7. The permanent plan of care for the . . .
children is placement of their custody
and guardianship with the maternal
grandparents[.]
From this order, respondent appeals.
Respondent argues that the trial court's findings of fact did
not comply with N.C. Gen. Stat. § 7B-907(b), which requires:
At the conclusion of [a permanency planning]
hearing, if the juvenile is not returned home,
the [trial] 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.
N.C. Gen. Stat. § 7B-907(b) (2003). "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[,] . . . even if 'the evidence and reports in
this case might have supported the determination of the trial
court.'" In re M.R.D.C., 166 N.C. App. 693, 695-96, 603 S.E.2d
890, 892 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413
(2005) (quoting In re Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d
392, 395 (2003)). Although the trial court is not required to make
a formal listing of the N.C. Gen. Stat. § 7B-907(b) factors, the
trial court must make findings of fact that are relevant to the
factors. In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161
(2004). When reviewing the evidence, the trial court must use
"'processes of logical reasoning[.]'" In re Anderson, 151 N.C.
App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Appalachian PosterAdvertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d
705, 707 (1988)). The trial court must then "find the ultimate
facts essential to support the conclusions of law." In re Harton,
156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003). Appropriate
findings of fact are necessary for our Court to be able "to review
the decision and test the correctness of the judgment." Quick v.
Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
Mere recitations of testimony are not findings of fact. In re
O.W., 164 N.C. App. 699, 703, 596 S.E.2d 851, 854 (2004); In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). "In
a nonjury trial, it is the duty of the trial [court] to consider
and weigh all of the competent evidence, and to determine the
credibility of the witnesses and the weight to be given their
testimony." Id. at 480, 539 S.E.2d at 365. A trial court's
recitation of the evidence does not determine the ultimate findings
of fact that are pertinent to a case. See O.W., 164 N.C. App. at
703-04, 596 S.E.2d at 854; and Gleisner, 141 N.C. App. at 480, 539
S.E.2d at 365-66.
The trial court's only "finding of fact" that is relevant to
respondent's appeal states:
9. [Respondent] testified that he
periodically called the . . . children
from New York but that he was unable to
afford to come to North Carolina to visit
with the children. [Respondent]
testified that he has been living with
his girlfriend for the last year and a
half, and that she has two children.
[Respondent] testified that she [sic] is
not living at the same residence where
the prior home study was conducted, but
now lives in a single wide mobile home. [Respondent] did not bring to court a
home study on his current residence.
[Respondent] is the father of [D.L.C.]
and [C.M.C.], but is not the father of
[K.L.S.]. [Respondent] testified that
all three children have lived together
all of their lives, and that it could be
detrimental to the children to separate
them from each other. [Respondent]
testified that he wished to have all
three children live at his residence.
[Respondent] acknowledged that he did not
comply with the substance abuse
assessment recommendation to attend
outpatient treatment and AA/NA meetings,
denying he ever had a substance abuse
problem. [Respondent] was offered by the
social worker an opportunity to have
weekend visits with his children, as he
advised the social worker that he could
not come to visit with the children
during weekdays due to his work schedule
and the distance involved. However,
[respondent] has never called the social
worker to schedule a weekend visit. The
children have reported to the social
worker that [respondent] has told them,
on several occasions, that he was coming
to see them but then did not come to
visit. [Respondent] denied he made these
statements to the children.
This "finding of fact" is merely a recitation of the testimony
and evidence presented at the hearing. It does not demonstrate
that the trial court engaged in "processes of logical reasoning" or
determined the ultimate facts in the case. See Harton, 156 N.C.
App. at 660, 577 S.E.2d at 337. Since the trial court did not make
proper findings of fact, we cannot conduct a review of the trial
court's order and must remand for appropriate findings of fact.
We note that the trial court, in finding of fact number
twelve, incorporated the facts from a DSS report as further
findings of fact. A trial court may consider information from anysource "which will aid . . . the [trial] court's review." N.C.
Gen. Stat. § 7B-907(b); see also In re Ivey, 156 N.C. App. 398,
402, 576 S.E.2d 386, 390 (2003). However, the trial court may not
use a DSS report "as a substitute for its own independent review."
M.R.D.C., 166 N.C. App. at 698, 603 S.E.2d at 893. "[T]he trial
court may not delegate its fact finding duty [and] should not
broadly incorporate . . . written reports from outside sources as
its findings of fact." In re J.S., 165 N.C. App. 509, 511, 598
S.E.2d 658, 660 (2004). As a result, we find that the trial
court's incorporation of the DSS report is not a sufficient finding
of fact to support the permanency planning review order.
Although we remand to the trial court for appropriate findings
of fact, we elect to review the remaining assignment of error
addressed in respondent's brief. Respondent argues that he
received ineffective assistance of counsel prior to the permanency
planning hearing from which he appeals. Respondent contends that
he repeatedly attempted to contact his counsel but never received
a response.
A parent has the right to counsel when a petition alleges that
a juvenile is abused, neglected or dependent. N.C. Gen. Stat. §
7B-602(a) (2003). "Implicit in this right to counsel is the right
to effective assistance of counsel." In re Faircloth, 153 N.C.
App. 565, 571, 571 S.E.2d 65, 70 (2002). In order for a respondent
to prove ineffective assistance of counsel, the respondent "must
show that counsel's performance was deficient and the deficiency
was so serious as to deprive [the respondent] of a fair hearing." In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 679 (1989).
A respondent has failed to prove ineffective assistance of
counsel when the respondent does not specify the alleged
shortcomings of counsel. In re B.P., ___ N.C. App. ___, ___, 612
S.E.2d 328, 332 (2005). In B.P., the respondent alleged
ineffective assistance of counsel in that her "counsel was
difficult to contact, failed to call additional witnesses, and made
no motions before the trial court." Id. at ___, 612 S.E.2d at 332.
Noting that the respondent "failed to specify what motions should
have been made and what evidence could have been, but was not,
presented[,]" we held that the respondent failed to prove
ineffective assistance of counsel since she did not establish that
any alleged deficiency deprived her of a fair hearing. Id. at ___,
612 S.E.2d at 332.
Similarly, we find in this case that respondent has not
established that he was deprived of a fair hearing. Respondent has
not specified in what manner his counsel's deficiencies deprived
him of a fair hearing. Respondent testified at length on his own
behalf and explained to the trial court his situation and desire to
have custody of the children. Respondent received a fair hearing.
We deem abandoned those assignments of error not addressed in
respondent's brief. N.C.R. App. P. 28(b)(6).
Remanded.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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