IN RE: K.C. Buncombe County
No. 03 J 268
Buncombe County Department of Social Services, by Charlotte W.
Nallan, Esq., for petitioner-appellee.
Michael N. Tousey for Guardian ad Litem.
David Childers for respondent-appellant.
CALABRIA, Judge.
T.C. (“respondent”) appeals two orders of the district court.
The adjudication and disposition order denied relative placement of
K.C. (“K.C.”) with the maternal grandmother, and the initial
permanency planning order changed the permanent plan for K.C. from
reunification to adoption. We affirm.
I. Facts
On 13 October 2003, respondent gave birth to K.C. (“K.C.”) in
her 34th week of pregnancy, and K.C. weighed only two kilograms
(approximately 4.5 pounds). K.C.'s biological father's name is
T.B. The day after K.C. was born, the Buncombe County Department
of Social Services (“D.S.S.”) received a report from the hospitalregarding K.C.'s birth. D.S.S. was involved with this family
because respondent also has an older child, M.C. (“M.C.”), and
respondent's parents (the “maternal grandparents”) initially had
custody of M.C. until D.S.S. removed M.C. from their custody
because of their history of domestic violence. At the time K.C.
was born, respondent lived with the maternal grandparents. D.S.S.
determined that K.C. could not continue to live in the maternal
grandparents' home. Under a protective plan, respondent and K.C.
went to live with T.B.'s parents (the “paternal grandparents”).
However, T.B. was prohibited from contact with K.C. because of his
history of violence. While respondent cared for K.C. at the
paternal grandparents' home, K.C. suffered hypothermia and failure
to thrive. K.C. was readmitted to the hospital when she was nine
days old because her weight had fallen below her birth weight.
The hospital restored K.C. to her birth weight and released
her on 31 October 2003. At that point, respondent decided she
“needed a break” and left K.C. with the paternal grandmother. The
paternal grandmother failed to take K.C. to a doctor's appointment
on 4 November 2004. The following day, the paternal grandmother
took K.C. to the doctor, and K.C. was readmitted to the hospital
because her weight had again fallen below her birth weight.
On 6 November 2003, respondent and D.S.S. entered into a new
protection plan for K.C. Under the new plan, T.B. was still not
permitted contact with K.C., but respondent violated the plan and
allowed T.B. to spend the night in the hospital room with K.C.
Respondent then left the hospital and said she would return in aday or two. While respondent was at the hospital, the hospital
staff expressed concerns that respondent normally slept or talked
on the phone and had to be prompted to feed, change, and clean K.C.
When K.C. was again ready to be released, her doctor refused to
discharge her from the hospital until appropriate placement was
found for her.
D.S.S. then filed its initial juvenile petition regarding K.C.
The trial court granted D.S.S. non-secure custody of K.C., and on
14 November 2003, K.C. was placed in a foster home. An
adjudication and disposition hearing was subsequently held in this
matter, and the trial court entered an order on 12 April 2004
adjudicating K.C. as neglected and directing that K.C. remain in
the custody of D.S.S. The permanent plan for K.C., however,
remained reunification. Subsequently, an initial permanency
planning hearing was held, and in an order entered 14 June 2004,
the trial court changed the plan to adoption. Respondent appeals
from both orders of the trial court.
II. Appeal from Order of 12 April 2004
We initially note that respondent attempts to challenge the
sufficiency of the evidence supporting the trial court's findings
in its 12 April 2004 adjudication order. However, because
respondent did not assign error to the sufficiency of the evidence,
respondent's argument is beyond the scope of issues for review on
appeal. N.C. R. App. P. 10(a) (2005) (stating, “Except as
otherwise provided herein, the scope of review on appeal is
confined to a consideration of those assignments of error set outin the record on appeal in accordance with Rule 10.”) We,
therefore, consider only respondent's assignment of error
questioning whether “the trial court's order of 12 April 2004
contain[ed] adequate findings of facts and conclusions of law to
support the trial court's failure to make relative placement with
the maternal grandparents.” Because the sufficiency of the
evidence has not been assigned as error, our review is limited to
whether the trial court's findings support its conclusion of law,
see Matter of Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676
(1997), and whether its conclusion supports its disposition. In
re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999).
Respondent does not challenge the adjudication of K.C. as
neglected, therefore, we only consider the dispositional phase.
North Carolina General Statutes § 7B-903(a)(2)(c) (2003) states
that one dispositional alternative for a neglected juvenile is that
“[i]n the case of any juvenile who needs more adequate care or
supervision or who needs placement, the court may . . . [p]lace the
juvenile in the custody of the department of social services in the
county of the juvenile's residence[.]” The statute further states,
In placing a juvenile in out-of-home care
under this section, the court shall first
consider whether a relative of the juvenile is
willing and able to provide proper care and
supervision of the juvenile in a safe home.
If the court finds that the relative is
willing and able to provide proper care and
supervision in a safe home, then the court
shall order placement of the juvenile with the
relative unless the court finds that the
placement is contrary to the best interests of
the juvenile[.]
Id. The trial court made, inter alia, the following findings in
the dispositional phase:
5. That [D.S.S.] recommended the following as
in the best interests of [K.C.]: . . . [t]hat
visits with the maternal grandmother . . . end
as the primary plan is reunification and due
to the Child Protective history with [the
maternal grandmother] placement is not an
option.
. . .
11. That [the maternal grandmother] testified
and the Court finds as facts that she knew
that domestic violence was going on between
[respondent and T.B.] and she still let [T.B.]
live at the home. That the minor child,
[K.C.], if placed in the home of [the maternal
grandmother] would have a high risk of
exposure to domestic violence and her medical
needs not being met. Therefore the Court will
not sanction placement with [the maternal
grandmother]. . . .
12. That it is in the best interest of the
minor child that her custody remains with the
Buncombe County Department of Social
Services[.]
Based on these findings, the trial court concluded “[t]hat it is in
the best interests of the minor child that her custody remains with
[D.S.S.]”
“All dispositional orders of the trial court after abuse,
neglect and dependency hearings must contain findings of fact based
upon the credible evidence presented at the hearing.” In re
Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). “When
a trial court is required to make findings of fact, it must make
the findings of fact specially.” In re Harton, 156 N.C. App. 655,
660, 577 S.E.2d 334, 337 (2003). The trial court is not permitted
to “simply 'recite allegations,' but must through 'processes of
logical reasoning from the evidentiary facts' find the ultimatefacts essential to support the conclusions of law.” Id. (citations
and quotation marks omitted).
In accordance with these standards, we hold that the trial
court's findings support its conclusion, and its conclusion
supports its failure to place K.C. with the maternal grandparents
under the statutory guidelines of N.C. Gen. Stat. §
7B-903(a)(2)(c). The trial court made specific findings that if
K.C. were to live with the maternal grandparents, she would be
subjected to “a high risk of exposure to domestic violence and her
medical needs not being met.” This finding answers the question of
whether the maternal grandparents were “able to provide proper care
and supervision of the juvenile in a safe home.” See N.C. Gen.
Stat. § 7B-903(a)(2)(c). The trial court also found that “it is in
[K.C.'s] best interest . . . that her custody remains with
[D.S.S.]” These findings comply with N.C. Gen. Stat. §
7B-903(a)(2)(c) and support the trial court's conclusion that “it
is in the best interests of the minor child that her custody
remains with [D.S.S.]” Cf. In re L.L., __ N.C. App. __, __, 616
S.E.2d 392, 401 (2005) (describing findings that were insufficient
to support a denial of relative placement.) The conclusion, in
turn, supports the trial court's denial of relative placement with
the maternal grandparents. Accordingly, we reject respondent's
first assignment of error.
III. Appeal from Order of 14 June 2004
Although respondent has failed to assign as error the
sufficiency of the evidence supporting the findings, she againattempts to challenge the sufficiency of the evidence on appeal.
As stated previously, arguments not assigned as error are beyond
the scope of the appeal, and we do not address them. See N.C. R.
App. P. 10(a) (2005). Respondent properly assigned as error that
“the trial court committed reversible error at the [28 April 2004]
hearing and in its resulting order by changing the permanent plan
from reunification to adoption without adequate findings of facts
or conclusions of law to support that change in the permanent
plan.” We, accordingly, address this argument.
Our legislature has stated that the purpose of a permanency
planning hearing is “to develop a plan to achieve a safe, permanent
home for the juvenile within a reasonable period of time.” N.C.
Gen. Stat. § 7B-907(a) (2003). “In a permanency planning hearing
held pursuant to Chapter 7B, the trial court can only order the
cessation of reunification efforts when it finds facts based upon
credible evidence presented at the hearing that support its
conclusion of law to cease reunification efforts.” In re Weiler,
158 N.C. App. at 477, 581 S.E.2d at 137.
By statute, the trial court may cease reunification efforts as
follows:
(b) In any order placing a juvenile in the
custody or placement responsibility of a
county department of social services, whether
an order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that: (1) Such efforts clearly would be futile
or would be inconsistent with the juvenile'shealth, safety, and need for a safe, permanent
home within a reasonable period of time.
N.C. Gen. Stat. § 7B-507(b) (2003).
In this case, the trial court found:
17. That [D.S.S.] asked for a change of the
permanent plan to adoption.
18. That the Court finds that it is in the
best interest of the minor child that the
permanent plan be changed from reunification
to adoption.
19. That it is not possible to return the
minor child to the home of either parent
within the next six months.
20. That the best plan to achieve a safe,
permanent home for the minor child within a
reasonable period of time should be changed
from reunification to adoption. Efforts to
place the child in the home of either parent
clearly would be futile or be inconsistent
with the child's [] health, safety, and need
for a safe, permanent home within a reasonable
period of time.
. . .
24. That the conditions that led to the
custody of the minor child by the Buncombe
County Department of Social Services and
removal from the home continue to exist and
that the return of the minor child to the home
would be contrary to the welfare of the minor
child.
25. That [D.S.S.] made reasonable efforts to
prevent removal of the minor child from the
home, but removal was necessary to protect the
safety and health of the child.
Based upon these findings, the trial court concluded, inter
alia:
2. That pursuant to [N.C. Gen. Stat. §
7B-507], [D.S.S.] has made reasonable efforts
in this matter to prevent or eliminate the
need for placement with the Department and to
implement a permanent plan for the minor
child; however, under the circumstances, it
was neither possible or reasonable to prevent
the removal of the child from the home and
assure the child's safety, and [D.S.S.] hasmade reasonable efforts to return the minor
child to the home.
The trial court's findings comply with the mandates of N.C.
Gen. Stat. § 7B-507(b) (2003) and support the applicable conclusion
of law. Cf. In re Everett, 161 N.C. App. 475, 479-80, 588 S.E.2d
579, 582-83 (2003) (examining findings that fail to comply with §
7B-507(b)). The trial court specifically found that “the
conditions that led to the custody of the minor child by [D.S.S.]
and removal from the home continue to exist and that the return of
the minor child to the home would be contrary to the welfare of the
minor child” and that “efforts to place the child in the home of
either parent clearly would be futile or be inconsistent with the
child's health, safety, and need for a safe, permanent home within
a reasonable period of time.” These findings support the trial
court's conclusion of law, which support the trial court's
disposition, and we reject respondent's assignment of error.
IV. Visitation Rights of Respondent and the Maternal Grandmother
Respondent next assigns as error that “the trial court
committ[ed] reversible error by ending visitation rights with K.C.
of the Respondent-mother and the maternal grandmother because there
are no findings of fact or conclusions of law to support this
action.” Respondent fails to argue her assignment of error, and
only states that the order is “contrary to reunification [and] the
denial or visitation should be set aside.” Because respondent has
failed to argue her assignment or error on appeal, it is abandoned
pursuant to N.C. R. App. P. 28(b)(6).
V. Abandonment of Other Assignments of Error Because respondent has failed to raise her remaining
assignment of error on appeal, we deem it abandoned pursuant to
N.C. R. App. P. 28(b)(6).
Affirmed.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***