An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 February 2006
IN THE MATTER OF:
B.W. Orange County
No. 03 J 163
Appeal by respondent mother from order entered 4 February 2005
by Judge M. Patricia DeVine in Orange County District Court. Heard
in the Court of Appeals 26 January 2006.
No brief filed for petitioner-appellee Orange County
Department of Social Services.
Winifred H. Dillon, for respondent-appellant.
Sharon Rutherford (respondent) appeals from the trial
court's order determining a permanent plan for her minor child,
B.W. We reverse and remand.
On 18 December 2003, Orange County Department of Social
Services (DSS) filed a petition alleging B.W. was abused and
neglected after B.W. arrived at school with bruises on her face and
reported respondent had hit her. The petition also alleged DSS had
been involved with the family for three prior years due to previous
allegations of abuse. DSS obtained non-secure custody of B.W.
The court adjudicated B.W. abused on 29 January 2004 and
ordered custody of B.W. to remain with DSS. The court ordered
respondent to complete a psychological examination, completeparenting classes, complete an anger management class, and attend
therapy. The case was reviewed on 1 April 2004, custody was
continued with DSS, and respondent was ordered to have no contact
A permanency planning hearing was held on 1 July 2004. DSS
reported respondent had made a great deal of progress since the
last court review. Respondent had cooperated with DSS and the
guardian ad litem
, completed anger management and parenting
classes, completed a psychological evaluation, and completed an
intake appointment for therapy. The court ordered that
respondent's visitation and telephone contact with B.W. be resumed
once [she] has addressed her legal charges. Respondent was
ordered to continue with parenting classes, to participate in
individual therapy, and to follow the recommendations made by DSS
and the guardian ad litem
The case was reviewed on 2 September 2004. DSS reported
respondent had not attended any individual therapy sessions,
although she was attempting to enroll in therapy in Burke County.
DSS believed respondent needed to attend therapy in Orange County
for consistency and monitoring. The guardian ad litem
stated that respondent has taken very proactive, cooperative
steps. In addition to conditions previously ordered, the court
ordered respondent to complete dialectical behavior therapy.
The case was again reviewed on 2 December 2004. Respondent
submitted a report she wrote in which she described how she hadcomplied with the court's recommendations. The Court ceased
contact between respondent and B.W. pending the next hearing.
The permanency planning hearing from which respondent appeals
was held on 6 January 2005. In its findings of fact, the trial
10. The best plan of care for the juvenile
to achieve a safe, permanent home is
guardianship with her paternal grandparents,
or, in the alternative, custody with a
relative once the juvenile's mental health
issues have been addressed.
The Court concluded:
3. Reasonable efforts to prevent or eliminate
the need for placement of the juvenile have
been made by the Orange County Department of
Social Services and are enumerated in the
above Findings of Fact.
4. The permanent plan as set forth above is
made within the time prescribed by law, is
appropriate and is in the juvenile's best
The court ordered DSS to make reasonable efforts to place B.W. in
a timely manner in accordance with the permanent plan and take the
necessary steps to finalize the permanent placement of B.W.
Respondent argues: (1) the trial court's findings of fact are
not supported by any competent evidence presented at the hearing;
(2) the trial court erred in declining to hear testimony from B.W.
and otherwise failed to solicit information at the hearing
sufficient for the court to make the findings required by N.C. Gen.
Stat. § 7B-907 or to make a considered decision regarding B.W.'sbest interests; (3) the trial court's permanency planning order
failed to make findings required by N.C. Gen. Stat. § 7B-907(b);
(4) the trial court's conclusion that guardianship with B.W.'s
paternal grandparents is the permanent plan in the best interest of
B.W. is not supported by the trial court's findings of fact; and
(5) the trial court's oral and written orders fail to state with
specificity the terms of the judgment.
III. Specificity of the Trial Court's Order
Respondent argues the trial court's oral and written orders
fail to state with specificity the terms of the judgment. We
The purpose of the permanency planning hearing shall be 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). If the juvenile is not returned home at the conclusion of
the permanency planning hearing, the court shall consider the
factors set forth in N.C. Gen. Stat. § 7B-907(b) (2003) and make
written findings regarding those that are relevant. Those factors
(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
N.C. Gen. Stat. § 7B-907(b) (emphasis supplied). At the conclusion
of the permanency planning hearing, the judge shall make specific
findings as to the best plan of care to achieve a safe, permanenthome for the juvenile within a reasonable period of time. N.C.
Gen. Stat. § 7B-907(c) (2003) (emphasis supplied).
If the court determines the juvenile cannot be returned home
immediately or within the next six months, the court must make
written findings why the juvenile cannot be returned home. N.C.
Gen. Stat. § 7B-907(b)(1).
When a trial court is required to make
findings of fact, it must make the findings
specially. See In re Anderson, 151 N.C. App.
94, 96, 564 S.E.2d 599, 601 (2002). The trial
court may not simply recite allegations, but
must through 'processes of logical reasoning
from the evidentiary facts' find the ultimate
facts essential to support the conclusions of
law. Anderson, 151 N.C. App. at 97, 564 S.E.2d
at 602 (quoting Appalachian Poster Advertising
Co. v. Harrington, 89 N.C. App. 476, 479, 366
S.E.2d 705, 707 (1988)).
In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (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. This rule applies even if the
evidence and reports in this case might have
supported the determination of the trial
In re M.R.D.C., 166 N.C. App. 693, 695-96, 603 S.E.2d 890, 892
(2004) (internal citations and quotation marks omitted).
It its oral rendition of judgment the trial court ordered that
reunifications efforts cease, but made no findings of fact or
conclusions of law. The trial court's written order incorporates
by reference the recommendations of DSS and the guardian ad litem
regarding the permanent plan. The Court must specify what isordered and the factual basis for its rulings. Harton, 156 N.C.
App. at 660, 577 S.E.2d at 337.
The trial court found:
5. It is not possible for the juvenile to be
returned home in the immediate future or
within the next six (6) months and in support
thereof, the court specifically finds:
a. Respondent/mother was arrested and charged
with misdemeanor child abuse in January 2003.
She was offered a deferred agreeement for 3
months if she would comply with all
requirements of her OCDSS plan. She did
comply and the case was dismissed. She was
arrested again and charged with misdemeanor
child abuse in September, 2003. She was
offered another deferred agreement but this
time did not comply. Respondent/mother is
scheduled to be in Court on misdemeanor child
abuse charges on January 31, 2005.
b. Respondent/mother has only recently begun
to take active steps toward addressing her
mental health issues.
c. Respondent/father stated that he does not
have a father/daughter relationship with the
juvenile and expressed an interest that the
juvenile live with his parents.
d. The juvenile has been in the custody of
OCDSS since December 17, 2003.
The written order does not specifically direct that
reunification efforts cease. The trial court's findings are
insufficient to specifically explain why it is not in the
juvenile's best interest to return home. N.C. Gen. Stat. § 7B-
907(b)(1). According to DSS's argument at the permanency planning
hearing, the issue was B.W.'s safety if she were returned to
respondent's home. The fact that respondent was scheduled to be in
court on a misdemeanor child abuse charge, standing alone, does notspecifically explain whether it is possible for B.W to safely
return home. Respondent is presumed to be innocent of the pending
criminal charges until a final conviction on those charges. Delo
v. Lashley, 507 U.S. 272, 278, 122 L. Ed. 2d 620, 628 (1993).
Likewise, the fact that respondent has only begun to take
active steps toward addressing her mental health issues does not
specifically relate to the issue of B.W.'s safety. Finding number
5(c) that respondent-father has no father-daughter relationship
with B.W. and has expressed interest for B.W. to live with his
parents, and finding number 5(d) that the juvenile has been in DSS
custody since 17 December 2003 are wholly irrelevant to the
determination of whether it is possible for B.W. to be returned
home immediately or within the next six months. The trial court's
permanency planning order fails to comply with N.C. Gen. Stat. §§
7B-907(b) and (c).
The trial court's permanency planning order does not contain
sufficient findings of fact to comply with N.C. Gen. Stat. §§ 7B-
907(b) and (c) to support its conclusions of law. The trial
court's order is reversed and remanded for specific findings
consistent with this opinion. It is within the trial court's
discretion to allow additional evidence prior to making findings of
fact and conclusions of law. In re J.S.
, 165 N.C. App. 509, 514,
598 S.E.2d 658, 662 (2004) (citing In re Anderson
, 151 N.C. App.
94, 100, 564 S.E.2d 599, 603 (2002)). In light of our decision we
do not address respondent's remaining assignments of error. Reversed and Remanded.
Judges HUDSON and GEER concur.
Report per Rule 30(e).
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