Appeal by respondent from order entered 1 November 2004 by
Judge John B. Carter, Jr. in District Court, Robeson County. Heard
in the Court of Appeals 22 March 2006.
Jon W. Myers for respondent-appellant.
No brief filed by petitioner-appellee, Robeson County
Department of Social Services.
Donyal Pearson (respondent) is the mother of A.D.P., a minor
child. The Robeson County Department of Social Services (DSS)
filed a juvenile petition on 6 May 2004, alleging that A.D.P. was
a neglected juvenile. The trial court entered an order for
nonsecure custody on 6 May 2004 and placed A.D.P. in the custody of
DSS. The trial court entered orders on 23 June 2004 and 28 June
2004, continuing custody of A.D.P. with DSS. In an order filed 9
August 2004, the trial court adjudicated A.D.P. a neglected
juvenile and awarded custody of A.D.P. to DSS.
The trial court held a review hearing on 15 September 2004,
and in an order entered 1 November 2004, awarded custody of A.D.P.to his father. The trial court also ordered that "[DSS] and the
[g]uardian ad litem [be] released from further responsibility in
this proceeding." Respondent appeals.
Respondent argues the trial court erred "by delegating its
fact finding duty, incorporating written reports from outside
sources as its findings of fact, and failing to formulate its own
specific findings of fact." Respondent further argues the trial
court's findings of fact do not support its conclusions of law and
the conclusions of law do not support the trial court's order. We
"In all actions tried upon the facts without a jury . . . the
court shall find the facts specially and state separately its
conclusions of law thereon and direct the entry of the appropriate
judgment." N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2005). This
statute requires a trial court to make "specific findings
ultimate facts established by the evidence, admissions and
stipulations which are determinative of the questions involved in
the action and essential to support the conclusions of law
reached." Quick v. Quick
, 305 N.C. 446, 452, 290 S.E.2d 653, 658
(1982). A trial court's findings of fact must be "sufficiently
specific to enable an appellate court to review the decision and
test the correctness of the judgment." Id
. at 451, 290 S.E.2d at
A trial court may properly consider all written reports and
materials submitted in juvenile proceedings. In re Ivey
, 156 N.C.App. 398, 402, 576 S.E.2d 386, 390 (2003). However, a trial court
may not "delegate its fact finding duty" or "broadly incorporate
these 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). Additionally, a trial court may not use incorporated
reports "as a substitute for its own independent review." In re
, 166 N.C. App. 693, 698, 603 S.E.2d 890, 893 (2004), disc.
, 359 N.C. 321, 611 S.E.2d 413 (2005).
In the present case, the trial court, in its five numbered
findings of fact, incorporated five different reports and documents
into its order. However, the trial court did not formulate any
findings of fact based upon the information in the incorporated
reports and documents or based upon any of the evidence presented
at the hearing. Furthermore, the trial court's order does not
contain any findings of fact pertaining to respondent or to the
reasons for changing custody of A.D.P. from DSS to A.D.P.'s father.
Moreover, respondent argues, and we agree, that the trial
court erred by failing to make appropriate findings of fact
pursuant to N.C. Gen. Stat. § 7B-906(c). When a trial court
reviews a custody order, N.C. Gen. Stat. § 7B-906(c) directs that
a trial court must consider the following criteria and make
written findings regarding those that are relevant:
(1) Services which have been offered to
reunite the family, or whether efforts to
reunite the family clearly would be futile or
inconsistent with the juvenile's safety and
need for a safe, permanent home within a
reasonable period of time.
(2) Where the juvenile's return home isunlikely, the efforts which have been made to
evaluate or plan for other methods of care.
(3) Goals of the foster care placement and
the appropriateness of the foster care plan.
(4) A new foster care plan, if continuation
of care is sought, that addresses the role the
current foster parent will play in the
planning for the juvenile.
(5) Reports on the placements the juvenile
has had and any services offered to the
juvenile and the parent, guardian, custodian,
(6) An appropriate visitation plan.
(7) If the juvenile is 16 or 17 years of age,
a report on an independent living assessment
of the juvenile and, if appropriate, an
independent living plan developed for the
(8) When and if termination of parental
rights should be considered.
(9) Any other criteria the court deems
N.C. Gen. Stat. § 7B-906(c)(2005).
The trial court's only attempt at compliance with this statute
is its statement that "termination of parental rights should not be
pursued[.]" Otherwise, the trial court did not make any findings
of fact regarding the statutory criteria set forth in N.C.G.S. §
7B-906(c). While the trial court was not required to make findings
regarding all of the statutory criteria, it appears that, at a
minimum, those criteria under subsections (1), (5), and (6) may
have been relevant. Because the trial court's findings of fact are
not sufficiently specific to enable meaningful appellate review,
and because the trial court did not comply with N.C.G.S. § 7B-906(c), we vacate the trial court's order and remand the matter to
the trial court to make the appropriate findings of fact. See In
, 165 N.C. App. at 513, 598 S.E.2d at 661. Because the
trial court's findings of fact were insufficient, we do not address
respondent's argument that respondent made reasonable progress
toward correcting the conditions which led to the removal of A.D.P.
from respondent's custody.
Respondent also argues the trial court erred by failing to
enter its order within thirty days of the hearing in violation of
N.C. Gen. Stat. § 7B-906(d). While acknowledging settled precedent
to the contrary, respondent argues that she does not need to prove
specific prejudice to warrant a reversal on this ground.
N.C. Gen. Stat. § 7B-906(d) (2005) provides that a review
order "must be reduced to writing, signed, and entered within 30
days of the completion of the hearing." Our Court has repeatedly
held that a trial court's failure to adhere to filing deadlines set
forth in various portions of the juvenile code is not reversible
error without a showing of prejudice. See In re J.L.K.
, 165 N.C.
App. 311, 315-16, 598 S.E.2d 387, 390-91, disc. review denied
N.C. 68, 604 S.E.2d 314 (2004) (order for termination of parental
rights); see also, In re E.N.S.
, 164 N.C. App. 146, 153-54, 595
S.E.2d 167, 171-72, disc. review denied
, 359 N.C. 189, 606 S.E.2d
903 (2004) (adjudication and disposition orders). In In re L.L.
___ N.C. App. ___, 616 S.E.2d 392 (2005), our Court applied
harmless error review to its determination of whether the untimelyfiling of a review order warranted reversal. Id
. at ___, 616
S.E.2d at 397-98.
We held that the nine-month delay between the
review hearing and entry of the order was prejudicial "to [the
child], the parents, [the department of social services], and the
statutorily-mandated permanency planning process." Id
. at ___, 616
S.E.2d at 398. Accordingly, a party must show prejudice to warrant
a reversal of a review order for noncompliance with the time
requirement set forth in N.C.G.S. § 7B-906(d). See Id
. at ___, 616
S.E.2d at 397-98.
In the present case, the trial court filed its review order
fifteen days late. Respondent does not argue that she was
prejudiced and we find that respondent was not prejudiced by the de
delay in the filing of the order. Therefore, we overrule
this assignment of error.
Respondent does not set forth any argument pertaining to her
remaining assignments of error and we deem them abandoned pursuant
to N.C.R. App. P. 28(b)(6).
Vacated and remanded.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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