In Re: T.L., (06-17) 06/20/2006

    The Cleveland County Department of Social Services (“DSS”) obtained nonsecure custody of T.L. on 26 September 2002 based on allegations of domestic violence in respondents' home. DSS was also concerned that T.L. continued to wear diapers and was not speaking at four years of age. T.L. was placed in the foster home of Raymond and Debbie Garris (“Mr. and Mrs. Garris”).     DSS filed a subsequent juvenile petition on 4 October 2002 alleging neglect of T.L. based on respondents' failure to follow the recommendation of their pediatrician to take T.L. to the Developmental Evaluation Center due to his developmental delays. T.L. developed normally until he was two years old. Following the filing of that petition, T.L. was admitted to Wake Forest University Baptist Medical Center for a possible diagnosis of autism due to his: (1) limited language ability; (2) incontinence; (3) aversion to touch; (4) limited food interests; (5) poor eye contact; and (6) fear of crowds and noise. During T.L.'s admission, his behavior improved and autism was ruled out. T.L. was diagnosed with Post Traumatic Stress Disorder. Upon discharge, he returned to the Garris's home.
    The trial court entered a temporary adjudication and dispositional order on 25 March 2003. T.L. was adjudicated neglected based on: (1) domestic violence in the home; (2) medical neglect due to respondents' failure to follow through with developmental evaluations; and (3) respondents' continued denial of T.L.'s severe developmental delays. The trial court entered a final adjudication order on 24 April 2003.
    T.L. remained in DSS custody. Respondents were ordered to report for psychological evaluations and substance abuse assessments. Respondent mother was ordered to attend counseling through Abuse Prevention Council. Respondent father was ordered to attend anger management classes.     Respondent father's psychological evaluation indicated he “likely has a mild psychiatric disturbance that probably doesn't significantly interfere with his routine functioning; and may have a character disturbance that lends itself to dependency problems, insecurity, low self-esteem and indecisiveness.” The evaluation further indicated respondent father “tends to act out in an aggressive, controlling and sometimes violent manner, especially when under perceived stress. Additionally, he may tend to be impulsive and narcissistic, often exercising poor judgment and behaving in an irresponsible manner.”
    Respondent mother's psychological evaluation stated, “[respondent mother] does not appear to have a major psychiatric disturbance,” nor does she have “a substance abuse or use problem.” The evaluation concluded, “the combination of her personality traits and her somewhat ineffectual coping strategies increases the risk that she may ultimately place her own needs ahead of those of her child in situations where those needs conflict.”
    The trial court held a review and permanency planning hearing on 21 August 2003 and entered a temporary order, but continued the hearing until 1 October 2003 due to the need for additional information. On 15 October 2003, the trial court entered its initial permanency planning review order after receiving the additional evidence. It was reported that T.L. had made significant improvements since removal from respondents' home including enrollment in kindergarten and speaking in complete sentences.    On 26 November 2003, T.L. received a psychological evaluation. The evaluation stated, “T.L. is a very pleasant child who has made great strides in language and emotional functioning since placement in his foster home.” The evaluation also stated:
        It will be very important for him to remain in a stable environment. Disruption in his care giving arrangement is likely to cause him to regress and to make it more difficult for him to form attachments in the future. Return to an environment of neglect of an abusive environment would be very harmful to his emotional and cognitive development.

T.L.'s evaluation concluded, “[i]t would be in T.L.'s best interest to remain in his current foster home and in his current kindergarten setting.”
    A permanency planning review hearing was held on 13 January 2004. Respondent father had failed to begin anger management classes, and respondent mother had not completed her domestic violence group counseling. The trial court ordered family counseling.
    The court continued reunification as the permanent plan at a review hearing in April 2003. One month later, the trial court adopted a concurrent plan of reunification and adoption based on findings that although respondents had visited T.L. it was in T.L.'s best interests “to change the permanent plan from a plan of reunification to a concurrent permanent plan of reunification and adoption.” As of May 2003, T.L. had been living with the same foster family for eighteen months since his removal.
    At a subsequent permanency planning review hearing, the trial court continued the concurrent plan and ordered respondents tocontinue therapy. The order also implemented a different visitation plan to allow visits outside of the agency and for increased visits with T.L. in respondents' home.
    The next permanency planning review hearing was held in September 2004, two years after T.L. was removed from respondents' home. The trial court continued the concurrent plan.
    The trial court entered its seventh permanency planning review hearing order on 23 November 2004 and continued the concurrent plan.
    The final review order was entered on 12 April 2005. DSS and T.L.'s guardian ad litem and therapist advocated the foster parents be granted the guardianship of T.L. The trial court made ninety- eight findings of fact and concluded, “[t]hat a permanent plan of guardianship is in the best interest of the juvenile.” The trial court appointed “Raymond and Debbie Garris” as T.L.'s guardians. Respondents appeal.

    Respondent mother argues the trial court failed to make findings of fact supported by competent evidence as mandated in N.C. Gen. Stat. §§ 7B-906 and 907.
    N.C. Gen. Stat. § 7B-906 (2005) provides:
        In any case where custody is removed from a parent, guardian, custodian, or caretaker the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter.

        . . . .

        In each case the court shall 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 andneed for a safe, permanent home within a reasonable period of time.

        (2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.

    This Court stated in In re Harton, under N.C. Gen. Stat. § 7B-907, “a trial court is required to conduct a permanency planning hearing in every case where custody of a child has been removed from a parent within 12 months of the date of the original custody order.” 156 N.C. App. 655, 658, 577 S.E.2d 334, 336 (2003). Also, “[s]ection 7B-907(b) requires a trial court to make written findings on all of the relevant criteria as provided in the statute.” Id. at 660, 577 S.E.2d at 337.
    N.C. Gen. Stat. § 7B-907 (2005) provides:
        (b) At any permanency planning review, the court shall consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive parent providing care for the child, 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 as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition. 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 orsome 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.
    The trial court made ninety-eight findings of fact. Respondent mother assigned error to the following findings of fact:
        18.    That Mr. Matherly testified that he was opposed to the recommended granting of guardianship to the foster parents because of his understanding of the legal ramifications this plan might have on the respondent parents. Mr. Matherly was of the opinion that reunification efforts should be continued.

        . . . .

        27.    That the court finds that even though Mr. Matherly gives a highly competent and informed opinion, his timetable for the respondent parents did not take into account that the continued slow progression of the child would be what is in the best interest of the juvenile.

        . . . .

        34.    That David Gentry opines and the Court finds his opinion as credible, that the juvenile needs permanence and stabilityand needs to know who is going to take care of him. Mr. Gentry has talked with T.L. about having more contact with his parents, and T.L. has expressed a desire to live with Mr. and Mrs. Garris and expresses a sense of stability and safety with the Garrises.

        . . . .

36. That Mr. Gentry cannot envision when the juvenile could return home to his parents. Mr. Gentry described the juvenile as being afraid of the dark in that he always wants to go home to the Garris home before its gets dark, and noted that T.L. calls the Garris home “home.”

. . . .

62. That Ms. Cherpak explained that T.L.'s speech therapy is very important. Furthermore, she explained that many of the services that are currently in place could be received without DSS involvement, such as family preservation, and therapy for both the parents and the juvenile.

. . . .

        66.    That this uncertainty is contrary to the best interest of the juvenile and continues to preclude permanence in a safe and secure home environment.

        . . . .

        79.    That there has been more than a reasonable amount of time and reasonable efforts to avoid or prevent removal of the child and effort towards reunification and a return of the child to the home. The juvenile has now been in the custody of the Cleveland County Department of Social Services for 26 months.

        . . . .
        84.    That all service providers associated with this case agree that overnight visitation would not be in the best interest of the juvenile.

        85.    That it is unlikely that the juvenile could be safely returned to the home of the respondent parents within the next 6 months.

        . . . .

91. At this hearing it remains unclear whether or when the juvenile will ever be ready to return to the home of his parents, or that a return to the home of the parents would be in the best interest of the juvenile.

. . . .

93. That legal guardianship of the juvenile should be established with Raymond and Debbie Garris.

. . . .

        95.    That it is in the best interest of the juvenile that there be a permanent defined guardian that the juvenile can identify as his permanent caregiver, with specific and anticipated forms of visitation established between the juvenile and the respondent parents.

        96.    That a specific guardianship and visitation plan is in the best interest of the juvenile.

        97.    That the Cleveland County Department of Social Services has made reasonable efforts to reunify the family and return the juvenile to the home, but at this time, a return to the home would be contrary to the best interest of the juvenile.
    Respondent mother argues these findings of fact are not supported by credible evidence. Respondent mother asserts: (1) finding of fact number eighteen is not an “ultimate finding offact” because “to portray Mr. Matherly as simply an advocate for the parents is an inaccurate picture of his role;” (2) finding of fact number twenty-seven failed to account for the fact that Mr. Matherly considered the needs of T.L., the foster parents, and biological parents when he formulated his opinion; (3) findings of fact numbers thirty-five and thirty-six are not “ultimate finding[s] of fact” because Mr. Gentry only met with T.L., while Mr. Matherly counseled T.L. and respondents; and (4) finding of fact number eighty-four fails to acknowledge that T.L. could eventually participate in overnight visitation. Respondent argues the remaining findings of fact to which she assigned error “are not supported by sufficient evidence.”
    This Court in In re Harton held remand was necessary because the trial court failed to make the required findings of fact under N.C. Gen. Stat. § 7B-907. 156 N.C. App. at 660, 557 S.E.2d at 337. This Court stated:
        When a trial court is required to make findings of fact, it must make the findings of fact specially. 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.

        . . . .

        The trial court, however, made no findings of fact under the specific criteria provided in section 7B-907(b). By stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court's findings are not specific ultimate facts . . . sufficient for this Court to determine that the judgment is adequately supported by competent evidence. Accordingly, we must vacate the Permanency Planning Review Orderand remand this case for the trial court to specially make the required findings of fact under N.C. Gen. Stat. § 7B-907(b).

Id.
    Here, the trial court made the following findings of fact to comply with the requirements of N.C. Gen. Stat. §§ 7B-907 and 906. Whether or not it is in T.L.'s best interest to return home, the trial court found:
        84.    That all service providers associated with this case agree that overnight visitation would not be in the best interest of the juvenile. Even if day visits are extended and some overnight visitation were to begin, it would still not be possible for the juvenile to return to the home within the next six months, and there is no persuasive evidence that overnight visitation with the respondent parents would be in the juvenile's best interest.

        85.    That it is unlikely that the juvenile could be safely returned to the home of the respondent parents within the next 6 months.

        86.    That the juvenile has been with the same caregiver for the past 26 months, and is extremely bonded to the caregivers. The juvenile has made tremendous improvement in his development through counseling and the care of the foster parents.

    On the issue of whether legal guardianship with a suitable person should be established, whether T.L. should remain in the current placement, and what rights should remain with the parents, the court found:
        92.    That a permanent plan of guardianship to Mr. and Mrs. Garris is in the best interest of the juvenile.         93.    That legal guardianship of the juvenile should be established with Raymond and Debbie Garris.

        94.    That a visitation plan with the respondent parents is necessary and in the best interest of the juvenile.

        95.    That it is in the best interest of the juvenile that there be a permanent defined guardian that the juvenile can identify as his permanent caregiver, with specific and anticipated forms of visitation established between the juvenile and the respondent parents;

    On the issue of whether DSS made reasonable efforts to implement the permanent plan for the juvenile, the trial court found, “[t]hat the Cleveland County Department of Social Services has made reasonable efforts to reunify the family and return the juvenile to the home, but at this time, a return to the home would be contrary to the best interest of the juvenile.”
    On the issue of “any other criteria the court deems necessary,” the court stated that respondents “have made tremendous progress in the last 6-9 months in areas of domestic violence, communication, therapy and in an acknowledgment of their problems. It is for these reasons that the Court would see a termination of parental rights unlikely.” The court:
        also considered the written report of Sharon Cherpak dated February 2, 2005 and filed February 10, 2005 in which Ms. Cherpak describes [respondent father's] expression during a Child and Family Team meeting that he was aware that T.L. should not come home at this time and was not ready to come home, although the parents want him to come home when he is ready.
    “Through processes of logical reasoning from the evidentiary facts,” the trial court found “the ultimate facts essential [based on credible evidence] to support the conclusions of law.” Id. This assignment of error is overruled.

    Respondents argue the trial court erred when it ruled guardianship of the child to the foster parents to be the permanent plan.
    N.C. Gen. Stat. § 7B-600 provides:
        (b) In any case where the court has determined that the appointment of a relative or other suitable person as guardian of the person for a juvenile is in the best interest of the juvenile and has also made findings in accordance with G.S. 7B-907 that guardianship is the permanent plan for the juvenile, the court may not terminate the guardianship or order that the juvenile be reintegrated into a parent's home unless the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest, that the guardian is unfit, that the guardian has neglected a guardian's duties, or that the guardian is unwilling or unable to continue assuming a guardian's duties.

        (c) If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile.

    Respondents argue the trial court failed to make adequate findings of fact and “failed to verify that the person being appointed understands the legal significance of the appointment and has adequate resources to properly care for the juvenile.”     Mr. and Mrs. Garris have maintained custody of T.L. for over three years. The trial court made ninety-eight findings of fact based upon credible evidence and concluded it was in T.L.'s best interest to remain in the custody of Mr. and Mrs. Garris. Evidence before the trial court included the testimonies of David Gentry, a licensed clinical social worker who met with T.L. fifty-two times; Oriaku Hampton, an in-home therapist who had been involved with this case since January 2005; and Dewey Matherly, a licensed clinical social worker who worked with respondents for a period of approximately fifteen months. Each of these witnesses agreed T.L. was not ready to return to his parents' home.
    Mr. Garris testified that he understood the legal significance of his and his wife's appointment as T.L.'s guardians. When asked if he understood the legal ramifications of guardianship, Mr. Garris answered “yes” and testified:
        Guardianship _ is just to take him and con _ continue, in my opinion _ I mean, it's from what I know _ is to take him and raise him and, uh, just like we're doing right now except, uh, he's not going to be ours. He's going to belong to [respondents], and he's to still have continuing visitation with them and _ and, uh, having activities with them and spending time with them but his actual home and raising and schooling and everything will be at our home.

Mr. Garris was asked how he and his wife felt about guardianship. Mr. Garris replied, “[a]nd having him in our home _ my wife and I have discussed it a lot _ is that we think that we could take him and really give him an education, train him, teach him, give himwhat he's got now.” The trial court's findings of fact support its conclusions of law. This assignment of error is overruled.