An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 19 December 2006
IN THE MATTER OF:
H.P. Greene County
No. 03 JA 32
Appeal by respondent mother from order entered 8 August 2005
by Judge R. Les Turner in Greene County District Court. Heard in
the Court of Appeals 13 November 2006.
E.B. Borden Parker, for petitioner-appellee Greene County
Department of Social Services.
Lisa Skinner Lefler, for respondent-appellant.
C.W. (respondent) appeals from a dispositional order entered
decreeing the permanent plan for her daughter, H.P., to be
guardianship with a relative and granting reasonable and liberal
visitation for respondent with H.P. in the discretion of the
guardian. We vacate and remand.
H.P. was born to respondent and her father, Z.P., on 26 July
1999. On 22 September 2003, H.P. and her half-brother were removed
from their parents' home. The Greene County Department of Social
Services (DSS) alleged H.P. was neglected due to living in an
injurious environment because her half-brother was disciplined with
a belt by both parents. DSS also alleged a history of domestic
violence between respondent and Z.P. in the petition. Respondentadmitted H.P was a neglected juvenile after the petition was filed.
A memorandum of agreement and consent order was signed by all
parties on 24 September 2003 and filed on 25 September 2003.
Respondent agreed, among other things, to: (1) attend mental
health counseling; (2) participate in domestic violence education;
(3) maintain a suitable residence; (4) attend parenting and
nurturing classes; (5) attend anger management classes; (6)
participate in a nutrition education class; and (7) supervised
weekly visitation with the children at DSS. Wayne County DSS
scheduled a home study on the home of Pearl B. (Pearl), H.P.'s
paternal aunt, located in Goldsboro, North Carolina.
Respondent was present at a review hearing on 13 October 2003.
In an order entered on 18 November 2003, custody of H.P. was
continued with DSS. The conditions contained in the prior order
A further review hearing was held on 10 November 2003 and the
trial court entered an order on 10 December 2003. Respondent
provided the trial court with her sister's name and contact
information in Louisiana for possible relative placement. The
trial court ordered a home study review of the home of respondent's
sister. The trial court also found respondent had: (1) begun a
psychological evaluation; (2) attended anger management classes;
and (3) attended parenting classes. The trial court also found
respondent had missed visitation with H.P. once because she was
with the juvenile (sic), a second time because respondent was in
the hospital, and on a third time due to transportation problems. Respondent's supervised visitation with H.P was continued.
A review hearing was conducted on 23 February 2004. In an
order entered on 12 April 2004, findings of fact showed respondent
had attended domestic violence classes, had moved to Johnston
County, and had completed parenting classes. The trial court
ordered custody of H.P. to be placed with Pearl. Pearl was granted
discretion over when respondent could have supervised visitation
with H.P. Respondent objected to H.P.'s placement with Pearl
because H.P. would be separated from her half-brother.
In an order entered on 7 May 2004 after a review hearing on 12
April 2004, the trial court ordered H.P. to remain in Pearl's
custody. Respondent was granted continued supervised visitation
with H.P. in Pearl's discretion.
In an order entered on 14 September 2004 after a review
hearing on 26 July 2004, the trial court: (1) found respondent had
moved to Louisiana where she lived with her son's father; (2) found
respondent had violated a previous order by having a male in her
home while H.P. visited in July 2004; (3) continued custody of H.P.
with Pearl; and (4) allowed respondent unsupervised visitation with
H.P. in Pearl's discretion as long as respondent did not remove
H.P. from Wayne County.
A permanency planning hearing was held on 18 October 2004, and
an order was entered 10 January 2005. Respondent requested a home
study review of her home in Louisiana. The trial court concluded
and ordered that the permanent plan for H.P. was relative placement
with Pearl. During a permanency planning review hearing held on 14 March
2005, DSS requested the permanent plan for H.P. be changed to
guardianship with a relative. The results of the study on
respondent's home in Louisiana had not been received. On 26 May
2005, the trial court ordered custody be continued with Pearl and
changed H.P.'s permanent plan to guardianship with Pearl.
Another permanency planning review hearing was conducted on 27
June 2005. After setting out findings of fact, the trial court:
(1) determined the best interest of H.P. would be promoted by
continued custody with Pearl; (2) discontinued further review
hearings because H.P. had remained in Pearl's custody for over a
year and the permanent plan for H.P. was guardianship with Pearl;
(3) determined respondent should have reasonable and liberal
visitation with H.P. under Pearl's supervision; and (4) relieved
and released the guardian ad litem and attorney advocate.
Respondent appeals from this order entered on 8 August 2005.
Respondent argues the trial court erred by: (1) failing to
make required findings of fact and granting Pearl discretion
regarding her visitation plan with H.P and (2) ceasing
reunification efforts without making findings of fact required by
N.C. Gen. Stat. § 7B-507(b).
The trial court's order decrees that respondent may have
reasonable and liberal visitation with the juvenile, under the
supervision of Pearl . . . in North Carolina. Respondent contendsthe trial court's order should be reversed because the visitation
plan failed to provide for a minimum outline of visitation. We
N.C. Gen. Stat. § 7B-905(c) (2005) provides, in pertinent
Any dispositional order under which a juvenile
is removed from the custody of a parent,
guardian, custodian, or caretaker, or under
which the juvenile's placement is continued
outside the home shall provide for appropriate
visitation as may be in the best interests of
the juvenile and consistent with the
juvenile's health and safety.
An appropriate visitation plan must provide for a minimum
outline of visitation, such as the time, place, and conditions
under which visitation may be exercised. In re E.C., 174 N.C.
App. 517, 523, 621 S.E.2d 647, 652 (2005) (emphasis supplied)
(citing In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849
(1971)). The trial court may grant some discretion to the person
in whose custody the child is placed to temporarily suspend
visitation, upon notice to the court, if the child's health or
safety is in danger. Id.; see Woncik v. Woncik, 82 N.C. App. 244,
250, 346 S.E.2d 277, 281 (1986) (holding that the trial court did
not delegate its judicial authority by including in its custody
order a provision allowing the child's custodian, upon notice to
the court, to suspend a non-custodial parent's visitation
privilege, pending a court hearing, if the non-custodial parent
during visitation engaged in behavior detrimental to the child's
welfare); compare N.C. Gen. Stat. § 7B-905(c) (allowing terminationor suspension of visitation by the director of DSS upon a good
faith determination that the visitation plan may not be in the best
interests of the juvenile or consistent with the juvenile's health
The trial court's order failed to make required findings of
fact regarding the time, place, and conditions for respondent's
visitation with H.P. by placing discretion with Pearl over
respondent's visitation with H.P. The trial court's visitation
plan is vacated.
The trial court's order failed to provide a minimum outline
of visitation for respondent's visitation with H.P. In re E.C.
174 N.C. App. at 523, 621 S.E.2d at 652. We vacte the trial
court's visitation plan and remand for further proceedings
consistent with this opinion. In light of our decision, we do not
reach respondent's remaining assignment of error. Upon remand,
respondent may move to present any additional evidence bearing on
the issue of custody or visitation. N.C. Gen. Stat. § 7B-906(b)
(2005) (The court may not waive or refuse to conduct a review
hearing if a party files a motion seeking the review.).
Vacated and Remanded.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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