IN THE MATTER OF: Rutherford County
D.C., Jr. No. 04 J 07
LEVINSON, Judge.
Respondents (mother and father) appeal from the trial court's
permanency planning order awarding legal custody and guardianship
of D.C. to Gregory and Tawanna Swafford.
(See footnote 1)
For the reasons stated
herein, we reverse and remand.
The pertinent facts may be summarized as follows: In January
2004, Rutherford County Department of Social Services (DSS) filed
a petition alleging that D.C. was a neglected juvenile. At thetime the petition was filed, D.C. and his older half-sister, J.B.,
were not living with their mother and father. Rather, the
juveniles were living with relatives, Tawanna and Greg Swafford.
When J.B. was 13 years old and still living with her mother, J.B.
was sexually abused by Joe Stafford, who was her mother's boyfriend
at the time. J.B. conceived a child, and a paternity test proved
that Stafford was the father. Stafford pled guilty to first degree
sex offense and was sentenced to eight years imprisonment.
In April 2004, D.C. was adjudicated neglected based upon
allegations, inter alia, that D.C. lived in an environment “of
sexual perversity . . . to the calculated neglect of the basic
rights of [D.C.] to cleanliness, nutrition, protection and
fostering of good and wholesome values.” DSS took custody of
D.C., and the agency was relieved of reunification efforts with
respect to mother and father. DSS was directed to pursue relative
guardianship or adoption of D.C. and J.B., with “particular
consideration” to be given to Tawanna and Greg Swafford. In July
2004, legal guardianship of J.B. was awarded to the Swaffords. DSS
filed a petition to terminate the parental rights of mother and
father as to D.C., but the court ruled against termination in
November 2004. D.C. continued to live with Greg and Tawanna
Swafford, and was living with them when a permanency planning
hearing was held in October 2005.
Casey Hill, a social worker for DSS, testified that D.C.
wished to continue living with the Swaffords. At the time of this
hearing, the half-sister, J.B., was not living with the Swaffords;she had established independent living arrangements by that time.
D.C.'s older half-brother, J.B., who was 20 years old at the time
of the hearing, continued to reside in the Swaffords' home. At one
time, D.C. made an allegation that he was sexually molested by J.B.
J.B. received counseling related to this allegation, and his
therapist subsequently concluded that it was acceptable for D.C.
and J.B. to live in the same home. Hill further testified that
Tawanna Swafford is related to D.C.'s mother. In May 2005, DSS
held a meeting with Tawanna and Greg Swafford to discuss concerns
related to Joe Stafford getting out of prison, and the need to
supervise his presence around D.C.
Tawanna Swafford testified that she and her husband, Greg,
have been married for three years, and that they share their home
with D.C. and J.B. Swafford also testified that she and her
husband are employed and support the household. They also support
D.C. with the assistance of a child support check and occasional
assistance from social security monies that DSS holds in trust for
D.C.
Swafford further testified that Stafford is her uncle, and
that she is not sure whether he would engage in sexual abuse again.
In a 31 October 2005 order, the trial court incorporated by
reference the information and recommendations contained in prior
DSS and Guardian Ad Litem reports. In addition, by utilizing a
largely boilerplate form order containing only “X” marks and the
insertion of names, the trial court found, in relevant part, that:
. . . continuation in or return to the
juvenile's own home would be contrary to the
juvenile's best interest and that the
Rutherford County Department of SocialServices has made reasonable efforts to
prevent or eliminate the need for placement of
the juvenile(s) as set forth in the court
report of the Department of Social Services
which is incorporated herein by reference.
The trial court concluded that:
. . . the parent(s) is/are not presently able
to provide adequately for the care and custody
of the named juvenile(s), but that relative(s)
Gregory and Tawanna Swafford are able to
provide and are willing to accept and provide
for the care, custody and control of the named
juvenile and are willing to accept and provide
for legal guardianship of the named juvenile,
and that it is in the best interests of the
named juvenile(s) at his/her/their care,
custody and control and legal guardianship be
awarded to Gregory and Tawanna Swafford.
From this order, mother and father both appeal, asserting that
the trial court erred by entering a permanency planning order that
does not comply with the statutory requirements of N.C. Gen. Stat.
§ 7B-907 (2005). We agree.
The goal of the 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) (2005).
If a juvenile is not returned home at the conclusion of a
permanency planning hearing, the trial court must consider certain
specified criteria and “make written findings regarding those that
are relevant.” N.C. Gen. Stat. § 7B-907(b) (2005). These factors
include, in pertinent part:
(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 arelative or some other suitable person should be
established[.]
G.S. §§ 7B-907(b)(1) and (2).
This Court has ruled in accordance with G.S. § 7B-907 that “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 twelve months of the date of the original custody order.”
In re Harton, 156 N.C. App. 655, 658, 577 S.E.2d 334, 336
(2003)(citing In Re Dula, 143 N.C. App. 16, 18, 544 S.E.2d 591, 593
(2001)). “Section 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.
A permanency planning order need not “contain a formal listing
of the G.S. § 7B-907(b)(1)-(6) factors, expressly denominated as
such . . . [as long as the trial court makes] written findings
regarding the relevant G.S. § 7B-907(b) factors [.]” In re J.C.S.,
164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). However, in its
order:
the trial court must, through 'processes of
logical reasoning,' based on the evidentiary
facts before it, 'find the ultimate facts
essential to support the conclusions of law.'
The resulting findings of fact must be
'sufficiently specific to enable an appellate
court to review the decision and test the
correctness of the judgment.'
In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d, 658, 660 (2004)
(quoting In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337
(2003), and Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657
(1982)). Therefore, while “it is permissible for trial courts toconsider all written reports and materials submitted in connection
with [juvenile proceedings]. . . the trial court may not delegate
its fact finding duty.” In re J.S., 165 N.C. App. at 511, 598
S.E.2d at 660. “Consequently, the trial court should not broadly
incorporate these written reports from outside sources as its
findings of fact.” Id.
In the instant case, the broad incorporation by reference of
two orders from outside sources, coupled with the conclusory,
boilerplate language of the subject order, does not sufficiently
address the factors enumerated in G.S. § 7B-907(b). Therefore, as
the trial court's findings are not sufficiently specific to comply
with the statutory requirements, we reverse the subject order and
remand the matter to the trial court for proceedings not
inconsistent with this opinion.
Reversed and remanded.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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