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1. Parent and Child--failure to follow instructions on remand--permanency planning
hearing--de facto dismissal of termination proceeding
Although the trial court erred by failing to adhere to the instructions set forth in the Court
of Appeals' remand by holding a permanency planning hearing rather than holding a termination
hearing, the error was not prejudicial, because the shift to a permanency planning hearing, when
coupled with the notice given respondent and the continuance granted to her to allow her counsel
to prepare for the hearing, was a de facto dismissal of the termination proceeding.
2. Parent and Child--findings of fact--trial court may consider all written reports and
materials
Although respondent contends in a permanency planning hearing that the findings of fact
made prior to reversal in a termination of parental rights case could not be relied upon by the trial
court, in juvenile proceedings trial courts may properly consider all written reports and materials
submitted in connection with said proceedings.
3. Parent and Child--permanency planning hearing--finding of fact--efforts toward
reunification with mother futile
The trial court did not err in a permanency planning hearing by its finding of fact that
efforts toward reunification with the mother would be futile, because evidence was presented
showing that: (1) there were risks associated with the child returning home; (2) earlier attempts at
home placement had failed; and (3) respondent mother had failed even to contact the social
worker associated with her case since the last review.
4. Parent and Child--permanency planning hearing--finding of fact--compelling reason
why proceeding to termination of parental rights not in minor child's best interest
The trial court did not err in a permanency planning hearing by its finding of fact that
there was a compelling reason why proceeding to a termination of parental rights was not in the
minor child's best interest, because the trial court's reliance on the length of time that the child
had waited for permanence, when coupled with the other findings of fact, is competent evidence
in support of the finding.
5. Parent and Child--permanency planning hearing--finding of fact--foster parents
understand legal significance of appointment of guardianship
The trial court did not err in a permanency planning hearing by its finding of fact that the
trial court verified that the foster parents understand the legal significance of the appointment of
guardianship and they have adequate resources to care appropriately for the minor child, because:
(1) although the foster parents were not at the hearing, they had been raising the child for six
years and had shown every indication that they wished to continue to do so; and (2) the evidence
presented by petitioner and the guardian ad litem was also competent to support this finding.
6. Parent and Child--permanency planning hearing--finding of fact--notice of hearing
The trial court did not err in a permanency planning hearing by its finding of fact that
respondent mother received notice of the hearing and knew petitioner and the guardian ad litem
would be asking to change the permanent plan at the hearing, because: (1) respondent merely
asserted that the notice was confusing; and (2) respondent did not seriously dispute that she was
made aware that petitioner would seek to change the permanent plan the week before the hearing.
7. Parent and Child--permanency planning hearing--finding of fact--progress toward
reuniting with minor child
The trial court did not err in a permanency planning hearing by its finding of fact that the
mother still had not made appropriate progress toward reuniting with the minor child, because:
(1) nowhere does respondent allege that she actually presented evidence showing that she had
made any progress toward providing a safe home; and (2) maintaining an appropriate bond with
one's child, loving and affectionate though it may be, is not enough to persuade the courts to
allow reunification in the absence of a safe and healthy home.
8. Parent and Child--permanency planning hearing_-judicial notice--lack of
permanence resulting in developmental disabilities
The trial court did not err in a permanency planning hearing by taking judicial notice of
other orders and reports in the court's file that show the minor child's lack of permanence
resulted in developmental disabilities, because: (1) the trial court found the juvenile's emotional
heath continued to deteriorate; and (2) permanency had not been achieved at the time of the
finding.
9. Parent and Child--permanency planning hearing--finding of fact--minor child
requested permanence and asked to be adopted by foster parents
The trial court did not err in a permanency planning hearing by its finding of fact that the
minor child herself had requested permanence and asked to be adopted by the foster parents,
because: (1) contrary to respondent's assertion, the statement by petitioner's attorney was not the
sole supporting evidence for this finding; and (2) the minor child's requests to be adopted are
reflected in both the 17 April 2003 and 15 April 2004 social workers' reports.
10. Parent and Child--permanency planning hearing--finding of fact--foster parents
consistently supportive of minor child's connection to mother and half-siblings
The trial court did not err in a permanency planning hearing by its finding of fact that the
foster parents have been consistently supportive of the minor child's connection to the mother
and half-siblings, because: (1) the foster mother consistently sent pictures and gifts for birth
siblings at Christmas and holiday visits between the minor child and the mother; and (2) at a
permanency planning review, the court shall consider information from any person or agency
which will aid it in the court's review.
11. Parent and Child--permanency planning hearing-_conclusion of law--mislabeling as
finding of fact inconsequential
Although the trial court in a permanency planning case mislabeled as a finding of fact its
conclusion of law that the best plan of care to achieve a safe and permanent home within a
reasonable period of time is to grant legal guardianship to the foster parents, the conclusion was
fully supported by the trial court's twenty-one remaining findings of fact and the mislabeling was
inconsequential.
12. Child Support, Custody, and Visitation--failure to make written findings--awarding
of visitation a judicial function that may not be delegated
Although the trial court erred in a permanency planning hearing by failing to set out in
writing the rights and responsibilities that would remain with respondent mother, a review of the
orally addressed issue of visitation revealed that the case should be remanded for clarification
consistent with this opinion, because: (1) the awarding of visitation of a child is an exercise of a
judicial function and the trial court may not delegate this function to the custodian of a child; and
(2) the trial court should not assign the granting of visitation to the discretion of the party
awarded custody.
13. Parent and Child--permanency planning hearing-_improperly relieving all parties
and attorneys of further responsibility
The trial court erred in a permanency planning hearing by relieving all parties and
attorneys of further responsibility and stating that there would be no further hearings held in this
matter, and this part of the order is reversed and remanded with instructions, because: (1)
N.C.G.S. § 7B-907 provides the general rule that following a permanency planning hearing,
subsequent permanency planning hearings shall be held at least every six months thereafter and
may be combined with review hearings under N.C.G.S. § 7B-906; and (2) the trial court failed to
find all of the criteria under N.C.G.S. § 7B-906(b).
David A. Perez for petitioner-appellee Randolph County
Department of Social Serivces.
Rebekah W. Davis for respondent-appellant mother.
John J. Butler for guardian ad litem.
ELMORE, Judge.
This appeal arises from the district court's order, entered 23
November 2005, modifying the permanent plan for the minor child
from termination to guardianship, granting guardianship to the
child's foster parents, and ordering that there be no further
hearings held in the matter. After careful review, we affirm the
order of the trial court in part, and reverse and remand in part. On 14 July 1998, the Randolph County Department of Social
Services (petitioner) filed a neglect petition and assumed custody
of the minor child R.A.H. Following an adjudication by the trial
court that R.A.H. was neglected, petitioner filed a petition to
terminate respondent's parental rights. After a hearing, on 23
August 2002, the trial court issued an order terminating
respondent's parental rights. Respondent appealed that order, and
on 5 July 2005, this Court reversed the trial court and remanded
the case for a new hearing.
Respondent was served notice by mail of a hearing for review
on 30 September 2005. The hearing was originally set for 12
October 2005, but was continued by request of respondent's counsel
to 20 October 2005. On that date, the trial court, apparently
ignoring the specific language of this Court's decision, which
remanded the case “for a new termination hearing,” instead held a
new permanency planning hearing. On 23 November 2005, the trial
court entered an order changing the permanent plan from termination
and adoption to guardianship. It is from this order that
respondent now appeals.
[1] Respondent first assigns error to the trial court's
failure to adhere to the instructions set forth in this Court's
remand. Respondent argues that rather than holding a termination
hearing as this Court instructed, the trial court held a permanency
planning hearing without dismissing the termination proceeding or
requiring petitioner to give specific notice of the change. Whilewe agree that the trial court erred in not following our
instructions, we hold that the error was non-prejudicial.
Respondent is absolutely correct in her assertion that “[t]he
general rule is that an inferior court must follow the mandate of
an appellate court in a case without variation or departure.”
Condellone v. Condellone, 137 N.C. App. 547, 551, 528 S.E.2d 639,
642 (2000) (quoting Metts v. Piver, 102 N.C. App. 98, 100, 401
S.E.2d 407, 408 (1991)), disc. review denied, 352 N.C. 672, 545
S.E.2d 420 (2000). This Court agrees that the trial court should
have explicitly addressed the termination proceeding, either by
holding a new hearing or by dismissing it entirely. However, its
failure to do so was in no way prejudicial to respondent. The
shift to a permanency planning hearing,
(See footnote 1)
when coupled with the
notice given respondent and the continuance granted to her to allow
her counsel to prepare for the hearing, was a de facto dismissal of
the termination proceeding. As such, the trial court's error in
failing to properly address the issue as required by this Court was
harmless.
[2] Respondent's related contention that the findings of fact
made prior to reversal could not be relied upon by the trial court
is simply incorrect.
(See footnote 2)
To the contrary, “[i]n juvenile proceedings,
trial courts may properly consider all written reports andmaterials submitted in connection with said proceedings.” In re
Ivey, 156 N.C. App. 398, 402-03, 576 S.E.2d 386, 390 (2003)
(quoting In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638
(1983), modified and aff'd, 311 N.C. 586, 319 S.E.2d 567 (1984))
(emphasis added). Accordingly, this aspect of her assignment of
error is without merit.
Respondent next contends that a number of the trial court's
findings of fact are not supported by sufficient, competent
evidence or are not proper findings of fact.
(See footnote 3)
“Appellate review of
a permanency planning order is limited to whether there is
competent evidence in the record to support the findings and the
findings support the conclusions of law.” In re J.C.S., 164 N.C.
App. 96, 106, 595 S.E.2d 155, 161 (2004). Because we find no error
in the trial court's findings of fact, this contention is without
merit. [3] Respondent first claims error in the trial court's
finding: “That efforts towards reunification with the Mother would
clearly be futile or would be inconsistent with the minor child's
health, safety and need for a safe, permanent home within a
reasonable period of time and should, therefore, cease.”
Respondent argues that no evidence was presented regarding either
the child's relationship with her mother or the mother and child's
ability to pursue reunification; however, evidence was presented
showing that there were risks associated with the child returning
home, that earlier attempts at home placement had failed, and that
respondent had failed even to contact the social worker associated
with her case since the last review. This evidence is competent to
support the finding of fact.
[4] Respondent next argues that the trial court's finding that
“there is a compelling reason why proceeding to a termination of
parental rights . . . is not in the minor child's best interest .
. .” was based on incomplete evidence. In this contention,
respondent fails to apply the correct standard of review. The
issue is not whether the evidence was complete. Rather, the proper
course is to determine whether there was evidence competent to
support the finding. In this case, the trial court's reliance on
the length of time that the child had waited for permanence, when
coupled with the other findings of fact, is competent evidence in
support of the finding.
[5] Respondent next attacks the trial court's finding that it
had “verified that the foster parents understand the legalsignificance of the appointment of guardianship and they have
adequate resources to care appropriately for the minor child[].”
While respondent asserts that the foster parents were not at the
hearing, she acknowledges that the foster parents had been raising
the child for six years, and had shown every indication that they
wished to continue to do so. Moreover, the evidence provided by
petitioner and the guardian ad litem was also competent to support
this finding of fact.
[6] Next, respondent claims that the trial court erred in
finding that “the Mother received notice of this hearing . . . and
knew [petitioner] and the Guardian ad Litem would be asking to
change the permanent plan at today's hearing as she was in Court
last week and the same was announced in open court.” Respondent
acknowledges, however, that she did receive notice of the hearing
on the date stated by the court. She merely asserts that the
notice was confusing. Furthermore, respondent does not seriously
dispute that she was made aware that petitioner would seek to
change the permanent plan the week before the hearing. There is no
doubt that this finding of fact was amply supported by competent
evidence.
[7] Respondent's next claim is that the trial court erred in
its finding that “it is clear to the Court that the Mother still
has not made appropriate progress towards reuniting with the minor
child. The permanent plan has been that of adoption and the Mother
has presented no evidence of progress made to reunify with the
minor child.” Respondent repeats her trial counsel's assertionthat this finding is “disingenuous.” She argues that her visits
with the child were restricted, that she maintained a loving bond
with the child, and that she was confused about the nature of the
hearing. Respondent also finds fault with the trial court's
findings that she failed to visit the child for ten months and that
a reunification within the next six months was unlikely. Yet
nowhere does respondent allege that she actually presented evidence
(or, indeed, that there was any evidence to present) showing that
she had made any progress “towards providing a safe home.” Here,
respondent seems to simply miss the point. Maintaining an
appropriate bond with one's child, loving and affectionate though
it may be, simply is not enough to persuade the courts to allow
reunification in the absence of a safe and healthy home. The trial
court's finding was supported by competent evidence.
[8] Respondent next claims that the trial court erred in
taking judicial notice of “other Orders and reports in the Court's
file that show the minor child's lack of permanence is resulting in
developmental disabilities and that situation continues today.”
Though respondent claims that no connection between the child's
lack of permanency and her developmental deficiencies was ever
alleged, the trial court found in a Pre-Adoptive Review Order that
“[t]he Juvenile's emotional health has continued to deteriorate,
and the permanency for the Juvenile is not being achieved in a
timely matter.” At the time of the finding in question, it is
clear that permanency had not been achieved. As such, the trial
court based its finding on competent evidence. [9] Respondent further argues that the trial court's finding
“[t]hat the minor child herself has requested permanence and has
asked to be adopted by the foster parents,” is based solely on a
statement made by petitioner's attorney. Respondent is correct
that “[s]tatements by an attorney are not considered evidence.”
In re D.L., A.L., 166 N.C. App. 574, 582, 603 S.E.2d 376, 382
(2004). Respondent is incorrect, however, in her assertion that
petitioner's attorney's statement was the sole supporting evidence
for the trial court's finding. To the contrary, the minor child's
requests to be adopted are reflected in both the 17 April 2003 and
15 April 2004 social workers' reports. Accordingly, there was
competent evidence to support the trial court's finding.
[10] Next, respondent assigns error to the trial court's
finding of fact “[t]hat the foster parents have been consistently
supportive of the minor child's connection to the Mother and half-
siblings. The foster Mother has consistently sent pictures and
gifts for birth siblings at Christmas and holiday visits between
the minor child and the Mother.” Respondent argues that this
language was a direct quote from petitioner's court report. This,
however, does not preclude the court from using it to support the
court's finding. “At any permanency planning review, the court
shall consider information from . . . any . . . person or agency
which will aid it in the court's review. The court may consider
any evidence . . . that the court finds to be relevant, reliable,
and necessary . . . .” N.C. Gen. Stat. § 7B-907(b) (2005). Suchreports constitute competent evidence, and the trial court properly
relied upon them in reaching its finding of fact.
[11] Finally, respondent is correct that the trial court's
finding that “[t]he best plan of care to achieve a safe, permanent
home for the minor child within a reasonable period of time is to
grant legal guardianship to the foster parents,” was not a finding
of fact, but a conclusion of law. “'[I]f [a] finding of fact is
essentially a conclusion of law . . . it will be treated as a
conclusion of law which is reviewable on appeal.'” In re M.R.D.C.,
166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004) (quoting Smith
v. Beaufort County Hosp. Ass'n, 141 N.C. App. 203, 214, 540 S.E.2d
775, 782 (2000) (quoting Bowles Distributing Co. v. Pabst Brewing
Co., 69 N.C. App. 341, 344, 317 S.E.2d 684, 686 (1984))).
Nevertheless, this conclusion was fully supported by the trial
court's twenty-one remaining findings of fact. Accordingly, its
mislabeling was inconsequential in this case.
[12] Respondent next assigns error to the trial court's
failure to set out the rights and responsibilities that would
remain with the mother. Respondent is correct that written
findings on that matter are required by statute. See N.C. Gen.
Stat. § 7B-907(b) (2005) (“[T]he court shall . . . make written
findings regarding . . . whether legal guardianship . . . should be
established, and if so, the rights and responsibilities which
should remain with the parents . . .”). We find it pertinent that
while it failed to make such written findings, the trial court did
orally address the included issue of visitation, stating that “thatwill be up to the guardian.” We note for the trial court that
“[t]he awarding of visitation of a child is an exercise of a
judicial function, and a trial court may not delegate this function
to the custodian of a child. The trial court should not assign the
granting of . . . visitation to the discretion of the party awarded
custody . . . .” In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d
647, 652 (2005) (internal quotations and citations omitted).
Accordingly, we remand on that issue to the trial court for
clarification consistent with this opinion.
[13] Respondent also assigns error to that part of the trial
court's order relieving all parties and attorneys of further
responsibility and stating that there would be no further hearings
held in this matter. Because this part of the trial court's order
is not permitted by statute, we reverse and remand with
instructions.
The general rule is that following a permanency planning
hearing, “[s]ubsequent permanency planning hearings shall be held
at least every six months thereafter . . . to review the progress
made in finalizing the permanent plan for the juvenile, or if
necessary, to make a new permanent plan for the juvenile.” N.C.
Gen. Stat. § 7B-907(a) (2006). These hearings may be combined with
review hearings under N.C. Gen. Stat. § 7B-906. N.C. Gen. Stat. §
7B-907 (2006). The trial court may dispense with these hearings
under certain circumstances.
[T]he court may waive the holding of review
hearings required by subsection (a) of this
section, may require written reports to the
court by the agency or person holding custodyin lieu of review hearings, or order that
review hearings be held less often than every
six months, if the court finds by clear,
cogent, and convincing evidence that:
(1) The juvenile has resided with a relative
or has been in the custody of another suitable
person for a period of at least one year;
(2) The placement is stable and continuation
of the placement is in the juvenile's best
interests;
(3) Neither the juvenile's best interests nor
the rights of any party require that review
hearings be held every six months;
(4) All parties are aware that the matter may
be brought before the court for review at any
time by the filing of a motion for review or
on the court's own motion; and
(5) The court order has designated the
relative or other suitable person as the
juvenile's permanent caretaker or guardian of
the person.
The court may not waive or refuse to conduct a
review hearing if a party files a motion
seeking the review. However, if a guardian of
the person has been appointed for the juvenile
and the court has also made findings in
accordance with G.S. 7B-907 that guardianship
is the permanent plan for the juvenile, the
court shall proceed in accordance with G.S.
7B-600(b).
N.C. Gen. Stat. § 7B-906(b) (2006). The trial court failed to find
all of these criteria. Accordingly, we reverse on this issue and
remand with instructions to make the findings outlined in the
statute.
Having conducted a thorough review, we hold that respondent's
additional assignments of error are without merit. Thus, our
disposition is as follows: As regards the trial court's
modification of the permanent plan to guardianship and theappointment thereto of the foster parents, we affirm the trial
court's decision. As regards the trial court's failure to follow
this Court's mandate to hold a new termination of parental rights
hearing, we hold that the trial court committed harmless error.
Finally, as regards the trial court relieving the parties and
attorneys of any further responsibility and the trial court's order
that no further hearings be held on the matter, we reverse and
remand for further consideration in light of the instructions
contained in this opinion.
AFFIRMED in part, REVERSED AND REMANDED in part.
Judges HUNTER and MCCULLOUGH concur.
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