Appeal by respondent mother from order ceasing reunification
efforts and entering a permanent plan for adoption entered 16
October 2006 by Judge Hugh B. Lewis in Mecklenburg County District
Court. Heard in the Court of Appeals 30 April 2007.
Tyrone C. Wade, for Mecklenburg County Department of Social
Hunton & Williams, by Jason S. Thomas, guardian ad litem
attorney advocate for the minor child.
Richard Croutharmel, for respondent-appellant mother.
The minor child in this action, K.S., was born to Bonita S.
(respondent) in June 2004. At the time, respondent had three
other children. Respondent's parental rights had been terminated
as to one of these children, and another had been placed with
relatives in South Carolina. A third child resided with the
In February 2005, Mecklenburg County Department of Social
Services (DSS) learned that respondent had placed K.S. with
K.S.'s maternal grandmother in Catawba County. Shortly thereafter,
respondent removed K.S. from the grandmother's home and moved with
K.S. to Mecklenburg County, where they resided at the Salvation
Army Women's Shelter. DSS also learned that respondent had a
history of substance abuse and that she intended to enter substance
abuse treatment. Respondent began treatment in the CASCADE
program, but ceased participating in the program shortly
thereafter. She also left the Women's Shelter and moved in with afriend who was recovering from substance abuse.
subsequently began living in a crack house, and returned K.S. to
the maternal grandmother's home.
On 17 June 2005, DSS filed a juvenile petition alleging that
K.S. was dependent and neglected on the basis that respondent was
not in a position to care for K.S. and that the maternal
grandmother's home was not an appropriate placement as the maternal
grandmother had a prior history with Catawba County DSS. The
petition further alleged that respondent was five months pregnant,
was taking medications for depression and narcolepsy, and had
relapsed in her substance abuse. Based on this juvenile petition,
DSS was granted non-secure custody.
On 12 July 2005, the trial court adjudicated K.S. dependent
and neglected and entered a disposition order with a plan for
reunification with respondent and ordering respondent (1) to
complete a parenting capacity evaluation and follow any
recommendations; (2) to follow any treatment recommendations made
by Families in Recovery to Stay Together (F.I.R.S.T.); (3) to
participate in random drug screens; and (4) to remain drug and
alcohol free. The trial court found that the issues that must be
resolved to achieve reunification included respondent's substance
abuse, her ability to provide for the needs of the child, unstable
housing and employment, and lack of parenting skills. The trial
court also noted that the F.I.R.S.T. assessment reported that
respondent was receiving substance abuse and mental health
treatment and recommended that respondent seek domestic violence
counseling as well. At a review hearing on 29 September 2005, DSS reported that
respondent was residing at the CASCADE treatment center and was
eight months pregnant. DSS further reported that respondent was
appropriate with K.S. during visitation and that she and K.S. were
bonding well. In its order, the trial court ruled that respondent
needed (1) to complete a parental capacity evaluation; (2) to
continue to visit with K.S.; (3) to cooperate with the F.I.R.S.T.
program; (4) to provide information about K.S.'s father so that he
could have a background check and be included in the case plan; and
(5) to obtain housing and employment. The trial court continued
the plan of reunification, gave DSS authority to expand visitation,
and concluded that termination of parental rights was not in the
best interest of K.S.
In October 2005, respondent gave birth to C.S. Both
respondent and C.S. tested negative for drugs at birth, and C.S.
was permitted to reside with respondent at CASCADE's residential
In its report for a review hearing on 8 June 2006, DSS
reported that respondent had missed multiple meetings at CASCADE
without excuse, had missed one domestic violence program meeting,
and had stopped attending therapy sessions. While respondent had
become employed through a temporary agency, she lost the job when
she was unable to make care arrangements for C.S. DSS reported
that respondent had not gained the level of independence that
CASCADE had hoped for, but respondent was expected to move to Hope
Haven at the end of the month where she would be taught basic
living skills such as budgeting, grocery shopping, etc. Finally,DSS expressed concerns about respondent's truthfulness after
receiving conflicting reports about the circumstances of a new
pregnancy. Because respondent had not made sufficient progress to
permit K.S. to be returned after almost a full year, DSS
recommended that the trial court adopt a concurrent plan of
In its order from the 8 June 2006 review hearing, the trial
court noted that respondent had been sober for eleven months, but
had not completed either the domestic violence or therapy component
of her case plan. Notwithstanding DSS's recommendation that the
trial court adopt a concurrent plan of adoption, the trial court
maintained the status quo of the case.
At a permanency planning hearing on 21 September 2006, the
trial court reviewed a summary report from the F.I.R.S.T. Program
coordinator, in which the coordinator stated that respondent had
been clean for 434 consecutive days, had completed treatment, and
was in transition with housing. The coordinator, however,
expressed concerns about respondent's meeting the required amount
of NA/AA [meetings] as well as her engagement with a sponsor. DSS
in its report noted that respondent had made progress towards
sobriety, had successfully completed the domestic violence program,
and had acknowledged that she had made poor decisions in the past.
DSS also reported that since the last review hearing, respondent
had missed only one F.I.R.S.T. meeting and that the absence had
been excused. DSS further noted that respondent had moved to Hope
Haven and did a good job actively participating, but due to
respondent's high risk pregnancy and a work limitation placed uponher by her doctor, respondent was unable to work the necessary
eight hours per day to cover her rent. As a result, respondent
left Hope Haven and moved to the Salvation Army Shelter with C.S.
Two weeks later, respondent was transferred to the Battered Women's
Shelter after a domestic violence episode with her ex-boyfriend,
and on 5 September 2006, respondent moved from the Battered Women's
Shelter to the home of a community advocate.
Although DSS previously had recommended a concurrent plan of
adoption, DSS now recommended that the plan of reunification be
continued. Notwithstanding DSS's recommendation, the trial court
ordered that the permanent plan be changed from reunification to
adoption and termination of parental rights, and the court ordered
DSS to file a termination petition. Respondent appeals from this
permanency planning order.
 In her first assignment of error, respondent asserts that
(1) the trial court's order ceasing reunification efforts does not
contain the statutorily required findings; and (2) the findings
made by the trial court are not supported by the evidence.
Pursuant to North Carolina General Statutes, section 7B-
[a]t the conclusion of the [permanency
planning review] 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
(2) Where the juvenile's return homeis unlikely within six months,
whether legal guardianship or
custody with a relative or some
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
(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
N.C. Gen. Stat. . 7B-907(b) (2005). This Court has held that it is
reversible error for the trial court to enter a permanency planning
order that continues custody with DSS without making proper
findings as to the relevant statutory criteria. See, e.g.
, In re
, 165 N.C. App. 509, 598 S.E.2d 658 (2004). Additionally, the
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 511, 598 S.E.2d at 660 (quoting Quick v.
, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)).
, this Court found that the trial court failed to
comply with section 7B-907(b) when the trial court entered a
cursory two page order and did not incorporate any prior ordersor findings of fact from those orders. Instead, the trial court
incorporated a court report from DSS and a mental health report .
. . as a finding of fact. Id.
Much as in J.S.
, the trial court in
the case sub judice
incorporated a DSS report, and as this Court
stated, it is permissible for trial courts to consider all written
reports and materials submitted in connection with [juvenile]
, however, the trial court did not
limit its fact-finding to the contents of the DSS report but also
made its own, specific findings of fact with respect to several
(See footnote 1)
the criteria enumerated in section 7B-907(b). Accordingly, to the
extent that respondent argues that the trial court did not follow
the statutory mandate provided in section 7B-907(b), respondent's
assignment of error is overruled.
 Respondent also asserts that the trial court's findings of
fact are not supported by competent evidence. All dispositional
orders of the trial court in abuse, neglect and dependency hearings
must contain findings of fact based upon the credible evidence
presented at the hearing. In re Eckard
, 144 N.C. App. 187, 197,
547 S.E.2d 835, 841 (citations omitted), remanded on other grounds
354 N.C. 362, 556 S.E.2d 299 (2001). As this Court has clarified,
[w]here the trial court's findings are supported by competent
evidence, they are binding on appeal, even if there is evidence
which would support a finding to the contrary
, 165 N.C. App.
at 511, 598 S.E.2d at 660 (emphasis added). Where a trial court's
findings are not supported by competent evidence, however, thisCourt will reverse a trial court's permanency planning order. See,
, In re D.L.
, 166 N.C. App. 574, 584.85, 603 S.E.2d 376, 383
In the case sub judice
, respondent correctly notes that the
guardian ad litem
did not submit a report, respondent did not
testify on her own behalf, and the parenting capacity evaluation
report referenced by the attorney for the guardian ad litem
proffered as evidence. Additionally, the bulk of the hearing was
devoted to arguments presented by respondent's attorney, DSS's
attorney, and the attorney for the guardian ad litem
, and it is
well-established that [s]tatements by an attorney are not
considered evidence. Id.
at 582, 603 S.E.2d at 382 (citing State
, 79 N.C. App. 656, 658, 339 S.E.2d 832, 834 (1986)).
Consequently, respondent contends that the trial court erred
because [a] broad reference to facts contained in outside reports
coupled with conclusory statements in the order and no witness
testimony whatsoever fails to sufficiently address the factors
enumerated in N.C. Gen. Stat. § 7B-907.
However, the trial court heard testimony from Roslyn Jones, a
social worker assigned to the case, as well as Cynthia Janeiro-
Elke, the guardian ad litem
appointed to represent K.S.
(See footnote 2)
court also received the following items into evidence: a summary
report submitted by DSS, a reasonable efforts report prepared by
DSS, and a status report provided by the F.I.R.S.T. program
coordinator. The court did not merely incorporate these reports asfindings; rather, the court paid particular attention to certain
portions of those reports and based its findings of fact in part on
those reports. For example, the trial court explained:
The Court is going to accept the [DSS] Court
Summary, the first [sic] report, reasonable
efforts report. The Court wants to draw
specific attention to the last paragraph of
the family history relative to the number of
the [sic] pregnancies that the mother in this
matter has had.
Additionally, and contrary to respondent's contentions, the trial
court did not adopt lock-stock-and-barrel DSS's summary and
recommendations. Indeed, the trial court declined to follow DSS's
recommendation that reunification be pursued, and North Carolina
caselaw is replete with situations where the trial court declines
to follow a DSS recommendation. In re Rholetter
, 162 N.C. App.
653, 664, 592 S.E.2d 237, 244 (2004). In sum, the trial court did
not merely recite allegations or broadly incorporate DSS's reports,
and the trial court did not use the DSS report as a substitute for
its own independent review. In re M.R.D.C.
, 166 N.C. App. 693,
698, 603 S.E.2d 890, 893 (2004), disc. rev. denied
, 359 N.C. 321,
611 S.E.2d 413 (2005). Accordingly, we decline to hold that the
trial court improperly delegated its fact-finding duty.
 With respect to the particular findings challenged on
appeal, respondent first contends that the trial court's finding
of fact number 2 is not supported by competent evidence.
Specifically, respondent challenges the court's finding that
concerns persist with respect to respondent's attending meetings
and engaging her sponsor. This finding, however, is supported by
the F.I.R.S.T. Program status report, in which the case coordinatornoted, We do have concerns [with respondent] meeting the required
number of NA/AA [meetings] as well as her engagement with a
sponsor. The DSS summary, however, noted that [s]ince the last
Court Hearing, [respondent] has missed one meeting and that her
absence had been excused. Nevertheless, the trial court's finding
is supported by competent evidence, even though there is evidence
which would support a finding to the contrary. J.S.
, 165 N.C. App.
at 511, 598 S.E.2d at 660.
 Respondent next challenges finding of fact number 3,
wherein the trial court found that [respondent] ceased
participation in individual therapy. She was involved in a
domestic violence incident since the last hearing. She does not
have housing nor [sic] income. Once again, this finding is
supported by competent evidence.
First, DSS noted in its summary that respondent was
participating in individual therapy with Ms. Tamara Baldwin [at]
BHC, but she stopped going. Although respondent attended an
intake appointment on 15 September 2006, she did so only after the
therapist explained to her the importance of her participating in
individual therapy to help her address some of [the] issues that
she continues to struggle with. Thus, although there is evidence
in the record that respondent attended one meeting, there also is
evidence supporting the trial court's finding that she ceased
participating in individual therapy.
With respect to the domestic violence incident, the DSS
summary notes that respondent was transferred to the Battered
Women Shelter after she had a [domestic violence] episode with herex-boyfriend . . . . [Respondent] went to Victim's Assistance [and]
took out a [restraining order] on him. Respondent does not
dispute that she was involved in a domestic violence incident.
Rather, respondent contends that (1) she was the victim in the
incident; (2) we cannot pick and choose when we are going to be
victims of crime; and (3) she responded appropriately to the
incident by relocating and obtaining a restraining order. As such,
respondent does not challenge the particular finding itself but
rather whether this finding supports the court's conclusion that
returning custody of K.S. to respondent would not be in K.S.'s best
interest. Respondent, however, did not assign error on this basis,
and this Court's review is limited to the assignments of error set
out in the record on appeal. See
N.C. R. App. P. 10(a) (2006).
Thus, respondent has failed to preserve this argument for appellate
Respondent further challenges the court's finding that she was
without housing or income. The trial court correctly found that
respondent is homeless based on the DSS summary reporting that
after moving out of the Salvation Army Shelter and then the
Battered Women's Shelter, respondent moved in with a community
advocate while awaiting placement with Florence Crittenton
Services. The F.I.R.S.T. report also noted that respondent had not
secured housing but rather was in transition [with] housing.
Additionally, since moving out of Hope Haven, respondent has not
had a job or any income with which to support her children and
herself. Once again, respondent's assignment of error only
challenges the finding on the ground that it is unsupported bycompetent evidence. Respondent's assignment of error does not
challenge whether the finding was used improperly to support the
court's conclusions, which respondent argues in her brief, and
thus, respondent has waived this argument. See id.
 Respondent next challenges finding of fact number 4, in
which the trial court found:
It is not possible for the juvenile(s) to be
returned home immediately or within the next 6
months nor is it in the juvenile(s)' best
interest to return home because: [Respondent]
exhibits an inability to refrain from
inappropriate sexual activity. She has had at
least 3 pregnancies in 3 years. She continues
to exhibit poor decision-making.
[Respondent's] parental rights have been
terminated to another child. She has two
other children not in her custody.
[Respondent] has not reasonably complied with
her case plan.
Respondent takes particular issue with the court's finding that she
engaged in inappropriate sexual activity. In her brief, she
implies that the trial court harbored political motivations,
which she characterized as a personal disdain for fornication,
and that the trial court improperly condemned her based upon the
court's own set of values. We find such argument to be without
First, this Court previously has employed terminology similar
to that used in finding of fact number 4. See, e.g.
, In re Guynn
113 N.C. App. 114, 119, 437 S.E.2d 532, 535 (1992) (noting that
the mother is incapable of properly caring for and supervising the
child as a result of, inter alia
, inappropriate sexual
(emphasis added)). Second, the record is clear as
to what the trial court meant by inappropriate sexual activity. At the permanency planning hearing, the trial court stated,
I'm going to state [sic] myself out and
probably be very politically incorrect here.
I make a specific finding of fact that this
mother has not exhibited common sense when it
comes to motherhood or being pregnant or her
sexual activity. She has exhibited that
history throughout this case plan. I have
nothing that convinces me that she won't
continue that process. And that means that
every child she ever has is going to be put in
jeopardy. . . . Based on the mother's
inability to refrain from having unprotected
sexual intercourse that continually gets her
pregnant, she's not going to _ this child is
not going be able to be returned home
immediately or within the next six months.
And it's not in the juvenile's best interest
to return home.
The trial court did not express any value judgment on
fornication, but rather, the court properly explained that
respondent's unprotected sexual intercourse resulting in numerous
unplanned pregnancies placed K.S.'s welfare in jeopardy, if for no
other reason than straining her already limited resources,
including the time and money she could devote to caring for K.S.
The record fully supports the court's finding that respondent had
at least 3 pregnancies in 3 years, and respondent could not name
with certainty the fathers of her children. The court's finding
that respondent engaged in inappropriate sexual activity is
supported by competent evidence, and this finding, in turn,
supports the trial court's finding that respondent had exercised
poor decision-making and had failed to exercise common sense with
respect to sexual activity.
Respondent, however, claims [i]t was not reasonable for the
trial court to have found that [respondent] failed to exercise
common sense, because (1) she had not been told previously by thecourt or DSS to refrain from unprotected sex; and (2) she has a
borderline range of functioning with an IQ of 76. We decline,
however, to impose a duty on trial courts to warn against the
obvious dangers of unprotected sexual activity, and furthermore, a
trial court is not required to alter its decision as to whether a
parent is capable of providing proper care for a child based upon
the parent's IQ. In fact, North Carolina General Statutes, section
7B-1111(a)(6) expressly allows for the termination of parental
rights in situations where a parent lacks adequate cognitive
N.C. Gen. Stat. . 7B-1111(a)(6) (2005) (providing
that parental rights may be terminated if the parent is incapable
of providing for the proper care and supervision of the juvenile
and [i]ncapability under this subdivision may be the result of .
. . mental retardation, mental illness, organic brain syndrome, or
any other cause or condition that renders the parent unable or
unavailable to parent the juvenile.).
In sum, respondent cannot
use her purported IQ of 76 as a shield against the trial court's
finding that she failed to exercise common sense.
 Next, respondent contends that the trial court erred in
finding that respondent's parental rights to another child had been
terminated previously. Respondent does not dispute the truth of
the finding, but instead, contends that (1) the trial court had not
been concerned with this prior termination in any of its hearings
leading up to the permanency planning hearing at which
reunification efforts were ceased, and thus, the court made the
finding at the last second to justify [its] decision; and (2) the
trial court should have been required to find that respondent wasunwilling or unable to establish a safe home because, although
section 7B-507(b) does not require such a finding, to ignore this
component at the cease reunification efforts stage is incongruent
with section 7B-1111(a)(9), pursuant to which such a finding is
required to terminate parental rights. Respondent, however, has
cited no authority for her contentions and has not assigned error
to the trial court's finding on either of these grounds. See
R. App. P. 28(b)(6) (2006); N.C. R. App. P. 10(a) (2006). As
such, we decline to review her arguments.
 Respondent further contends that the trial court erred in
finding that she has not reasonably complied with her case plan.
On 18 July 2005, the trial court ordered respondent to
participate in a screening and assessment to
be conducted by staff of the Mecklenburg
County F.I.R.S.T. Program. [Respondent] shall
also comply with all recommendations made to
them for substance abuse/mental
health/domestic violence treatment,
participate in random drug screens and remain
drug and alcohol free.
The trial court also adopted DSS's Out of Home Family Services
Agreement, pursuant to which respondent was required to obtain
appropriate [and safe] housing [and] income.
Respondent participated in the F.I.R.S.T. screening and
assessment, and the F.I.R.S.T. Program case coordinator
consistently reported that respondent was in substantial compliance
with the program. DSS also reported that respondent had
successfully completed the domestic violence program.
Although it appears that respondent complied with her case
plan to the extent that it required her to undergo substance abuse
treatment and domestic violence counseling, she did not comply withother aspects of her case plan. First, the trial court found that
[respondent] ceased participation in individual therapy, and as
, this finding of fact was supported by competent
evidence. Second, respondent failed to comply with her case plan
to the extent it required her to secure safe housing and income.
On 10 July 2006, the court reiterated the requirement that
respondent was to obtain appropriate housing and income in order
for reunification to remain the goal. At the permanency planning
hearing, over fourteen months after the trial court adopted the
signed Out of Home Family Services Agreement in which respondent
agreed to obtain safe housing and income, the trial court found
that respondent still had not secured housing or employment. As
, this finding is supported by competent evidence,
and thus, the trial court's finding that respondent had not
reasonably complied with her case plan is supported by competent
evidence. Accordingly, respondent's argument is overruled.
 In her final argument with respect to the trial court's
findings of fact, respondent disputes the portion of finding of
fact number 15 in which the trial court noted that [t]he GAL
raised concern regarding the juvenile having R.A.D.S. due to lack
of permanent placement. Specifically, respondent contends (1)
that there is no evidence in the record to establish what the trial
court meant by R.A.D.S.; and (2) [r]egardless of what [it]
mean[s], there is no evidence in the record to support such a
concern. Although the trial court may have meant reactiveattachment disorder,
(See footnote 3)
respondent is correct that the only
reference to K.S. developing R.A.D. or R.A.D.S. is the guardian
attorney's statement that we are setting this child up to
become a RAD child where she's going to have some significant
attachment issues. The guardian ad litem
, however, did not submit
a report expressing such concerns, and as discussed supra
[s]tatements by an attorney are not considered evidence. D.L.
166 N.C. App. at 582, 603 S.E.2d at 382 (citation omitted). As
there is no competent evidence in the record to support the trial
court's finding regarding R.A.D.S., the trial court erred in making
such a finding.
Nevertheless, the remaining findings of fact upheld by this
Court, including respondent's failure to secure housing or income,
are sufficient to support the trial court's conclusion that
returning K.S. to respondent would be contrary to K.S.'s best
interest and that reasonable efforts to reunify should be
suspended. See In re J.C.S.
, 164 N.C. App. 96, 106, 595 S.E.2d 155,
161 (2004) (Appellate review of a permanency planning order islimited to whether there is competent evidence in the record to
support the findings and the findings support the conclusions of
 In her second assignment of error, respondent contends
that the trial court made conflicting orders with respect to her
visitation with K.S. Specifically, during the permanency planning
hearing, the trial court ruled that [a]ll visits . . . are
ceased. In its written order, however, the trial court provided
that visitation between respondent and K.S. was to continue
contingent upon [respondent's] progress and compliance with [the]
case plan and that visitation was to take place [a]ccording to
the visitation schedule.
It is well-established that an order rendered in open court
is not enforceable until it is 'entered,' i.e.
, until it is reduced
to writing, signed by the judge, and filed with the clerk of
court. In re L.L.
, 172 N.C. App. 689, 698, 616 S.E.2d 392, 397
(2005) (internal quotation marks and citations omitted);
State v. Gary
, 132 N.C. App. 40, 42, 510 S.E.2d 387, 388, cert.
, 350 N.C. 312, 535 S.E.2d 35 (1999)
. Thus, the trial
court's oral ruling denying visitation was not final, and the court
had the authority to alter its ruling in its written order.
Nevertheless, we must remand this case for clarification as to
respondent's visitation rights. The trial court provided in its
order that visitation was to take place [a]ccording to the
visitation schedule, but the record is devoid of such a visitation
schedule or any other visitation plan in effect. As this Court has
explained, [a]n appropriate visitation plan must provide
for a minimum outline of visitation, such as
the time, place, and conditions under which
visitation may be exercised. The trial court
may also in its order, however, grant some
good faith discretion to the person in whose
custody the child is placed to suspend
visitation if such visitation is detrimental
to the child.
In re E.C.
, 174 N.C. App. 517, 523, 621 S.E.2d 647, 652 (2005)
(internal citation omitted). DSS, therefore, must submit a
visitation plan to the court for approval. See In re D.S.A.
N.C. App. 715, 721, 641 S.E.2d 18, 23 (2007). Accordingly, this
case must be remanded for clarification of respondent's visitation
Affirmed in part; Remanded in part.
Judges STEPHENS and STROUD.