Converted WP file 060324-1

Appeal by respondent-mother from order entered 5 November 2004 by Judge J. Henry Banks in Vance County District Court. Heard in the Court of Appeals 23 January 2007.

Peter Wood, for respondent-appellant.

No brief filed for petitioner-appellee Vance County Department of Social Services or for Guardian ad Litem.

STEELMAN, Judge.

    When the trial court makes no finding regarding respondent's lack of “an appropriate alternative child care arrangement[,]” an adjudication of dependency cannot be sustained. Further, when the trial court's findings of fact are not supported by clear, cogent, and convincing evidence, the findings are insufficient to support the trial court's conclusion that the children were dependent juveniles.
    A.M.P. was born to Shandalin Person (“respondent”) on 20 November 2001, and began residing with Gracie Coleman in January 2005. A.D.H. was born to respondent on 8 July 2003, and began residing with his grandfather, Frank Williams, in October 2003. A.S.H. was born to respondent on 7 December 2004, and since her birth, has resided with Gloria Perez. Respondent placed her children with relatives when she became unable to care for them.
    On 7 September 2005, the trial court conducted an adjudication hearing, and on 4 November 2005, the court entered orders adjudicating A.D.H, A.S.H., and A.M.P. neglected and dependent juveniles. The court placed custody of A.D.H. with Frank Williams, A.S.H. with Gloria Perez, and A.M.P. with Gracie Coleman. Respondent appeals from these orders.
    In her argument on appeal, respondent contends that the findings of fact in the orders adjudicating the juveniles neglected and dependent are not supported by clear, cogent, and convincing evidence, as required by N.C. Gen. Stat. §§ 7B-805 and 7B-807 (2005), and the findings do not support the trial court's conclusions of law. We agree.
    We initially note that the trial court erred in entering an order adjudicating the children neglected when the DSS attorney explicitly stated at the hearing, “[y]our Honor, for the record, we're proceeding on dependency and not neglect.” Therefore, we review only the portion of the trial court's order adjudicating the children dependent.
    A proper review of a trial court's adjudication of dependency entails a determination of “whether the findings of fact are supported by clear and convincing evidence,” and “whether the legal conclusions are supported by the findings of fact[.]” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)(quotation omitted). “The 'clear and convincing' standard 'is greater than the preponderance of the evidence standard required in most civil cases.'” In re J.A.G., 172 N.C. App. 708, 712, 617 S.E.2d 325, 329 (2005) (quoting In re Smith, 146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001)). “Clear and convincing evidence is evidence which should fully convince.” Id. (quotation omitted).
    The following are the virtually identical findings of fact challenged by respondent in the trial court's consecutive adjudication orders regarding the three children. In the order adjudicating A.D.H. dependent, respondent challenges the findings:
        2)     That the juvenile [A.D.H.] began residing with the grandfather October 2003 due to Respondent's inability to provide stable housing and to care for the juvenile.

        3)     That while the Department continued to provide case management services for the Respondent, juvenile and his siblings, the Respondent-Mother continued to use drugs and to refuse random drug screens.

In the order adjudicating A.S.H. dependent, respondent challenges the findings:

        2)     That the juvenile [A.S.H.] began residing with the cousin, Gloria Perez, since birth due to Respondent's inability to provide stable housing and to care for the juvenile.

        3)     That while the Department continued to provide case management services for the Respondent, juvenile and her siblings, the Respondent-Mother continued to use drugs and to refuse random drug screens.

In the order adjudicating A.M.P. dependent, respondent challenges the findings:
        2)    That the juvenile [A.M.P.] began residing with Gracie Coleman January 2005 due to Respondent's inability to provide stable housing and to care for the juvenile.

        3)     That while the Department continued to provide case management services for the Respondent, juvenile and his siblings, the Respondent-Mother continued to use drugs and to refuse random drug screens.
    A dependent child is defined as “[a] juvenile in need of assistance or placement because the juvenile['s] . . . parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9) (2005). “Under this definition, the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
    In the instant case, the findings of fact and the evidence upon which the trial court relied for its orders are sparse. At the hearing, Dana Lyles, the supervisor for the child protective service unit for Vance County DSS, testified that “[DSS] investigated the allegations that the mom did not have a home, that she could not provide stable and proper care[.]” However, Lyles did not testify as to the conclusions DSS reached after investigating these allegations. Lyles never actually confirmed the mother's living situation. When asked whether respondent had a job, Lyles responded, “I don't believe she works.” Counsel thenasked, “[y]ou don't have any information that she works. Is that what you're saying?” Lyles replied, “[r]ight.”
    The court also failed to make a finding regarding respondent's lack of “an appropriate alternative child care arrangement,” and the evidence suggests the contrary, that respondent made alternative child care arrangements for A.D.H, A.S.H., and A.M.P. before DSS intervened. Lyles testified that “[t]he kids were already placed with relatives once we got the report[,]” and that “the Department didn't actually remove the children[.]” Counsel pointed out “that [respondent] placed them in the same homes that [DSS said] that they should be placed in.” DSS recommended to the court that it was in the best interest of the children to remain in their current homes. Yet, DSS urged the trial court to find that respondent lacked “an appropriate alternative child care arrangement[.]” N.C. Gen. Stat. § 7B-101(9) (2005).
    We conclude that the decision of In re P.M., 169 N.C. App. 423, 610 S.E.2d 403 (2005), is controlling on this issue. As in the instant case, the trial court in P.M. did not address the second prong of the dependency definition. The trial court made no finding regarding respondent's lack of “an appropriate alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9) (2005). This Court reversed and remanded the trial court's order adjudicating the child in P.M. dependent.
    We hold the foregoing evidence is not the clear, cogent, and convincing evidence necessary to sustain the trial court's finding of fact, number two, that respondent was unable “to provide stablehousing and to care for the juvenile[s].” Furthermore, in light of In re P.M., we hold that there were insufficient findings to support the court's conclusion that the children were dependent, because the trial court made no finding regarding respondent's lack of “an appropriate alternative child care arrangement.”
    With regard to drug tests, Lyles testified that “we did ask her to take drug tests, but she did refuse when we could find her. So, we were trying to look into the allegations for substance abuse.” Again, Lyles did not testify as to the conclusions DSS reached after “looking into the allegations[.]” Lyles testified that “[respondent has] taken one that I know of that was negative”:
        Q:     She passed the only drug screen that's actually been taken since the case started. Is that correct?

        A:     We attempted to do a drug test June 29th. No one was at the home.

        Q:     The question is, she's passed the only one that has been conducted since the beginning of this case. Is that correct?

        A:     The only one that she's taken she's passed. We've tried to do other ones.
We hold that this evidence is not the clear, cogent, and convincing evidence necessary to sustain the trial court's finding of fact, number three, that respondent “continued to use drugs[.]”
    After careful review of the record, we conclude that the foregoing findings of fact were not supported by clear, cogent, and convincing evidence, and furthermore, the findings were insufficient to support the trial court's conclusion that the child was a dependent child. We reverse and remand these orders forfurther findings of fact. The trial court shall have the discretion to take further evidence in making these findings.
    Because we reverse the trial court's order adjudicating the children dependent, we do not reach respondent's remaining arguments in her brief.
    REVERSED AND REMANDED.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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