IN THE MATTER OF:
R.B. and A.M., No. 04-JA-244
Minor Children No. 04-JA-245
Appeal by Respondent-mother from permanency planning orders
filed 23 November 2005 by Judge R. Les Turner in Wayne County
District Court. Heard in the Court of Appeals 19 October 2006.
Jeffrey L. Miller for Respondent-Appellant.
E.B. Borden Parker for Petitioner-Appellee.
Amanda A. Volz for Guardian ad Litem-Appellee.
Respondent-Appellant (Respondent) is the mother of R.B. and A.M., the juveniles who are the subject of this appeal. (See footnote 1) In separate juvenile petitions, filed 10 November 2004, the Wayne County Department of Social Services (DSS) alleged that both juveniles were neglected in that they live in an environment injurious to [their] welfare. Specifically, the petitions alleged that [t]here was an ex parte order entered in Wayne County in 2003concerning Domestic Violence between [Respondent] and [A.M.'s father]. [Respondent] previously had a registered sex offender living in the home, which led to the removal of L.B. A hearing regarding these children was held in Wayne County District Court on 29 November 2004. After the hearing, in two orders filed 7 January 2005, each addressing an individual child, the Honorable Rose Vaughn Williams found that Respondent admitted that, at the time of the filing of the petition, each juvenile was a neglected juvenile and that there were sufficient facts for the Court to make such findings. The trial court thus found the juveniles to be neglected, but continued custody with Respondent, provided she complies with this order. Judge Williams then ordered Respondent to:
[A]ttend therapy with the juvenile, L.B., when the therapist deems it necessary for her to do so.
[C]omplete a psychological evaluation and follow the recommendations made by the evaluator.
[C]ooperate with . . . [DSS] and the guardian ad litem.
[A]ttend and successfully complete anger management classes.
[A]ttend parenting classes.
[S]ubmit to random drug tests.
[F]acilitate the visitation between and among all of her children.
On 6 January 2005, Respondent was scheduled to appear before Judge Williams at a review hearing regarding her progress and the welfare of her children. However, Respondent failed to attend the hearing and the trial court found that she was not present in Court and the Court does not know the whereabouts of [Respondent] nor the juvenile[s]. Judge Williams found further that Respondent hasnot complied with the previous order[s] of the Court[,] and ordered the matter continued until 20 January 2005. Respondent again failed to appear for the 20 January 2005 hearing, and Judge Williams ordered that the children be placed in the nonsecure custody of DSS.
Respondent then appeared at the 27 January, 14 April, and 8 August 2005 hearings in which custody was continued with DSS. After the 27 January 2005 hearing, the Honorable Joseph E. Setzer, Jr. authorized DSS to place each child in the home of Steven and Doris Johnson, R.B.'s grandfather and step-grandmother. At the conclusion of the 8 August 2005 hearing, the Honorable R. Les Turner ordered the permanency planning hearing to be held on 27 October 2005. At that hearing, the evidence tended to show the following:
Tammy Oxendine, a foster care social worker for DSS, testified that during a previous hearing, Respondent provided DSS with her alleged home address and a telephone number for her employer. However, when Ms. Oxendine attempted to verify this information, she learned that Respondent did not live at the address she provided, and that her employer's phone had been disconnected. Ms. Oxendine testified further that she had had contact with Respondent since the previous hearing, but Respondent never informed her that her address had changed or that her employer's phone had been disconnected.
Respondent testified that she had provided DSS her current address and that she has received mail from DSS at her currentresidence. She also indicated that she provided DSS with her telephone contact numbers, including a number for a cellular phone. Her new residence, in which she has lived for four months, has three bedrooms, a living room, a kitchen, and a bathroom. It is a wood and brick structure and she lives in the home with her father, when he is in Wayne County. Respondent testified that R.B. and A.M. would have their own bedroom in the house. Respondent testified further that she works at a laundry business called the Laundry Room, and that Ms. Oxendine could not locate the business because it is in the process of moving to Wilson County. Although the Laundry Room is changing locations, Respondent's continued employment has been confirmed by her employer. Overall, Respondent feels that she is able to care for her children.
With regard to visitation the testimony indicated that, during a supervised visit three weeks earlier, Respondent left before the visit could begin because, according to Respondent, Mrs. Johnson would not let her have any contact with the children and . . . was embarrassing her in front of other people at the park[.] During her testimony, Ms. Oxendine explained that Mrs. Johnson would not allow the children to visit with Respondent because the court had required supervised visitation and a DSS worker had yet to arrive. More generally, Ms. Oxendine indicated that [s]ome of the visits have gone very well. However, during some scheduled visits, R.B. has asked Ms. Oxendine how much longer the visit was because he wanted it to end. There have been visits where the children just didn't interact with [Respondent]. During their last two visits,the children have informed Ms. Oxendine that they desired to be with the Johnsons. The children seem bonded with the Johnsons and seem to be happy to have some stability in their lives. Respondent testified that she has had sporadic visits with her children, and that her phone contact with her children has been reduced over time.
By previous court order, Respondent was required to complete individual therapy, attend anger management, complete a psychological evaluation, maintain stable housing, and maintain employment. By the time of the hearing, she had completed most requirements, but had failed to complete a psychological evaluation. Ms. Oxendine testified that she was recommending guardianship of the children, rather than reunification with Respondent, because Respondent had not completed a psychological evaluation and because she could not determine whether Respondent's housing situation was stable or whether she was employed.
With regard to the psychological evaluation, Respondent testified that, although her evaluator had difficulty acquiring information from DSS, she took a psychological test but the evaluator informed her that it wouldn't be in [her] best interest for him to submit anything. Since then, Respondent has made an appointment for a psychological evaluation with another service provider, called Eastpointe, but the woman with whom she made the appointment subsequently went on maternity leave. Respondent has taken no further action to comply with the court orders on this issue since March or April 2005. Ms. Oxendine testified further that the agency was recommending guardianship of the children with the Johnsons and that although they are not blood relatives to all of the children, they do not treat A.M. differently than they treat R.B. At the end of the hearing, in orders filed 23 November 2005, Judge Turner determined that the permanent plan regarding each juvenile is changed to custody of the juvenile remaining with Steven and Doris Johnson with Steven and Doris Johnson being designated as guardians[.] From this order, Respondent appeals. We affirm the order in part, vacate the order in part, and remand the case to the trial court.
(c) If an appellee fails to file and serve his
brief within the time allowed, he may not beheard in oral argument except by permission of
N.C. R. App. P. 13(a)(1); 13(c). In this case, Respondent's brief was served on DSS, by mail, on 11 May 2006. Rule 27 of the North Carolina Rules of Appellate Procedure provides that [w]henever a party has the right to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period. N.C. R. App. P. 27(b). Therefore, under Rule 13 and Rule 27, DSS was required to serve its brief on Respondent by 13 June 2006. However, DSS's brief was not filed in this Court until 3 July 2006 and was not served on Respondent until 30 June 2006, in clear violation of Rule 13, thus subjecting DSS to appropriate sanctions. However, as this case, pursuant to Rule 30(f), was not scheduled for oral argument, the appropriate sanction under Rule 13 (disallowing oral argument of appellee whose brief is not timely filed and served) is not applicable. Therefore, we may only impose sanctions, including striking the brief, under Rule 25 and Rule 34.
While this Court takes violations of the appellate rules very seriously, because this case deals with guardianship of juveniles and because Respondent did not allege that she suffered any prejudice from the delay in being served with DSS's brief, we choose not to impose sanctions upon DSS's counsel. However, we caution DSS's attorney that the proper approach would have been to move the Court for an extension of time in which to file and serve the brief or, alternatively, to move the Court to deem the brieftimely filed and served. Respondent's Motion to Dismiss and Strike Petitioner-Appellee DSS' [sic] Brief[,] on Rule 13 grounds, is denied.
19. That in describing the home where she now
lives, the mother stated that her father
stayed with her when he is in Wayne
County and that she had room for this
. . . .
27. That the mother left a visit approximately 3 weeks ago because the social worker was not present on time and the custodian would not allow the mother to have contact with the juvenile until the social worker arrived. The social worker and the mother talked by telephone and the social worker informed the mother she would be at the visit and was running less than 5 minutes late.
28. That it does not appear to the Court that the mother has conquered her anger problems.
. . . .
31. That the juvenile is well bonded with the
32. That Steven and Doris Johnson are fit and proper persons to have the continued custody of the juvenile and to be designated as the guardian of the juvenile.
33. That the petitioner recommends that the permanent plan for the juvenile be changed from reunification to placementand guardianship with Steven and Doris Johnson.
. . . .
35. That the Johnsons have added two bedrooms
to their home to ensure that the juvenile
and the half-siblings of the juvenile
have a place with them.
These findings are sufficient to meet the requirements under N.C. Gen. Stat. § 7B-907(b). Specifically, we hold that (1) the requirements under section 7B-907(b)(1) are met by findings of fact 14, 15, 19, 27, and 28; (2) the requirements under section 7B- 907(b)(2) are met by findings of fact 31, 32, 33, and 35; (3) the requirements under section 7B-907(b)(3) are implicitly met by findings of fact 31, 32, 33, and 35; and (4) the requirements under section 7B-907(b)(4) are met by findings of fact 31, 32, 33, and 35.
With respect to Respondent's argument that the trial court erred by not making any findings under N.C. Gen. Stat. § 7B- 907(b)(5), we hold that because this was the initial permanency planning hearing, there was no permanent plan with which DSS had to comply. Respondent's arguments regarding the sufficiency of the trial court's findings are without merit.
However, Respondent additionally argues that the trial court erred in the visitation decision it made, by determining [t]hat visitation between [each] juvenile and the mother shall be supervised by the custodians and shall be in the discretion of the custodians, but shall not be unreasonably prevented. We agree and therefore remand this case to the trial court to amend the order. In In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971), this Court held that when visitation rights are awarded, it is the exercise of a judicial function. We do not think that the exercise of this judicial function may be properly delegated by the court to the custodian of the child. The rationale underlying this decision is that when the discretion to provide visitation is granted to the custodian of a child, it may result in a complete denial of the right[.] Id. Based on the direction provided by this Court in Stancil, we hold that the trial court erred by leaving visitation within the discretion of the Johnsons. We thus vacate that portion of the court's permanency planning order and remand this case to the trial court to issue a new order on visitation between Respondent and her children consistent with this opinion and the Stancil holding.
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