IN THE MATTER OF: N.S. Lee County
No. 05 J 66
Beverly D. Basden, P.C., by Beverly D. Basden, for Petitioner-
Appellee.
Leslie R. Nydick for Respondent-Appellant.
McGEE, Judge.
Respondent A.S., mother of dependent juvenile N.S., appeals
from an order of the trial court relieving Petitioner Lee County
Department of Social Services (DSS) of further efforts toward
reunification and awarding guardianship of N.S. to N.S.'s maternal
grandmother, D.M.
DSS obtained non-secure custody of N.S. and filed a petition
on 23 August 2005 alleging that N.S. was a dependent juvenile, in
that Respondent was "unable to provide for [N.S.'s] care or
supervision and lacks an appropriate alternative child care
arrangement." The trial court entered an order on 30 August 2005,
placing N.S. in the non-secure custody of D.M. and appointing a
guardian ad litem to represent Respondent. The trial court found
that Respondent failed to attend a substance abuse assessmentscheduled by DSS, to obtain employment or housing, or to comply
with DSS's "request to make a self-referral to Sandhills Mental
Health[.]"
After granting a series of continuances at the request of the
parties, the trial court held a hearing on the petition on 22
November 2005. Respondent, her counsel, and her guardian ad litem
were present at the hearing.
DSS caseworker Diane Suave testified to the following at the
adjudicatory stage of the hearing. N.S. was born in mid-May 2005
with cocaine in her system and six digits on each hand. DSS
received a referral on the child and began its investigation the
following day. Based on its initial investigation, DSS determined
that N.S. would be able to live with Respondent and decided to "put
services in place . . . to keep [N.S.] in the home with
[Respondent]." Respondent and N.S. were released from the hospital
when N.S. was five days old. Respondent went to her sister's
house, contacted D.M., and asked her to come pick up N.S. and take
care of N.S. N.S. had been with D.M. for all but two days since
leaving the hospital.
In the six months of Suave's involvement with her case,
Respondent had refused to cooperate with DSS. Suave described the
incident which led to DSS seeking non-secure custody of the child
in August of 2005:
[O]n August 8th[,] [Respondent] removed [N.S.]
from [D.M.'s] home. And it was raining and
[Respondent] walked across town with [N.S.] in
the rain. And when the social worker talked
with [Respondent] and the police located
[N.S.], it was deemed that it was anappropriate place for [N.S.] with [Respondent]
at the sister's home. By the time I went over
there to follow up on this, [Respondent] had
given [N.S.] to a female cousin and she would
not cooperate as to giving me the name of the
cousin, the address, or a telephone number.
And a period of two weeks went by before I
could even assess the safety of [N.S.], during
which time, . . . [D.M.] . . . did not even
know where [N.S.] was.
Suave noted that Respondent failed to attend two appointments for
a substance abuse assessment.
Both Respondent's counsel and the guardian ad litem for
Respondent stipulated to N.S.'s status as a dependent juvenile, as
alleged by DSS in its petition.
At disposition, DSS submitted a written report to the trial
court, which included information from Lee County Child Support
Enforcement that Respondent had six additional children who did not
reside with her, and that she was in arrears with her child support
obligation. In addition to reiterating Respondent's refusal to
participate in the development of a case plan or substance abuse
treatment, and her failure to obtain housing or employment, the
report noted that Respondent had failed to provide D.M. "with basic
needs such as diapers, wipes, clothes, etc." for N.S.'s care. DSS
asked the trial court to award guardianship of N.S. to D.M., based
on Respondent's failure to "cooperate[] in any way" with its
attempt to work with her.
Respondent testified at disposition, claiming she missed her
first scheduled substance abuse assessment because she overslept.
She missed the second appointment because DSS mailed the paperwork
to the wrong address. Although DSS claimed to have made anappointment for her to attend parenting classes, Respondent denied
receiving the paperwork regarding the appointment. When she asked
DSS employees for housing assistance, she was told she "would have
to find a job first." Respondent applied for several jobs but was
unable to get any potential employers to call her back.
Respondent claimed that she had lived with N.S. for two months
at her sister's residence and was visited weekly by the DSS
caseworker. D.M. had agreed to keep N.S. for Respondent until she
could "get [her]self together and get . . . a place to stay."
Respondent told the trial court that she obtained employment
cleaning houses for three people. She began cleaning two of the
houses the week prior to the hearing and had not yet been paid.
She was supposed to clean the third house the day after the
hearing. She last had full-time employment in September 2004. She
had not used drugs for "two or three months" and had passed two
drug tests.
The trial court adjudicated N.S. a dependent juvenile as
alleged in the petition filed 23 August 2005. In its dispositional
order, the trial court found that DSS had made reasonable efforts
toward reunification and that further time or efforts toward
reunification would be "futile given [Respondent's] past history
and failure to progress in this case." The trial court ceased
reunification efforts and granted guardianship of N.S. to D.M.
On appeal, Respondent mistakenly asserts that the trial court
failed to appoint a guardian ad litem to represent her in the
dependency proceedings. The record and transcript plainly reflectthat the trial court appointed Respondent's guardian ad litem on 30
August 2005, and that the guardian ad litem appeared at the
dependency hearing. This assignment of error is frivolous.
Respondent next challenges the trial court's conclusions that
DSS made reasonable efforts toward reunification and that
Respondent failed to make progress toward reunification. She
argues that DSS knew of her drug addiction but "did not assist
[her] in any aspect of her case plan" or "follow through" with her
when she missed appointments and otherwise failed to take
independent action. Respondent further faults the trial court for
merely parroting "the words and reasoning of the DSS attorney" in
its dispositional order, rather than undertaking an independent
evaluation of the evidence.
The determination that grounds exist to cease reunification
efforts is a legal conclusion subject to de novo review. See In re
Weiler, 158 N.C. App. 473, 477-79, 581 S.E.2d 134, 137-38 (2003).
However, because Respondent does not challenge the evidence
supporting the trial court's individual findings of fact, its
findings are deemed to be supported by competent evidence and are
binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991). Appellate review is limited to a determination of
whether the underlying findings of fact support the trial court's
conclusions of law. In re M.J.G., 168 N.C. App. 638, 643, 608
S.E.2d 813, 816 (2005).
N.C. Gen. Stat. § 7B-507(a)(2) (2005) requires any order that
establishes or continues a juvenile's placement in DSS custody toinclude "findings as to whether a county department of social
services has made reasonable efforts to prevent or eliminate the
need for placement of the juvenile[.]" The Juvenile Code defines
"reasonable efforts" as "[t]he diligent use of . . . reunification
services by a department of social services" when reunification "is
consistent with achieving a safe, permanent home for the juvenile
within a reasonable period of time." N.C. Gen. Stat. § 7B-101(18)
(2005). Under N.C. Gen. Stat. § 7B-507(b)(1) (2005), a trial court
may cease DSS's efforts to reunify the juvenile with a respondent
parent "if the [trial] court makes written findings of fact that .
. . [s]uch efforts clearly would be futile or would be inconsistent
with the juvenile's health, safety, and need for a safe, permanent
home within a reasonable period of time[.]" The statute also
provides that, "[i]n determining reasonable efforts to be made with
respect to a juvenile . . ., the juvenile's health and safety shall
be the paramount concern." N.C. Gen. Stat. § 7B-507(d) (2005).
In its dispositional order, the trial court entered the
following findings and conclusions in support of its decision to
relieve DSS of further reunification efforts and to award
guardianship of [N.S.] with D.M.:
1. . . . [N.S.] . . . has been found to be
dependent.
2. [DSS] filed a juvenile petition of
dependency on August 23, 2005 when . . . [DSS]
received information that [N.S.] had been
living with the maternal grandmother and had
been removed from the maternal grandmother's
care by [Respondent] on August 8, 2005.
[Respondent] walked across town in the rain
with [N.S.] and left [N.S.] with a cousin.
The cousin returned [N.S.] to the maternalgrandmother. [Respondent] has a drug abuse
problem and failed to enter into drug
treatment and failed to attend appointments at
DSS regarding drug assessments and screens.
3. [Respondent] would leave [N.S.] with her
mother and then go and get [N.S.] when she
knew the social worker was making a visit. She
refused to participate in the development of a
case plan when asked to do so.
4. [DSS] has been involved with [Respondent]
previously. [Respondent] has seven children,
including [N.S.], and none of those children
reside with her.
5. [N.S.] tested positive for cocaine at
birth. She had six digits on each hand. The
extra digits were removed before she left the
hospital.
6. [Respondent] has refused to submit to drug
tests. She gave excuses such as oversleeping
for why she missed appointments. She blames
DSS [for] not finding her a place to live or
helping her to get a job.
7. [Respondent] states that she is seeking
employment but is hampered because she doesn't
have a car. She stated first that she had a
job cleaning houses for three people then when
questioned further admitted that she has not
started one of the houses yet and just started
the job last week. Her testimony about
employment is not credible.
8. [Respondent] has not provided for [N.S.]
since [N.S.] was born.
9. . . . [R]espondent . . . is unable or
unwilling to care for [N.S.]. She has no job,
no child care and nowhere to live. She has
only had [N.S.] for two full days since [N.S.]
was born. She has six other children, none of
which live with her.
. . .
11. The [Trial] Court determines by the
greater weight of the evidence that it is in
[N.S.'s] best interest to have the maternal
grandmother . . . be granted guardianship. This will allow for permanency in [N.S.'s]
life.
In making its findings, the trial court expressly considered the
"facts and recommendations set forth in [DSS's] disposition report"
in addition to the testimony at the hearing. See N.C. Gen. Stat.
§ 7B-901 (2005). The trial court made the following conclusions of
law:
2. [DSS] has exercised reasonable efforts
since the filing of the Petition to reunify
the family. [Respondent] has failed to
progress and still has no job, no child care
and nowhere to live. To allow additional time
for the mother to obtain a residence is futile
based upon her past history.
3. It is contrary to [N.S.'s] best interest
that [N.S.] be returned to the legal custody
and care of . . . [R]espondent . . . .
We believe the trial court's uncontested findings support a
determination that DSS made reasonable efforts toward
reunification, and that any additional efforts toward reunification
would be futile. The findings reflect Respondent's complete
refusal to work with DSS to remedy her substance abuse and lack of
employment or housing. She declined to participate in the
development of a case plan. She concealed N.S.'s whereabouts from
the DSS case worker, failed to attend substance abuse assessments
arranged by DSS, and failed to obtain housing or employment.
Moreover, the findings reflect DSS's prior involvement with
Respondent and her failure to satisfy her support obligation toward
her six other children, none of whom live with her. Because
Respondent showed no willingness to work with DSS and made no
independent progress toward correcting the issues surroundingN.S.'s dependency, the trial court did not err in ceasing
reunification efforts under N.C.G.S. § 7B-507(b). See In re
M.J.G., 168 N.C. App. at 649-50, 608 S.E.2d at 820 (upholding a
finding that reunification efforts were futile based on the
respondent's refusal of services); see also In re D.J.D., 171 N.C.
App. 230, 237-38, 615 S.E.2d 26, 31-32 (2005) (upholding a finding
that reunification efforts were futile based on the respondent's
non-cooperation with DSS).
To the extent Respondent challenges the trial court's findings
and conclusions as "an echo of the words and reasoning of the DSS
attorney[,]" we find no merit to her claim. A trial court is free
to adopt terminology used by counsel, provided that it fulfills its
duty to affirmatively find the facts and reach the conclusions of
law that support its order. See In re J.B., 172 N.C. App. 1, 25-
26, 616 S.E.2d 264, 279 (2005) (holding that a trial court may
direct a petitioner's counsel to draft an order containing the
trial court's findings of fact and conclusions of law); cf. also In
re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)
(noting that a "trial court may not simply 'recite allegations,'
but must . . . find the ultimate facts essential to support the
conclusions of law."). In this case, the trial court did not
merely report the arguments of DSS's counsel. Rather, it made the
determination urged by counsel that further efforts toward
reunification would be futile in light of Respondent's lack of
progress. Although Respondent correctly notes that counsel's
arguments are not evidence, see In re D.L., A.L., 166 N.C. App.574, 582, 603 S.E.2d 376, 382 (2004), the trial court's findings
were supported by the hearing testimony and the report submitted by
DSS at disposition.
The record on appeal includes additional assignments of error
not addressed by Respondent in her brief to this Court. We deem
them abandoned. N.C.R. App. P. 28(b)(6).
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***