IN THE MATTER OF:
S.M.M., Hertford County
a minor child. No. 05 J 14
Mitchell S. McLean for Hertford County Department of Social
Services, petitioner-appellee.
Duncan B. McCormick for respondent-appellant.
McCULLOUGH, Judge.
Respondent-mother appeals a juvenile order entered by the
trial court vesting legal and physical custody of S.M.M. with the
maternal grandmother, appointing the maternal grandmother as
guardian of S.M.M. and ceasing reunification efforts.
Respondent is the mother of S.M.M., who came under the care of
the Hertford County Department of Social Services (hereinafter
“DSS”) on 10 June 2005. Respondent told DSS that she did not want
S.M.M. and that she wanted to put the minor child up for adoption.
DSS filed a juvenile petition alleging that S.M.M. is a dependent
juvenile. A non-secure custody order was entered by the court on
13 June 2005 placing custody of S.M.M. with DSS. Subsequently, on
21 December 2005, the court filed an adjudication order and adisposition order adjudicating S.M.M. dependent and continuing
custody with DSS and continuing placement of S.M.M. with the
maternal grandmother. The court established the permanent plan as
reunification.
The court conducted a permanency planning hearing on 16 March
2006. Respondent did not attend the hearing but was represented by
counsel. On 6 June 2006, the court filed an order awarding legal
and physical custody of S.M.M. to the maternal grandmother,
appointing the grandmother as the minor child's guardian, and
ceasing reunification efforts. Respondent, through counsel, filed
notice of appeal on 6 June 2006. Respondent filed a second notice
of appeal, this time signed by respondent as required by N.C. R.
App. P. 3A, on 30 June 2006.
The findings of fact made by the court in its permanency
planning order filed 6 June 2006 tend to show the following: S.M.M.
has adjusted well to placement with the maternal grandmother, who
has been his caretaker since 10 June 2005. S.M.M.'s physical and
emotional needs are being adequately met by the maternal
grandmother. Respondent has failed to cooperate with the efforts
of DSS to reunify respondent and S.M.M. Respondent has not taken
steps to improve her situation. Respondent has not obtained
employment or suitable housing for herself and S.M.M. Instead of
attending the permanency planning hearing, respondent elected to
travel to Chicago with the father of the minor child. Instead of
finding a safe home for herself and S.M.M., respondent resides in
an apartment with the minor child's father, who has regularlyabused respondent and has beaten respondent to the point she had to
be hospitalized. Respondent continues to reside with S.M.M.'s
father despite the physical abuse. She has been evasive in
informing DSS of the father's whereabouts. Respondent falsely
stated to DSS that her mother is dying of cancer. On occasions
when respondent has had overnight visitations with S.M.M.,
respondent has left S.M.M. with others so she could pursue her own
endeavors rather than tend to S.M.M.'s needs. The maternal
grandmother has to prompt respondent to visit S.M.M., and when
respondent does have visitations, respondent does not properly care
for the minor child. Respondent is a compulsive gambler and
spends an inordinate amount of time and money playing bingo.
Respondent has made no effort to provide any form of child support
for S.M.M.
The court found that due to the failure of respondent to
cooperate with DSS, her negative behavior, and her failure to
remove herself from the abusive relationship with S.M.M.'s father,
it is unlikely that reunification efforts would be successful. The
court further found and concluded that it would be in the best
interests of the child for S.M.M. to be placed in the legal custody
of the maternal grandmother and for reunification efforts to cease.
The court appointed the maternal grandmother as legal guardian of
S.M.M.
The purpose of permanency planning is “to develop a plan to
achieve a safe, permanent home for the juvenile within a reasonable
period of time.” N.C. Gen. Stat. § 7B-907(a) (2005). A trialcourt may order cessation of reunification efforts when the court
finds as 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[.]” N.C.
Gen. Stat. § 7B-507(b)(1) (2005). “In a permanency planning
hearing held pursuant to Chapter 7B, the trial court can only order
the cessation of reunification efforts when it finds facts based
upon credible evidence presented at the hearing that support its
conclusion of law to cease reunification efforts.” In re Weiler,
158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). The findings
of fact are binding on appeal if supported by competent evidence.
In re H.W., 163 N.C. App. 438, 443, 594 S.E.2d 211, 213, disc.
review denied, 358 N.C. 543, 599 S.E.2d 46, disc. review denied,
358 N.C. 543, 603 S.E.2d 877 (2004). “[T]he trial court's
conclusions of law are reviewable de novo.” In re Pope, 144 N.C.
App. 32, 40, 547 S.E.2d 153, 158, aff'd, 354 N.C. 359, 554 S.E.2d
644 (2001).
Respondent first contends the court erred by finding that
S.M.M.'s father regularly beat respondent, that respondent exposed
S.M.M. to domestic violence, and that respondent remains in a
violent and physically abusive relationship with the father where
the finding is not supported by competent evidence. We disagree.
The social worker in charge of the case testified that
respondent and S.M.M.'s father are involved in domestic violence in
the home, that the minor child's father has “put [respondent] out”
of their home, that respondent had to call the maternal grandmotherin the middle of the night to come and get respondent and her
children, and that court charges have been brought arising out of
the domestic violence. The maternal grandmother testified that
S.M.M.'s father beat the then-pregnant respondent to the point
respondent was “unrecognizable in the hospital.” She further
testified that respondent has “been to the hospital so many times
that the people know me and know who my daughter is. They fight.
He beats. [Respondent is] in the hospital. They fight with the
kids there.” The maternal grandmother stated that when respondent
and S.M.M.'s father fight, she is called to come and get
respondent's three children. The maternal grandmother also
testified that respondent is afraid of the father, who has tried to
drown respondent. The foregoing testimony provides ample
evidentiary support for the findings.
Respondent next contends the court erred by concluding as a
matter of law and finding as fact that respondent did not cooperate
with DSS and make reasonable efforts to improve her situation. We
disagree. The social worker testified that respondent has one
weekend visitation per month with S.M.M. but that the maternal
grandmother has to call respondent to tell her to visit. The
social worker also testified that respondent has not attempted to
obtain employment, that respondent has avoided appointments
arranged by DSS to help her seek employment and housing, and that
respondent has continued to reside with her abusive boyfriend. The
maternal grandmother testified that she has to take S.M.M. to
respondent for visitations and then pick him up afterward; thatwhile having visitations, respondent has left S.M.M. in a house
where people consume illegal drugs and alcohol; and that she has
tried unsuccessfully to encourage respondent to visit S.M.M. more
often. We hold this evidence supports the finding of fact and
conclusion of law.
Respondent next contends the court erred by concluding that
returning S.M.M. to the home would be contrary to the welfare of
S.M.M., that further reunification efforts would be futile, and
that the permanent plan should be changed. She argues these
conclusions are not supported by adequate findings or credible
evidence. We disagree.
In determining the best plan for S.M.M. at a permanency
planning hearing, the court may consider the progress the parent
has made in eliminating the conditions that led to the removal of
S.M.M. from the home and any other changes that may have occurred
since the removal of S.M.M.. In re T.K., 171 N.C. App. 35, 39, 613
S.E.2d 739, 741 (2005), aff'd per curiam, 360 N.C. 163, 622 S.E.2d
494 (2005). Here, the findings show that S.M.M. came into the
custody of DSS when respondent abandoned the minor child and asked
that he be placed for adoption. Less than one year later,
respondent chose not to appear at a permanency planning hearing to
determine the permanent plan for S.M.M. The findings further
reflect that during visitations, respondent continues to abandon
S.M.M. by leaving him with others. Respondent continues to reside
in a residence and maintain a relationship where she is subjected
to domestic violence. A residence where domestic violence isperpetrated is certainly not a safe place for a child. We hold
these findings support the conclusion that reunification would be
contrary to the best interests and welfare of S.M.M.
Respondent lastly contends the court erred by ceasing
reunification efforts, awarding legal and physical custody to the
grandmother, and appointing the grandmother as guardian. She
argues these rulings are not supported by adequate conclusions of
law, adequate findings of fact, or credible evidence.
The General Assembly has decreed that the Juvenile Code is to
be “interpreted and construed” to ensure “that the best interests
of the juvenile are of paramount consideration by the court and
that when it is not in the juvenile's best interest to be returned
home, the juvenile will be placed in a safe, permanent home within
a reasonable amount of time.” N.C. Gen. Stat. § 7B-100(5) (2005).
The courts are directed to take action “which is in the best
interests of the juvenile” when “the interests of the juvenile and
those of the juvenile's parents or other persons are in conflict.”
N.C. Gen. Stat. § 7B-1100(3) (2005). On appeal we review a trial
court's decision of what is in the “best interests” of a juvenile
for an abuse of discretion. In re Nesbitt, 147 N.C. App. 349, 352,
555 S.E.2d 659, 662 (2001). “A judge is subject to reversal for
abuse of discretion only upon a showing by a litigant that the
challenged actions are manifestly unsupported by reason.” Clark v.
Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
We find no abuse of discretion. The court's order demonstrates
that it made a reasoned decision based upon competent evidence. The order reflects that the maternal grandmother is providing
S.M.M. with a safe home in which he is flourishing. The maternal
grandmother is willing to assume custody of S.M.M. and to provide
him with a permanent home.
The court's order is
Affirmed.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
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