Appeal by respondents from orders entered 3 April and 13 April
2006 by Judge Albert A. Corbett, Jr. in Johnston County District
Court. Heard in the Court of Appeals 29 March 2007.
Holland & O'Connor, by Jennifer S. O'Connor, for petitioner
Johnston County Department of Social Services.
Peter Wood for respondent father.
Richard Croutharmel for respondent mother.
Elizabeth Myrick Boone for guardian ad litem.
BRYANT, Judge.
R.L.
(See footnote 1)
(respondent-father) and S.L. (respondent-mother) appeal
from orders entered 3 April and 13 April 2006, ordering the
cessation of reunification efforts with their minor children L.L.
and N.L. and changing the permanent plan for the children to
adoption. After careful review, we affirm the orders of the trial
court.
Facts and Procedural History
Respondents were married on 16 April 2001, and have had three
children together: M.L. (not a party to this case), born in 2001;
L.L., born in October 2002; and N.L., born in May 2004. On 17
October 2002, Johnston County Department of Social Services (JCDSS)
filed a juvenile petition containing allegations of neglect and
dependency of the juvenile L.L. L.L. was adjudicated as neglected
and dependent on 20 November 2003. L.L. remained in the custody of
JCDSS in foster care and the agency worked towards reunification
with the parents. Respondents appealed the adjudication and, on 21
July 2004, L.L. was placed in the home of the respondents, with
joint custody remaining with the former foster parents, pending the
outcome of the appeal.
On 12 November 2004, JCDSS filed a juvenile petition alleging
that N.L. was abused, neglected and dependent as the juvenile had
suffered broken bones while in the care of respondents. JCDSS also
filed a new petition with allegations of neglect concerning L.L. at
the same time. JCDSS resumed custody of L.L. and N.L. and they
were again placed with foster parents. These petitions were heard
from 28 February 2005 through 10 May 2005, and the trial court
found N.L. to be an abused and neglected child and L.L. was found
to be a neglected child. At the disposition hearing held on 10 May
2005, L.L. and N.L. remained in the custody of JCDSS, with
placement in foster care and the court ordered continued efforts
towards reunification with respondents.
After several continuances, a combined permanency planning and
ninety-day review hearing in this matter concluded on 14 March2006. The trial court subsequently entered orders for L.L. and
N.L. which continued custody of L.L. and N.L. with JCDSS with
placement in foster care, relieved JCDSS of further efforts towards
reunification, and terminated visitation between respondents and
their minor children. On 3 April 2006, the trial court held
another permanency planning hearing on this matter and thereafter
entered an order changing the permanent plan for L.L. and N.L. to
adoption. Respondents appeal.
_________________________
Respondents individually present two similar issues as to
whether the trial court erred in: (I) ceasing reunification
efforts between respondents and their minor children and changing
the permanent plan for the minor children to adoption; and (II)
terminating visitation between respondents and their minor
children.
Standard of Review
“Appellate review of a permanency planning order is limited to
whether there is competent evidence in the record to support the
findings and the findings support the conclusions of law.”
In re
J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). “If the
trial court's findings of fact are supported by competent evidence,
they are conclusive on appeal.”
In re Weiler, 158 N.C. App. 473,
477, 581 S.E.2d 134, 137 (2003). However, the “trial court's
conclusions of law are reviewable
de novo.”
In re J.J., J.J.,
J.J., __ N.C. App. __, __, 637 S.E.2d 258, 260 (2006). A trial court's dispositional order must be based on the best
interests of the child and the dispositional alternatives are left
within the discretion of the trial court, which are not reversible
absent an abuse of discretion.
See N.C. Gen. Stat. § 7B-903
(2005);
In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567,
disc. review denied, 356 N.C. 163, 568 S.E.2d 608-09 (2002),
cert.
denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). “An abuse of
discretion occurs when the trial court's ruling is so arbitrary
that it could not have been the result of a reasoned decision.”
In
re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)
(citations and quotations omitted).
I
Respondents argue the trial court erred in ceasing
reunification efforts between respondents and L.L. and N.L. and
changing the permanent plan for the minor children to adoption.
Respondents contend the trial court's findings of fact are not
supported by competent evidence and do not in turn support the
trial court's conclusions of law. We disagree.
It is well established that the purpose of a permanency
planning hearing 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);
In re Eckard, 148 N.C. App. 541,
543, 559 S.E.2d 233, 234 (citation and quotations omitted),
disc.
review denied, 356 N.C. 163, 568 S.E.2d 192-93 (2002). At the
conclusion of a permanency planning hearing, if the trial court
determines the children are not to return home, the trial court isrequired to consider the following criteria and make written
findings of fact on any criteria relevant to the case:
(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 return home;
(2) Where the juvenile's return home is
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 juvenile's adoption;
(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 deems
necessary.
N.C. Gen. Stat. § 7B-907(b) (2005);
In re Harton, 156 N.C. App.
655, 659, 577 S.E.2d 334, 336-37 (2003). A trial court may order
the cessation of reunification efforts if it finds as fact that
reunification 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;” or “[a]
court of competent jurisdiction has terminated involuntarily the
parental rights of the parent[s] to another child of theparent[s.]” N.C. Gen. Stat. § 7B-507(b)(1),(3) (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.”
Weiler, 158 N.C. App. at 477, 581 S.E.2d at 137.
In its final dispositional order, entered 13 April 2006,
changing the permanent plan for L.L. and N.L. from reunification to
adoption, the trial court made twenty-seven separate findings of
fact. Specifically, pursuant to the statutory mandate set forth in
N.C. Gen. Stat § 7B-507(b), the trial court found as fact that:
25. ... Reasonable efforts to reunify should
be ceased in that such efforts clearly would
be futile or inconsistent with the juvenile's
health, safety and need for a safe, permanent
home within a reasonable period of time. From
the testimony of the foster care mother, the
Court finds that [respondent-mother] continues
to exhibit lack of control and anger
management and lack of parenting skills
considered by the foster care mother to be
essential to provide a safe home for these
children. Further, that less than three weeks
after achieving full reunification with
[L.L.], both [L.L.] and [N.L.] were removed
from their parents care after [N.L.] sustained
a spiral fracture of the right leg and
possible “buckle handle” fracture of the left
knee on October 22, 2004 which medical
professionals determined to have occurred by
other than accidental means. Neither parent
has accepted responsibility for this abuse and
each continues to deny their involvement with
it. A court of competent jurisdiction has
terminated involuntarily the parental rights
of another child to [respondents] in that the
parental rights of [respondents] with respect
to their daughter [M.L.] were terminated on
November 15, 2003 by order entered in Johnston
County District Court.
The trial court subsequently concluded:
1. That it is clearly futile and inconsistent
with the juveniles' safety and need for a
safe, permanent home within a reasonable
period of time to continue reunification
efforts with either parent and further
reasonable efforts with either parent are
hereby terminated.
2. The JCDSS exercised reasonable efforts at
reunification.
3. The JCDSS exercised reasonable efforts to
prevent the removal of the juveniles from the
home.
4. The JCDSS has exercised reasonable efforts
in maintaining concurrent plans and attempting
to achieve permanence for these children at
the earliest possible time.
5. The Court, after reviewing all facts
concerning relative placements, determines
that all relative placements have been
carefully considered and rules out all
relatives who have been identified at this
time as possible placement options.
The trial court then ordered:
1. That [L.L.] and [N.L.], be and hereby shall
remain in the custody of the JCDSS.
2. That reasonable efforts toward
reunification with either parent are futile
and inconsistent with achieving a safe
permanent home within a reasonable period of
time and therefore, JCDSS is ordered to
continue to be relieved of reunification
efforts.
3. That the Court hereby changes the permanent
plan for [L.L] and [N.L.] to adoption.
Respondents do not contest the trial court's finding that less
than three weeks after L.L. was returned to respondent's care, both
L.L. and N.L. were removed from respondent's care after N.L.
sustained “a spiral fracture of the right leg and possible 'bucklehandle' fracture of the left knee . . . which medical professionals
determined to have occurred by other than accidental means.” Nor
do respondents contest that their parental rights to M.L. were
terminated by a court of competent jurisdiction. These findings
alone support the trial court's conclusion to cease efforts towards
reunification with respondents under N.C. Gen. Stat. § 7B-507(b).
Further, it is clear from the record before this Court that, in its
orders entered 3 April and 13 April 2006, the trial court has made
sufficient findings of fact supported by competent evidence
concerning each of the criteria in N.C. Gen. Stat. § 7B-907(b).
Thus, we hold that the trial court did not err nor abuse its
discretion in ordering the cessation of reunification efforts
between respondents and L.L. and N.L. and changing the permanent
plan for the minor children to adoption. These assignments of
error are overruled.
II
Respondents also individually argue the trial court erred in
terminating visitation between respondents and their minor
children. We disagree.
A trial court has the authority to modify any aspect of a
permanency plan for the minor children, including efforts toward
reunification and visitation.
In re J.S., 165 N.C. App. 509, 513,
598 S.E.2d 658, 661 (2004). Here, the trial court properly ordered
the cessation of reunification efforts between respondents and L.L.
and N.L. and changed the permanent plan for the minor children to
adoption. Further, the trial court found as fact that respondents“have demonstrated a lack of supervision and ability on at least
two occasions at recent supervised weekend visitations by failing
to provide the constant [] supervision necessary for children of
these ages.” This finding of fact is supported by competent
evidence in the record before this Court. Given the facts and
circumstances of the instant case, we hold the trial court did not
abuse its discretion in ordering the termination of visitation
between respondents and L.L. and N.L. These assignments of error
are overruled.
Affirmed.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1