IN THE MATTER OF:
R.B. & A.M.
Wayne County
Nos. 04 JA 244
04 JA 245
E.B. Borden Parker, for Wayne County Department of Social
Services, petitioner-appellee.
Jeremy B. Smith, for Guardian ad Litem.
Jeffrey L. Miller, for respondent-mother-appellant.
JACKSON, Judge.
Tracie B. (“respondent”) is the mother of R.B. and A.M., the
juveniles who are the subject of this appeal.
(See footnote 1)
For the following
reasons, we affirm in part and reverse in part the trial court's
orders.
By separate juvenile petitions, filed 10 November 2004, the
Wayne County Department of Social Services (“DSS”) alleged that
R.B. and A.M. (collectively, “the juveniles”) were neglected. Byorders filed 7 January 2005, the trial court adjudicated both
juveniles neglected , and on 20 January 2005, the trial court
ordered that the juveniles be placed in the nonsecure custody of
DSS. On 23 November 2005, the trial court filed separate
permanency planning orders, and respondent appealed to this Court.
See In re R.B., No. COA06-484, 2007 N.C. App. LEXIS 59 (N.C. Ct.
App. Jan. 2, 2007). As such, the facts of this case are stated in
greater detail in the earlier opinion.
Subsequent to the trial court's 23 November 2005 orders but
before the 2 January 2007 filing of this Court's opinion in
respondent's prior appeal, the trial court entered orders on 28
February 2006 following a review hearing on 26 January 2006. In
these orders, the trial court changed the permanent plan from
reunification with respondent to guardianship with the juveniles'
custodians, Steven and Doris Johnson (“the Johnsons”) . The trial
court left respondent's visitation to the Johnsons' discretion and
determined that there was no need for further review hearings.
Thereafter, respondent filed notice of appeal.
On appeal, respondent contends that: (1) the trial court
failed to comply with the mandates of North Carolina General
Statutes, section 7B-906 before waiving further review hearings;
(2) the trial court erred in delegating judicial responsibility for
visitation to the Johnsons; (3) the trial court erred in
considering and incorporating DSS and guardian ad litem reports;
(4) the trial court erred in making findings which recited
testimony or statements of the court; (5) the trial court erred incalling respondent as a witness at the review hearing; (6) findings
of fact numbers 13 and 17 through 24 are not supported by
sufficient competent evidence and, in turn, do not support the
court's conclusions and orders; and (7) respondent has been denied
due process because the tape recordings of the 26 January 2006
hearing were destroyed.
Preliminarily, we note that respondent's second, third, fifth,
and seventh arguments are identical to the arguments she raises in
the companion case concerning her other child, L.B. In the
interest of judicial economy, those arguments will not be discussed
in detail herein, and this Court's disposition of the identical
assignments of error in In re L.B., __ N.C. App. __, __ S.E.2d __
(July, 3 2007) (No. COA06-1295), will be considered the law of the
case in both cases. Accordingly, consistent with this Court's
opinion in L.B., we (1) reverse the trial court's order with
respect to respondent's argument that the court improperly
delegated respondent's visitation rights to the discretion of the
Johnsons; (2) overrule respondent's argument that the court erred
in considering and incorporating reports and summaries submitted by
DSS and the guardian ad litem; (3) overrule respondent's argument
that the court erred in calling respondent as a witness at the
review hearing; and (4) overrule respondent's argument that she has
been denied due process because the tape recordings of the 26
January 2006 hearing were destroyed. We will address respondent's
remaining arguments in the order presented. First, respondent contends that the trial court failed to
comply with North Carolina General Statutes, section 7B-906(b). We
agree.
Pursuant to North Carolina General Statutes, section 7B-
906(a), “[i]n any case where custody is removed from a parent,
guardian, custodian, or caretaker the court shall conduct a review
hearing within 90 days from the date of the dispositional hearing
and shall conduct a review hearing within six months thereafter.”
N.C. Gen. Stat. . 7B-906(a) (2005). The trial court, however, may
dispense with review hearings if the court finds the following by
clear, cogent, and convincing evidence:
(1) The juvenile has resided with a relative
or has been in the custody of another suitable
person for a period of at least one year;
(2) The placement is stable and continuation
of the placement is in the juvenile's best
interests;
(3) Neither the juvenile's best interests nor
the rights of any party require that review
hearings be held every six months;
(4) All parties are aware that the matter may
be brought before the court for review at any
time by the filing of a motion for review or
on the court's own motion; and
(5) The court order has designated the
relative or other suitable person as the
juvenile's permanent caretaker or guardian of
the person.
N.C. Gen. Stat. . 7B-906(b) (2005). Failure to find all of these
criteria constitutes reversible error. See In re R.A.H., __ N.C.
App. __, __, 641 S.E.2d 404, 410 (2007). Additionally, findingspursuant to section 7B-906 must be made in writing. See L.B., __
N.C. App. at __, __ S.E.2d at __.
In the instant case, the trial court complied with portions of
section 7B-906(b). First, section 7B-906(b)(2) required the trial
court to find that “[t]he placement is stable and continuation of
the placement is in the juvenile[s'] best interests.” N.C. Gen.
Stat. . 7B-906(b)(2) (2005). The trial court satisfied this
requirement with the following findings, which were supported by
competent evidence detailed in the DSS and guardian ad litem
reports:
24. That the best interest of permanence for
the children, even though this is not a
permanency planning hearing, is to leave the
children where they are safe.
25. That Steven and Doris Johnson continue to
be fit and proper persons to have custody of
the juvenile[s].
The trial court also complied with section 7B-906(b)(5), which
required the trial court to find that the custody order designated
the juveniles' “permanent caretaker or guardian of the person.”
N.C. Gen. Stat. . 7B-906(b)(5) (2005). The trial court fully
satisfied this requirement with findings of fact numbers 2 and 3,
in which the court found that the Johnsons were the juveniles'
custodians and the Johnsons were designated as guardians of the
juveniles on October 27, 2005. Respondent did not assign error to
these findings, and thus, they are deemed binding on appeal. See In
re W.L.M., __ N.C. App. __, __, 640 S.E.2d 439, 441 (2007).
The trial court, however, failed to make findings with respect
to sections 7B-906(b)(1), (3), and (4). First, pursuant to section7B-906(b)(1), the trial court was required to find that the
juveniles had resided with a relative or been in the custody of
another suitable person for at least one year. See N.C. Gen. Stat.
. 7B-906(b)(1) (2005). The trial court found that the juveniles
continue to reside with the Johnsons, who were designated as their
guardians. However, the statute requires a finding that R.B. and
A.M. were in the custody of a relative or suitable person for at
least one year, and the trial court failed to make findings to this
effect.
Next, section 7B-906(b)(3) required the trial court to find
that neither the juveniles' best interests nor the rights of any
other party, including respondent, required the continued holding
of review hearings every six months. See N.C. Gen. Stat. . 7B-
906(b)(3) (2005). The trial court made the following findings of
fact:
7. That [respondent] had an opportunity to
call witnesses and did not do so.
. . . .
10. That [respondent] was previously ordered
to bring all the belongings of the . . .
juveniles to the children but has not done so.
11. That [respondent] informed the Court that
she does not have any of the possessions of
the juveniles.
. . . .
16. That at the Christmas visit between
[respondent] and the juvenile[s], [respondent]
had presents for [these] juvenile[s] . . . ,
but no present for the half-sibling, [L.B.].
17. That after [respondent] gave her Christmas
present to [R.B.], she pushed the Christmaspresent for [A.M.], a baby doll, back into the
car and stated that [A.M.] could not have the
present. This action on the part of
[respondent], hurt the feelings of [A.M.].
. . . .
20. That [respondent] calls on Tuesdays, but
the juvenile[s] do not want to talk to
[respondent].
21. That [respondent] refuses to go to the
home of the custodians.
22. That . . . [respondent] refuses to go to
Johnston County.
23. That the Court informed [respondent] that
it was her responsibility to see her children
and not the responsibility of the Johnsons to
transport the children.
These findings were supported by competent evidence as presented in
the DSS summary, with the exception of finding of fact number 20
in the order concerning R.B. That finding provides that “the
juvenile [i.e., R.B.] and the half siblings of the juvenile [i.e.,
A.M. and L.B.] do not want to talk to [respondent].” As the DSS
summary notes, “R[.B.] was the only child that would talk with
[respondent] when she did call.” The order concerning A.M., on the
other hand, correctly reflects the evidence presented in the DSS
summary, noting that “the juvenile [i.e., A.M.] and the half sister
of the juvenile [i.e., L.B.] do not want to talk to [respondent].”
Thus, the trial court's findings, with the exception of a portion
of finding of fact number 20 in the order concerning R.B., reflect
the evidence presented in the DSS summary. The trial court,
nevertheless, must make a written finding that neither the
juveniles' best interests nor the rights of any other party,including respondent, require the continued holding of review
hearings every six months. In the instant case, the trial court
failed to do so as required by section 7B-906(b)(3).
Finally, section 7B-906(b)(4) requires the trial court to find
that all parties are aware that a review may be held at any time by
the filing of a motion for review or on the court's own motion. See
N.C. Gen. Stat. . 7B-906(b)(4) (2005). The trial court's orders,
however, are devoid of any finding that respondent was aware that
she was entitled to another review hearing by filing a motion for
review.
As the trial court's order fails to satisfy the requirements
of sections 7B-906(b)(1), (3), and (4), we reverse on this issue
and remand the case to the trial court to issue a new order with
written findings of fact consistent with this opinion and the
requirements of section 7B-906(b).
In her next argument, respondent challenges findings of fact
numbers 11, 13 through 15, and 23 on the grounds that the trial
court simply recited respondent's statements and the court's
statements at the hearing.
As this Court has noted, “verbatim recitations of the
testimony of each witness do not constitute findings of fact by the
trial judge, because they do not reflect a conscious choice between
the conflicting versions of the incident in question which emerged
from all the evidence presented.” In re Green, 67 N.C. App. 501,
505, n.1, 313 S.E.2d 193, 195 (1984) (emphasis in original).
Respondent is correct that findings of fact numbers 11, 13 through15, and 23 are recitations of statements made during the review
hearing.
(See footnote 2)
However, notwithstanding the five findings of fact that
constitute recitation of testimony and statements by the trial
court, the remaining findings of fact adequately support the trial
court's conclusions. See In re S.W., 175 N.C. App. 719, 724, 625
S.E.2d 594, 597 (“[W]e hold that the remaining findings of fact are
more than sufficient to support the trial court's conclusions of
law complained of by respondent.”), disc. rev. denied, 360 N.C.
534, 635 S.E.2d 59 (2006). Accordingly, respondent's assignment of
error is overruled.
Respondent next contends that the trial court erred in making
findings of fact numbers 13 and 17 through 24, on the grounds that
they are not supported by sufficient competent evidence and, in
turn, do not support the court's conclusions of law. We disagree.
Respondent is correct that the evidence in the record on
appeal fails to support findings of fact numbers 13, 18, and 19.
Findings of fact numbers 18 and 19, however, simply state that the
trial court called respondent and one of the juveniles' custodians
as witnesses. Furthermore, as discussed supra with respect to
respondent's argument concerning North Carolina General Statutes,
section 7B-906(b), findings of fact numbers 17 and 20
(See footnote 3)
through 24
are supported by competent evidence _ i.e., the reports from DSS
and the guardian ad litem. Further, these findings of factdemonstrate: (1) the lack of concern and love respondent has shown
for R.B. and A.M.; (2) the lack of interest A.M. has in maintaining
a relationship with respondent; and (3) the stable, safe, and
nurturing home that the Johnsons continue to provide for R.B. and
A.M. As such, these findings fully support the trial court's
conclusion “[t]hat the best interest of the juvenile[s] will be
promoted and served by continuing custody with Steven and Doris
Johnson, who have been designated as guardians of the juvenile[s].”
Respondent's assignment of error, therefore, is overruled.
Affirmed in part; Reversed and Remanded in part.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***