IN THE MATTER OF Y.G.
Mecklenburg County
No. 05 JA 379
No brief filed for Petitioner-Appellee Mecklenburg County
Department of Social Services.
Richard Croutharmel for Respondent-Appellant.
McGEE, Judge.
Y.G., a minor child, is the biological daughter of D.G.
(Respondent-Father), and T.C., who is not a party to this appeal.
The Mecklenburg County Department of Social Services (DSS) filed a
juvenile petition on 15 April 2005 alleging that Y.G. was a
neglected and dependent juvenile due to lack of proper supervision
and care, substance abuse by the parents, and domestic violence
between the parents.
(See footnote 1)
The trial court ordered Y.G. to be placed in
the non-secure custody of DSS that same day. In two successive
orders, the trial court continued Y.G. in the non-secure custody ofDSS, pending adjudication.
The trial court adjudicated Y.G. neglected and dependent on 23
August 2005 and ordered Y.G. to remain in DSS custody with a plan
of reunification. The trial court entered a permanency planning
hearing order on 12 January 2006 that ceased reunification efforts
between Y.G. and both parents. The trial court ordered that the
permanent plan for Y.G. be guardianship or custody with a court-
approved caretaker. DSS filed a memorandum on 31 March 2006
regarding a change in placement for Y.G. The memorandum stated
that Y.G. had moved to the home of her grandparents, J.B. and C.B.
(the maternal grandparents), on 31 March 2006. In a permanency
planning hearing order and review hearing order entered 2 May 2006,
the trial court changed the permanent plan to adoption. The trial
court further ordered that Y.G. remain in the legal custody of DSS
"in the appropriate placement." The trial court preserved the
permanent plan of adoption in an order entered 12 July 2006, and
ordered Y.G. to remain in the legal custody of DSS "with placement
with/in current placement[.]"
DSS filed a petition to terminate both parents' rights as to
Y.G. on 13 September 2006. At a review hearing held on 17 January
2007, DSS orally requested that the permanent plan be changed from
adoption to guardianship, effectively withdrawing the petition for
termination of parental rights. DSS sought to place the
guardianship of Y.G. with the maternal grandparents, with whom Y.G.
had been residing since 31 March 2006. Counsel for Respondent-
Father indicated that Respondent-Father desired eitherreunification with Y.G. or for placement of Y.G. to be with Y.G.'s
paternal grandmother. At the 17 January 2007 hearing, the
following exchange also took place:
THE COURT: All right. Okay. Based on . . .
information that I have before me, I think I
have sufficient evidence to determine what is
in the best interest of these children, and I
will bestow guardianship and placement with
[C.B.]
DESIGNATED GUARDIAN: Thank you, Your Honor.
THE COURT: It's my pleasure.
[ATTORNEY FOR DSS]: Can we include in that the
caveat that the parents are not to have any
unsupervised contact and it's in [C.B.'s]
discretion to determine what type of
supervised contact they should have?
THE COURT: Of course, [C.B.] has it. All that
discretionary-I just lost my power. I gave
[C.B.] the magic wand. I no longer have it.
Okay?
[ATTORNEY FOR RESPONDENT-FATHER]: And I don't
mean to belabor the point but I do anticipate
[Respondent-Father] getting out of custody,
hopefully a week from today or whenever the
case is. Do we have some type of means for
[Respondent-Father] to contact [C.B.]?
THE COURT: If [C.B.] wishes to provide you
that information, she may.
[ATTORNEY FOR RESPONDENT-FATHER]: Okay.
THE COURT: If [C.B.] doesn't that is her
choice. Okay?
Following the 17 January 2007 hearing, the trial court entered
a review hearing order on 23 January 2007. The trial court ordered
that Y.G. be placed in the guardianship of the maternal
grandparents. The trial court did not set a date for any future
hearings. Respondent-Father appeals. Respondent-Father contends in his first assignment of error
that the trial court erred when it allowed visitation between
Respondent-Father and Y.G. to be at the discretion of Y.G.'s
guardian, C.B. We agree.
N.C. Gen. Stat. § 7B-905(c) (2005) provides:
Any dispositional order under which a juvenile
is removed from the custody of a parent,
guardian, custodian, or caretaker, or under
which the juvenile's placement is continued
outside the home shall provide for appropriate
visitation as may be in the best interests of
the juvenile and consistent with the
juvenile's health and safety.
Moreover, at every review hearing a trial court shall make written
findings regarding an "appropriate visitation plan," if relevant.
N.C. Gen. Stat. § 7B-906(c) (2005); see also In re E.C., 174 N.C.
App. 517, 522, 621 S.E.2d 647, 651 (2005).
A trial court exercises a judicial function when it awards
custody of a child and when it awards visitation rights. In re
Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849
(1971). These judicial functions may not be delegated to the
custodian of a child. Id.
If the court finds that the parent has by
conduct forfeited the right [of visitation] or
if the court finds that the exercise of the
right [of visitation] would be detrimental to
the best interest and welfare of the child,
the court may, in its discretion, deny a
parent the right of visitation with, or access
to, [the] child; but the court may not
delegate this authority to the custodian.
Id. If the trial court does not make such findings, "the court
should safeguard the parent's visitation rights by a provision in
the order defining and establishing the time, place and conditionsunder which such visitation rights may be exercised." Id.; see
also In re R.A.H., ___ N.C. App. ___, 641 S.E.2d 404, 409-10
(2007); In re C.P., ___ N.C. App. ___, 641 S.E.2d 13, 18 (2007); In
re E.C., 174 N.C. App. at 522-23, 621 S.E.2d at 651-52.
In its order entered 23 January 2007, the trial court did not
address the issue of visitation between Respondent-Father and Y.G.
The trial court did not make written findings regarding whether
Respondent-Father had forfeited his visitation rights, nor did the
trial court make written findings regarding whether visitation with
Respondent-Father would be detrimental to the best interests of
Y.G. However, while the trial court did not make a determination
of Respondent-Father's visitation rights in its order, it did
address the issue at the 17 January 2007 hearing. At that hearing,
the trial court gave Y.G.'s guardian, C.B., sole discretion to
determine when or if Respondent-Father could visit with Y.G.
Delegation of this judicial power, whether written or oral, is in
error. Accordingly, we remand to the trial court for entry of an
order regarding Respondent-Father's appropriate visitation pursuant
to N.C.G.S. § 7B-905(c).
Respondent-Father's second assignment of error alleges that
following the 17 January 2007 hearing, the trial court erred by
ordering that the case be closed and that future hearings be
waived. He argues that pursuant to N.C. Gen. Stat. § 7B-906(b)(1),
waiver of future hearings may only be ordered "if the court finds
by clear, cogent, and convincing evidence that: (1) The juvenile
has resided with a relative or has been in the custody of anothersuitable person for a period of at least one year[.]" See N.C.
Gen. Stat. § 7B-906(b)(1) (2005). Respondent-Father argues that
because Y.G. had only been in the custody of the maternal
grandparents since 10 June 2006, or perhaps 31 March 2006, Y.G. had
not, at the time of the 23 January 2007 order, "resided with a
relative or . . . been in the custody of another suitable person
for a period of at least one year[.]" See id. We agree.
"If at any time custody is restored to a parent, or findings
are made in accordance with G.S. 7B-906(b), the court shall be
relieved of the duty to conduct periodic judicial reviews of the
placement." N.C. Gen. Stat. § 7B-907(c) (2005). Future review
hearings may be waived under certain conditions:
[T]he court may waive the holding of review
hearings required by subsection (a) of this
section, may require written reports to the
court by the agency or person holding custody
in lieu of review hearings, or order that
review hearings be held less often than every
six months, if the court finds by clear,
cogent, and convincing evidence that:
(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). A trial court is required to
make these findings before waiving future hearings. In re R.A.H.,
__ N.C. App. at __, 641 S.E.2d at 410.
We first note that, in this case, the trial court did not
specifically state in its 23 January 2007 order that it was waiving
future review hearings. However, Respondent-Father points out that
at the hearing on 17 January 2007, the trial court stated it had
"just lost [its] power." Respondent-Father also notes that no
further hearings were mentioned in the trial court's 23 January
2007 order and argues that the only explanation is that the trial
court was indeed waiving future review hearings. We agree.
In its 23 January 2007 order, the trial court did find that
"[t]he juvenile ha[d] resided with a relative or ha[d] been in the
custody of another suitable person for a period of at least one
year[.]" However, this finding was not supported by the evidence.
The trial court further found that Y.G. had been placed with the
maternal grandparents only since 10 June 2006, less than one year
prior to the 23 January 2007 order. This finding also was not
supported by the evidence, as it appears that Y.G. had been placed
with the maternal grandparents on 31 March 2006. Nevertheless, the
evidence in the record tending to show that Y.G. was placed with
the maternal grandparents on 31 March 2006 also demonstrates that,
at the time of the trial court's 23 January 2007 order, Y.G. hadnot "resided with a relative or . . . been in the custody of
another suitable person for a period of at least one year[.]" See
N.C.G.S. § 7B-906(b)(1). Therefore, the trial court erred by
waiving future hearings. In light of the foregoing, we remand for
entry of an order regarding the waiver of future review hearings.
Respondent-Father does not challenge the trial court's
modification of the permanent plan from adoption to guardianship,
nor the appointment of the maternal grandparents as guardians of
Y.G. Therefore, we affirm the trial court's order as to these
issues. Respondent-Father has also listed several other
assignments of error in the record on appeal for which there are no
arguments or supporting authority in his brief. Therefore, those
assignments of error are deemed abandoned. N.C.R. App. P.
28(b)(6).
Affirmed in part; reversed in part and remanded.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***