Appeal by respondents from order entered 9 March 2007 by Judge
Sherry F. Alloway in Guilford County District Court. Heard in the
Court of Appeals 4 September 2007.
Office of the Guilford County Attorney, by Deputy County
Attorney James A. Dickens, for petitioner-appellee.
Duncan B. McCormick for respondent-appellant mother.
Robin E. Strickland for respondent-appellant father.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem.
Respondent mother and respondent father appeal from the trial
court's order adjudicating all four children neglected and
dependent and specifying a concurrent plan of reunification and
adoption. Although both parents challenge certain findings of fact
relating to the adjudication, they stipulated to the neglect and
dependency adjudication and, therefore, those arguments were not
properly preserved for appeal. With respect to the parents'
challenges to the trial court's dispositional provisions, we agree
only that the trial court's order regarding visitation isinadequate under this Court's recent decisions. We remand so that
the trial court can enter an appropriate plan of visitation or
approve a plan developed by petitioner Guilford County Department
of Social Services.
This action involves four children of respondent mother:
eleven-year-old B.L., nine-year-old J.L., six-year-old J.H., and
four-year-old H.G. Respondent father is the father of H.G. only.
The trial court found the following facts with respect to the
children and respondents.
B.L. was first adjudicated neglected in 1996, when she was 10
months old. She had two healing transverse fractures of her left
forearm, and there were issues of domestic violence between
respondent mother and B.L.'s father. In 1997, B.L. and J.L. were
placed in foster care after their father shook J.L., who was three
months old, causing bilateral hematomas of the head and brain area
and non-accidental trauma to J.L.'s sixth and seventh ribs. The
father pled guilty to felony injury to a child with intent to
inflict bodily injury.
In 2002, the Davidson County Department of Social Services
determined that respondent father had improperly disciplined J.L.
with a belt, causing bruises. In March 2003, petitioner Guilford
County Department of Social Services ("DSS") substantiated
allegations indicating that the children were neglected by being
subjected to an injurious environment as a result of domestic
violence and impulsive behaviors. DSS provided treatment servicesuntil 12 May 2003. During an investigation of an allegation of
sexual abuse received by DSS in October 2005, respondent mother
told DSS that she was being subjected to domestic violence.
At that time, respondent mother filed for a protective order
and caused respondent father to leave her home. Apparently,
respondent father was incarcerated. During that time, respondent
mother and the children moved, and the children transferred to a
different school. Respondent mother expressed fear of respondent
father and was concerned about his upcoming release from jail. She
took vacation time from work when respondent father was released
from jail so that he could not locate her. During one assessment,
respondent mother disclosed to a DSS social worker that respondent
father was verbally and physically abusive to the children and
would often throw one of the children around the living room as a
means of discipline.
On 16 November 2006, DSS received a report of domestic
violence and learned that respondent mother, despite the protective
order, had allowed respondent father into her home. The trial
court found that respondent father had frequently violated the
protective order. Respondent father's criminal record includes
convictions in February 2006 for assault on respondent mother and
violation of the domestic violence protective order; in May 2006
for two counts of violation of a domestic violence protective
order; and in August 2006 for threatening phone calls.
Respondent mother admitted that respondent father had visited
her home. The trial court found: "[S]he believes that he haschanged because [respondent father] stated that." On 20 November
2006, respondent mother dismissed the protective order because she
believed that she and respondent father could not get counseling
with the order "over our heads."
On 21 November 2006, DSS filed a petition alleging that the
children were neglected and dependent. On 9 March 2007, the trial
court entered an adjudication and dispositional order concluding
that the children were neglected and dependent. In addition to the
above findings, the court found, with respect to dependency, that
respondent father could not provide care for H.G. "due to his
unresolved domestic violence issues." As for respondent mother,
the court noted her "inability to protect her children from further
acts [o]f domestic violence . . . ."
(See footnote 1)
Among other provisions, the trial court ordered that custody
remain with DSS, that all visitation be supervised by DSS, that the
permanent plan for the children be reunification with a concurrent
plan of adoption, and that the biological parents and extended
family have no contact with the children outside their periods of
supervised visitation. Finally, the court ordered that DSS "begin
Termination of Parental Rights procedures by preparing the
Termination of Parental Rights petition and have it ready to file
by the next court date." Respondents timely appealed from this
Respondent father first argues that the trial court's
conclusion that H.G. was neglected and dependent is not supported
by competent evidence or the findings of fact. At the hearing on
DSS' petition, however, respondent father stipulated to a finding
of neglect and dependency. Indeed, the trial court's order
recites: "Based on the foregoing Findings of Fact and Conclusions
of Law and with the consent of all parties herein
, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that said juveniles are Neglected and
Dependent as defined by N.C.G.S. 7B-101(9)(15) [sic]." (Emphasis
added.) Respondent father has not disputed this statement by the
trial court regarding his consent.
It is well established that "'stipulations are judicial
admissions and are therefore binding in every sense, preventing the
party who agreed to the stipulation from introducing evidence to
dispute it and relieving the other party of the necessity of
producing evidence to establish an admitted fact.'" In re I.S.
170 N.C. App. 78, 86, 611 S.E.2d 467, 472 (2005) (quoting Thomas v.
, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc.
, 304 N.C. 733, 287 S.E.2d 902 (1982)). Because
respondent father's stipulation is binding, he cannot now argue on
appeal that the trial court erred in finding the children neglected
Respondent mother challenges only a single finding of fact:
"[Respondent mother] admits [respondent father] has visited her
home and that she believes that he has changed because [respondentfather] stated that." According to respondent mother, the
suggestion that she currently "believes" respondent father is not
supported by the evidence. The transcript, however, reveals that
at the conclusion of the adjudication portion of the hearing,
respondent mother's attorney announced to the court that all the
parties had agreed upon a stipulated petition. While reading the
amended petition into the record to reflect the parties'
stipulations, the DSS attorney specifically stated that the
mother's attorney stipulated to the allegation of paragraph five of
the petition that she "believes [respondent father] has changed .
. . because ahh [sic] [he] stated that." The court asked
respondent mother's attorney to confirm the stipulation, and her
counsel responded affirmatively. Because of this stipulation,
respondent mother may not challenge this finding of fact on appeal.
With respect to the trial court's disposition, both
respondents contend that the trial court abused its discretion in
adopting a concurrent plan of reunification and adoption and
directing DSS to prepare a petition to terminate parental rights.
Our legislature has specifically authorized such concurrent
plans: "Reasonable efforts to preserve or reunify families may be
made concurrently with efforts to plan for the juvenile's adoption,
to place the juvenile with a legal guardian, or to place the
juvenile in another permanent arrangement." N.C. Gen. Stat. § 7B-
507(d) (2005). This Court has confirmed that "[t]he plain meaning
of the above statutory language provides courts with the option ofimplementing other permanent placement plans, including adoption,
concurrently with reunification efforts." In re J.J.L.
, 170 N.C.
App. 368, 371, 612 S.E.2d 404, 406 (2005).
Respondent father, however, argues that the trial court
essentially conducted an impromptu "permanency planning hearing"
pursuant to N.C. Gen. Stat. § 7B-907 (2005) and failed to give him
adequate prior notice that such a hearing would be conducted at
that time. Yet, because N.C. Gen. Stat. § 7B-507, which authorizes
the concurrent plan, sets out requirements for "an order for
continued nonsecure custody, a dispositional order, or a review
order," N.C. Gen. Stat. § 7B-507(a), it necessarily must anticipate
that concurrent plans be included in dispositional orders such as
the one in this case. Further, the statute specifically requires
that the trial court include "findings as to whether a county
department of social services should continue to make reasonable
efforts to prevent or eliminate the need for placement of the
juvenile." N.C. Gen. Stat. § 7B-507(a)(3). Thus, the trial court
was required to decide whether reunification efforts should
Moreover, § 7B-507(a)(5) specifies that the order "[m]ay
provide for services or other efforts aimed at returning the
juvenile to a safe home or at achieving another permanent plan for
the juvenile." The disposition order was, therefore, permitted to
include provisions relating to "another permanent plan," id.
as a termination of parental rights. The order was a properdispositional order and not, as respondent father contends, an
improperly noticed permanency planning order under § 7B-907.
Respondents also object to the provision requiring DSS to
prepare a termination of parental rights petition. This provision
was consistent with § 7B-507(a)(5)'s authorization that a
dispositional order provide for "other efforts aimed at returning
the juvenile to a safe home or at achieving another permanent
plan." The provision did not predetermine whether that petition
should be filed, but instead ensured that if the court concluded in
a subsequent hearing that proceeding with a termination hearing
would be in the children's best interests, the petition would be
timely filed. We cannot conclude that this provision is an abuse
of discretion given that the trial court had evidence before it
that some of the children had been subjected to domestic violence
For the same reason, we cannot agree with respondent mother
that the concurrent plan was not in the best interests of the four
children. We review the trial court's decision regarding a child's
best interests for an abuse of discretion. In re Nesbitt
, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001). Here, B.L. and J.L.
were subjected to domestic violence by their father _ without being
protected by their mother _ 10 years ago. Further, all of the
children were exposed to an environment of domestic violence by
respondents beginning in at least 2002, with evidence being
presented that respondent mother was still unwilling or unable to
protect her children from respondent father by late 2006. Given respondent father's extensive criminal record, including
serious violent crimes; his repeated acts of violence; and his
violations of protective orders, together with respondent mother's
pattern of engaging in abusive relationships and apparent inability
to consistently protect her children, the trial court could
reasonably question the likelihood of progress by the parents. As
a result, the trial court's order allowed respondents to work on
addressing the issues necessary for reunification, while at the
same time ensuring that the trial court could adopt and quickly
implement whichever plan reflected the best interests of the four
children without prolonging matters for children already involved
with social services for as much as 10 years.
Respondent mother next contends that the court violated N.C.
Gen. Stat. § 7B-905(c) (2005) by failing to establish an
appropriate visitation plan. The court's order specified with
respect to visitation:
IT IS ORDERED that all visitation be
supervised by and at the Guilford County
Department of Social Services or other
facility designated by the Department. There
are to be no designees for any visitation
between the minor children and their parents.
IT IS ORDERED that all visitation between
the minor children and their respective
extended family members is to be supervised by
and at the Department of Social Services or
other facility designated by the Department.
We agree with respondent mother that this order is not adequate
under N.C. Gen. Stat. § 7B-905(c).
That statute provides: Any dispositional order under which a juvenile
is removed from the custody of a parent . . .
shall provide for appropriate visitation as
may be in the best interests of the juvenile
and consistent with the juvenile's health and
safety. If the juvenile is placed in the
custody or placement responsibility of a
county department of social services, the
court may order the director to arrange,
facilitate, and supervise a visitation plan
expressly approved by the court.
We have held that "[a]n appropriate visitation plan" in
compliance with N.C. Gen. Stat. § 7B-905(c) "must provide for a
minimum outline of visitation, such as the time, place, and
conditions under which visitation may be exercised." In re E.C.
174 N.C. App. 517, 523, 621 S.E.2d 647, 652 (2005).
The order in this case does not contain the "minimum outline"
required by E.C.
Instead, the order effectively delegates to DSS
responsibility for setting the terms of visitation. N.C. Gen.
Stat. § 7B-905(c) permits a court to order DSS "to arrange,
facilitate, and supervise a visitation plan," but only if that plan
is "expressly approved by the court." Because the order does not
specifically approve any plan submitted by DSS, the order does not
meet the requirements of N.C. Gen. Stat. § 7B-905(c). We must,
therefore, remand to the trial court for further specification of
the terms of visitation or approval of a DSS plan. See E.C.
N.C. App. at 523, 621 S.E.2d at 652.
Finally, respondent mother argues that the trial court erred
when it ordered her to refrain from all contact with her children
other than that permitted during the DSS-supervised visits. As
this Court stated recently in In re C.M.
, __ N.C. App. __, __, 644S.E.2d 588, 595 (2007), "[t]his Court reviews the trial court's
dispositional orders of visitation for an abuse of discretion." An
abuse of discretion occurs when a trial court's ruling is "so
arbitary that it could not have been the result of a reasoned
decision." White v. White
, 312 N.C. 770, 777, 324 S.E.2d 829, 833
The trial court had before it evidence from the children's
therapist that B.L. had age-inappropriate knowledge regarding the
judicial proceedings and adult issues, including her mother's
romantic relationships. There was also evidence that B.L. had been
communicating with respondent mother through email ever since B.L.
had come into the custody of DSS. We cannot conclude that the
trial court's determination that respondent mother should not be
permitted to communicate with her children through unsupervised
channels is a manifestly unreasonable manner to limit the
children's exposure to inappropriate information. This final
assignment of error is, therefore, overruled.
Affirmed in part; remanded in part.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).