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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-598


Filed: 2 October 2007

                                 Guilford County
B.L.,                             Nos. 06 JA 494
J.L.,                                06 JA 495
J.H.,                                06 JA 496
H.G.,                                06 JA 497
    Minor Children.

    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.

    GEER, Judge.

    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 order.

    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. Poole, 54 N.C. App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review denied, 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 and dependent.
    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. We disagree.
    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 continue.
    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., such 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 years.
    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.

Id. 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., 174 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 (1985).
    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).

Footnote: 1
    According to the trial court, the father of J.H. could not care for J.H. because he had been incarcerated since 2001, and the father of B.L. and J.L. could not provide care for them because of his past child protective services history and the fact he was stationed in Iraq.

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