Opinion
No. COA09-1560
Filed 4 May 2010 This case not for publication
Appeal by respondent-father from order entered 25 September 2009 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 5 April 2010.
Kathleen Arundell Widelski, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services. Wyrick Robbins Yates Ponton LLP, by Tobias S. Hampson, for respondent-appellant father. Pamela Newell Williams, for Guardian Ad Litem.
Mecklenburg County Nos. 09 JA 523-27.
Respondent-father appeals from an adjudication and disposition order adjudicating his children, C.S. and D.J., neglected and dependent juveniles. We affirm in part, reverse in part, vacate in part, and remand.
I. Background
C.J. is the mother of C.S., D.J., M.W., A.W., and M.J. (collectively "the children"). Respondent-father is the father of the two youngest children, C.S. and D.J. On 22 July 2009, Mecklenburg County Youth and Family Services ("YFS") filed a juvenile petition alleging that the children were neglected and dependent. The petition alleged (1) that C.J. and respondent-father have a history of domestic violence; (2) that C.J. and the children have resided in a shelter to keep away from respondent-father; and (3) that respondent-father believed a maternal uncle, who lives with or frequently visits C.J.'s home, has the potential to molest his children. The petition further alleged that the fathers of the older children abandoned the children and that there were no known relative placements for C.S. and D.J. As a result of the petition, YFS was granted nonsecure custody of the children.
The trial court held a hearing on the juvenile petition on 3 September 2009. At this hearing, respondent-father entered into a "Stipulation" regarding his children, C.S. and D.J. The "Stipulation" was signed by respondent-father, his attorney and the YFS attorney. C.J. also filed a stipulation with the trial court which included other facts regarding C.S., D.J., M.W., A.W., and M.J. The document was signed by C.J., her attorney, and the YFS attorney. Both parents also testified under oath that they were stipulating to the respective documents they filed with the trial court. Both parents also requested that the trial court adjudicate the children as dependent, but not neglected.
By order filed 25 September 2009, the trial court adjudicated all of the children neglected and dependent. The trial court also concluded that "return to [the children's] own home is contrary to their best interest." The trial court ordered legal custody of the children to remain with YFS and allowed supervised visitation for respondent-father with his children, C.S. and D.J., and supervised visitation for C.J. with all the children. The trial court also ordered the "individual who expressed interest in placement for the juveniles" to contact YFS. C.J. did not appeal the adjudication and disposition order. Respondent-father appeals.
II. Standard of Review
Review of a trial court's adjudication of neglect and dependency requires an examination of (1) the findings of fact which must be supported by clear and convincing evidence, and (2) the conclusions of law which must be supported by the findings of fact. See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). "The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen. Stat. § 7B-805 (2009).
III. Adjudication
A. Neglect
Respondent-father argues that the trial court's findings of fact are insufficient to support the trial court's conclusion that C.S. and D.J. were neglected juveniles. We agree.
A neglected juvenile is defined as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15)(2009). This Court has "required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline in order to adjudicate a juvenile neglected." In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (internal quotations and citations omitted).
In the instant case, the trial court found that "[t]he stipulated facts form the basis for the Court's findings of fact." However, the trial court did not indicate which of the stipulations it relied upon to support its adjudication. "It is well-established that [w]hen a trial court is required to make findings of fact, it must make the findings of fact specially." In re Z.J.T.B., 183 N.C. App. 380, 387, 645 S.E.2d 206, 211 (2007) (internal quotations and citations omitted). The trial court's findings in the instant case are inadequate to support its adjudication because they fail to establish "specific ultimate facts . . . sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (internal quotations and citation omitted).
Moreover, a review of the respondent-father's stipulations reveal nothing that would sufficiently support an adjudication of neglect against respondent-father. The most troubling stipulations of respondent-father refer to past "conflict" between the parents, which led to two domestic violence arrests for respondent-father in 2007 and 2008. However, there was no indication in respondent-father's stipulations of any recent domestic violence between the parents when the petition was filed in July 2009, and, as a result, there is no way to determine whether C.S. and D.J. suffered some physical, mental, or emotional impairment, whether C.S. and D.J. lived in an injurious environment, or whether there was a substantial risk of such impairment as a consequence of the failure of respondent-father to provide proper care, supervision, or discipline, based upon respondent-father's stipulations.
The trial court made no findings and there was insufficient evidence in respondent-father's stipulations that C.S. and D.J. lived in an injurious environment, or that they had not received proper care, supervision, or discipline, or that there was a substantial risk that C.S. and D.J. would suffer some impairment as a result of living in an injurious environment. Accordingly, an adjudication of neglect cannot be supported, and thus, this adjudication is reversed.
B. Dependency
Respondent-father also contends the trial court's findings of fact are insufficient to support the trial court's conclusion that C.S. and D.J. are dependent juveniles. We disagree.
A dependent juvenile is defined as one "in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9) (2009). In determining whether a juvenile is dependent, the trial court is required to "address both[:] (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
The trial court's adjudication of C.S. and D.J. as dependent juveniles was based upon the same findings of fact that were used to adjudicate C.S. and D.J. as neglected. As noted above, these findings were erroneous as a result of the failure of the trial court to make specific findings of fact which would allow for meaningful appellate review. However, in contrast to the neglect adjudication, respondent-father's counsel specifically requested "a finding of dependency only."
"According to well-established North Carolina law, a litigant will not be heard to complain on appeal about a decision that a trial judge made at that litigant's request." In re K.C., ___ N.C. App. ___, ___, 681 S.E.2d 559, 564 (2009). Although we acknowledge the legal deficiencies in the trial court's findings of fact, we cannot reverse the adjudication of dependency in the instant case because "[h]aving specifically invited the trial court to honor [his] wishes by [adjudicating C.S. and D.J. dependent], Respondent-[father] is in no position to complain when the trial court did what Respondent-[father] effectively asked the trial court to do." Id. This assignment of error is overruled.
III. Visitation
Respondent-father argues the trial court erred by ordering "supervised visitation without providing any guidelines for the frequency, place or other conditions of visitation." We agree.
N.C. Gen. Stat. § 7B-905(c) 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. 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.
N.C. Gen. Stat. § 7B-905(c) (2009). Our Court has made clear that whether a trial court decides to allow visitation or not, its dispositional order must include an order regarding visitation. In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d 647, 651 (2005). If a court finds that visitation would be in the best interests and welfare of the child, "the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised." In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971); see also In re E.C., 174 N.C. App. at 523, 621 S.E.2d at 652 ("An appropriate visitation plan must provide for a minimum outline of visitation such as the time, place, and conditions under which visitation may be exercised."). This is because "[t]he awarding of visitation of a child is an exercise of a judicial function, and a trial court may not delegate this function to the custodian of a child." Id. at 522, 621 S.E.2d at 652 (citation omitted).
In the instant case, the trial court ordered that respondent-father "shall be provided with supervised visitation with his children." However, the trial court did not safeguard respondent-father's visitation rights by providing for "conditions under which visitation may be exercised." Id. at 522, 621 S.E.2d at 652. As a result, the trial court erred by failing to establish a specific visitation plan "expressly approved by the court" in accordance with N.C. Gen. Stat. § 7B-905(c). Consequently, we vacate the visitation portion of the trial court's order and remand the instant case so that the trial court can establish an appropriate visitation plan.
IV. Conclusion
The trial court erred when it relied upon respondent-father's stipulations in lieu of making specific findings of fact to support its adjudications. In addition, respondent-father's stipulations do not provide clear and convincing evidence that C.S. and D.J. were neglected juveniles. As a result, we reverse the trial court's neglect adjudication. However, because respondent-father specifically requested an adjudication of dependency, we do not disturb this adjudication. The trial court's order failed to provide respondent-father with an appropriate visitation plan, and as a result, we vacate that portion of the trial court's order and remand the case for entry of an appropriate visitation schedule.
Affirmed in part, reversed in part, vacated in part, and remanded.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).