Opinion
No. COA11–1358.
2012-04-17
In re A.F.
Elizabeth Kennedy–Gurnee for petitioner-appellee. Mary McCullers Reece for respondent-appellant.
Appeal by respondent from order entered 17 August 2011 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 5 March 2012. Elizabeth Kennedy–Gurnee for petitioner-appellee. Mary McCullers Reece for respondent-appellant.
North Carolina Administrative Office of the Courts, by Appellate Counsel Pamela Newell, for guardian ad litem.
GEER, Judge.
Respondent father appeals from a permanency planning order granting guardianship of his daughter A.F. (“April”) to her paternal grandmother. Respondent primarily contends on appeal that competent evidence did not support the trial court's finding that the conditions which led to April's removal from her parents' custody had not been alleviated and were not likely to be eliminated in the foreseeable future. As we find there was sufficient evidence in the record to support that finding, we affirm.
The pseudonym “April” is used throughout this opinion to protect the minor's privacy and for ease of reading.
Facts
On 19 January 2010, Cumberland County Department of Social Services (“DSS”) filed a juvenile petition asserting that April was an abused, neglected, and dependent juvenile. The petition alleged that April sustained second-degree burns on both feet and the back of her legs after being immersed in hot water. April's mother was preparing to give her a bath and turned on the hot water. Before her mother could turn on the cold water, respondent placed April in the tub. The parents did not seek medical treatment for the burns because they were certain child protective services would be contacted. April was placed in the nonsecure custody of DSS on that same date.
The trial court adjudicated April neglected on 14 April 2010. At disposition, the trial court ordered the parents to complete psychological evaluations and parenting assessments and follow through with any and all recommendations. The trial court also ordered a home study of the paternal grandmother's home in Oklahoma.
The matter came on for a permanency planning review hearing almost a year later on 14 March 2011. The trial court found that the parents had each been ordered to undergo a psychological evaluation and parenting assessment and that those evaluations had not been completed. The trial court changed the permanent plan to guardianship with relatives. At a subsequent permanency planning hearing on 11 April 2011, the trial court ceased reunification efforts with the parents. After a permanency planning review hearing on 29 June 2011, the trial court entered an order on 17 August 2011 granting guardianship of April to her paternal grandmother. Respondent timely appealed to this Court.
Discussion
Respondent first argues that insufficient competent evidence supported the trial court's following finding of fact:
16. Return of the juvenile to the custody of the Respondents would be contrary to the welfare and best interest of the juvenile. It is not possible for the juvenile to return home now or within the next six (6) months inasmuch as the conditions which led to the removal of the juvenile from the home have not been alleviated and they are not likely to be alleviated into the foreseeable future as this Court has herein found the failure of the Respondent Parents to make reasonable progress in initiating and or completing the assessments ordered by this Court.
At a permanency planning hearing, “[t]he court may consider any evidence, including hearsay evidence as defined in G.S. 8C1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” N.C. Gen.Stat. § 7B–907(b) (2011). Appellate review of the permanency planning order is limited to “whether there is competent evidence in the record to support the findings and the findings support the conclusions of law.” In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).
Respondent claims that the trial court's order was not supported by sufficient evidence because the court improperly based its finding solely on the DSS court report and prior orders. In fact, the trial court heard sworn testimony from the DSS social worker, as well as receiving a detailed DSS report and reviewing prior orders, including the 29 June 2011 permanency planning review order. The order on appeal “specifically readopt [ed] the findings from [the 29 June 2011] order and incorporate[d] the findings by reference as if fully set forth herein.” This evidence—which supports the findings of fact—is sufficient. See id. at 107, 595 S.E.2d at 161–62 (holding that permanency planning order's findings of fact were supported by competent evidence when trial court had before it detailed DSS report, guardian ad litem's testimony, and prior court orders).
Moreover, while respondent points to the fact that he completed his parenting class, his relationship and connection class, and the psychological and parenting assessments as ordered, the trial court was entitled to give greater weight to other evidence supporting its determination that the parents failed to make reasonable progress in initiating and completing the court-ordered assessments. Prior orders had found that respondents were making only minimal progress towards reunification. Respondent may have completed his classes by April 2010, but he then took another year to complete the psychological evaluation and parenting assessment.
Respondent's evaluator noted in the psychological/parenting evaluation that respondent had procrastinated throughout the evaluation process. She indicated that respondent ignored invitations for appointments and inquiries related to his case, that he waited months between sessions to schedule appointments, and that he attended sessions only after being urged to go by the DSS social worker. The evaluator stated respondent had a detached parenting style and that respondent showed minimum motivation to support his wife during her parenting observation, with respondent choosing to sleep instead.
The evaluator explained that respondent is “characterized by personality risks factors that will most likely adversely effect [sic] his functioning, especially when required to work as a member of a team in any circumstance to include marriage and family.” The evaluator recommended individual and marital therapy for the parents. At the time of the permanency planning review hearing, however, the parents had not engaged in any therapy.
The trial court's finding of fact 16 was, therefore, supported by competent evidence. Respondent contends further, however, that the trial court abused its discretion by awarding guardianship to the paternal grandmother instead of simply granting the grandmother custody.
A trial court abuses its discretion when its decision is “so arbitrary 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). In this case, April had been in the custody of DSS since 16 January 2010. April was placed with her paternal grandmother in Oklahoma on 19 October 2010 and was doing well in that placement. As discussed above, at the time of the permanency planning review hearing, there were issues the parents still needed to address.
Respondent argues that custody was preferable because custody “may be modified based upon a substantial change of circumstances affecting the welfare of the child,” while, respondent contends, “some neglect of duty must be shown in order to modify a guardianship.” Respondent has misread the statute which provides that “the court may not terminate the guardianship ... unless the court finds [1] that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest, [2] that the guardian is unfit, [3] that the guardian has neglected a guardian's duties, or [4] that the guardian is unwilling or unable to continue assuming a guardian's duties.” N.C. Gen.Stat. § 7B–600(b) (2011) (emphasis added). Neglect is only one ground for termination of guardianship. The focus is still on the best interests of the child.
A stated purpose of the Juvenile Code is to provide standards to ensure that “the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile's best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time.” N.C. Gen.Stat. § 7B–100(5) (2011) (emphasis added). Respondent's arguments disregard the goal of permanence and the importance of permanence to April, who had been placed outside of the home for a year and a half. We conclude that given the trial court's fully-supported findings in the permanency planning orders, the court did not abuse its discretion in granting guardianship to the paternal grandmother. We, therefore, affirm.
Affirmed. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).