Opinion
No. COA12–8.
2012-06-5
In the Matter of J.P. and T.P.
Assistant Appellate Defender Annick Lenoir–Peek, for respondent-appellant mother. James W. Spicer, III, for petitioner-appellee Wayne County Department of Social Services.
Appeal by mother from orders entered 11 October 2011 by Judge Les Turner in Wayne County District Court. Heard in the Court of Appeals 14 May 2012. Assistant Appellate Defender Annick Lenoir–Peek, for respondent-appellant mother. James W. Spicer, III, for petitioner-appellee Wayne County Department of Social Services.
Pamela Newell, for guardian ad litem.
STEELMAN, Judge.
The trial court failed to make the statutorily-required findings of facts upon waiving further review hearings. The trial court was not required to make findings pursuant to N.C. Gen.Stat. § 7B–507(h) upon cessation of reunification efforts in this case.
I. Factual and Procedural Background
Tessa P. (“mother”) is the mother of minor children J. P., T.P., and M.F. On 13 May 2009, the Wayne County Department of Social Services (“DSS”) filed petitions alleging that J.P. and T.P. were neglected juveniles. DSS alleged that it had received a neglect report on 12 November 2008 regarding the juveniles stating that their older sibling, M.F., was observed with a burn mark on his right forearm. There were conflicting stories concerning how M.F. received the injury, but a child medical examination stated that the injury was not self-inflicted or accidental. DSS asserted there were safety concerns because no person had come forward with information disclosing how M.F. was injured. DSS further noted that mother and the juveniles' father had separated; that the juveniles' father suffered from alcohol abuse; and that mother had “mental health problems that would keep her from being an appropriate parent for her children at this time.” The juveniles were placed with their maternal aunt and uncle.
On 26 August 2009, the juveniles were adjudicated to be neglected and custody was granted to their maternal aunt and uncle. Custody was later granted to DSS with placement continuing with the maternal aunt and uncle.
On 11 October 2011, the trial court entered a permanency planning review order granting custody and guardianship to the maternal aunt and uncle. The trial court relieved DSS of further reunification efforts, relieved counsel and the guardian ad litem, and removed the case from the active calendar.
Mother appeals.
II. Failure of Trial Court to Making Findings Required by N.C. Gen.Stat. § 7B–906(b)
Mother contends that the trial court erred by failing to make findings required by N.C. Gen.Stat. § 7B–907(c) and § 7B–906(b) when it waived further review hearings. The guardian ad litem agrees that the findings were not made and DSS elected to ignore this issue in their brief. We agree with mother.
The court may waive the holding of periodic review hearings if it 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) (2011). While formal findings are not necessary, failure to find all of these criteria constitutes reversible error. See In re R.A.H., 182 N.C.App. 52, 62, 641 S.E.2d 404, 410 (2007). In the instant case, the trial court did not make findings regarding N.C. Gen.Stat. § 7B–906(b)(3) or (4). Accordingly, we reverse the order of the trial court and remand with instructions that the trial court make the findings required by N.C. Gen.Stat. § 7B–906(b).
III. Findings Required to Cease Reunification Efforts
In her second argument, mother contends that the trial court erred by failing to make required findings under N.C. Gen.Stat. § 7B–507(b) when ceasing reunification efforts. We disagree.
The provisions of N.C. Gen.Stat. § 7B–507(b) only apply to orders “placing a juvenile in the custody or placement responsibility of a county department of social services.” N.C. Gen.Stat. § 7B–507(b) (2011). In the instant case, the trial court changed the permanent plan for the juveniles to guardianship with their maternal aunt and uncle, designated them as the juveniles' guardians, and placed the juveniles in the custody of the maternal aunt and uncle. The court did not grant custody or placement authority over the juveniles to DSS. Consequently, we hold that N.C. Gen.Stat. § 7B–507(b) is inapplicable, and the trial court did not err by failing to make the findings required by that statute. In re Padgett, 156 N.C.App. 644, 649, 577 S.E.2d 337, 341 (2003).
Affirmed in part; reversed and remanded in part. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).