Opinion
No. COA05-132
Filed 1 November 2005 This case not for publication
Appeal by respondent-appellant from order entered 16 August 2004 by Judge Rose V. Williams in District Court, Wayne County. Heard in the Court of Appeals 21 September 2005.
No brief filed for petitioner-appellee Wayne County Department of Social Services. Annick Lenoir-Peek for respondent-appellant father. Winifred H. Dillon for respondent-appellee mother.
Wayne County No. 03-J-51.
The Wayne County Department of Social Services (DSS) filed a petition dated 6 March 2003 alleging K.J.H. to be an abused, neglected, and dependent juvenile. The facts alleged in the petition were that four-month-old K.J.H. was diagnosed on 5 March 2003 with four breaks in his leg and at least nine broken ribs, and that neither respondent-father nor respondent-mother (collectively the parents) had an explanation for K.J.H.'s injuries. Pursuant to the petition, the trial court granted DSS non-secure custody of K.J.H.
The matter was set for adjudication on 8 May 2003 but was continued until 26 June 2003 because respondent-mother was charged with criminal child abuse. The trial court placed K.J.H. in the custody of his paternal grandfather and ordered supervised visitation with each parent separately. Respondent-mother's visitation with K.J.H. was to occur at DSS once a month. Respondent-father's visitation was to be supervised by the paternal grandfather.
At the adjudication hearing on 26 June 2003, the parents admitted that K.J.H. was dependent, abused, and neglected at the time the petition was filed. The parents also admitted that there was a factual basis for the allegations contained in the petition, but they did not admit to any specific allegations. The trial court found that the paternal grandfather continued to be a fit and proper person to have custody of K.J.H. and further found that it was contrary to the welfare of K.J.H. to be placed in the custody of either parent. The trial court concluded that it was in the best interest of K.J.H. that his custody continue to be with the paternal grandfather and ordered custody accordingly. The trial court also ordered continued supervised visitation with the parents as set forth in the previous order.
The trial court conducted review hearings on 30 September 2003, 8 January 2004, and 29 March 2004. Pursuant to the 30 September 2003 review hearing, the trial court changed respondent-father's visitation from supervised to unsupervised. Respondent-mother's visitation remained supervised by DSS. Pursuant to the 8 January 2004 review hearing, the trial court awarded custody of K.J.H. to respondent-father. The trial court continued supervised visits with respondent-mother but changed the supervising agent from DSS to respondent-mother's therapist and increased visitation from once a month to biweekly. Pursuant to the 29 March 2004 review hearing, the trial court continued custody and visitation as per the previous order.
At the permanency planning hearing held 15 July 2004, the evidence tended to show that K.J.H. was diagnosed on 5 March 2003 with four fractures in his left leg and at least nine rib fractures at various stages of healing, as well as a collapsed lung and fluid around the lung. The parents initially denied injuring K.J.H. and had no explanation for his injuries. Respondent-mother eventually confessed to abusing K.J.H. and stated that respondent-father had no knowledge of the abuse. Criminal charges were filed against respondent-mother. Respondent-mother later recanted her confession, claiming she falsely confessed in order to resolve the allegation and to avoid having K.J.H. placed in foster care. At the time of the permanency planning hearing, the criminal charges had not been tried.
K.J.H. was initially placed in the custody of his paternal grandfather. Six months later, respondent-father was granted custody of K.J.H. While in the custody of respondent-father, K.J.H.'s needs were met and he received good care from respondent-father and from the paternal grandparents. K.J.H. was healthy, attended day care, and continued to receive services through the Early Childhood Interventions Program at Wayne County Health Department. Respondent-father completed a psychological and psychiatric evaluation, which indicated no serious problems. Respondent-father also successfully completed parenting classes ordered by the court.
Respondent-mother completed a psychological evaluation and followed all of her psychologist's recommendations, including completion of two sets of parenting classes. Despite moving to the Charlotte area to live with her family, respondent-mother traveled four hours to Wayne County regularly for her therapy sessions and visitation with K.J.H. According to a DSS report dated 8 July 2004, supervised visits between respondent-mother and K.J.H. were going well. Respondent-mother was appropriate in her contact with K.J.H., and K.J.H. seemed to be bonding with respondent-mother. The guardian ad litem (GAL), however, reported that K.J.H. experienced distress after visits with respondent-mother. The GAL testified that she had viewed a videotape of K.J.H. crying and screaming after a supervised visit with respondent-mother.
Much of the evidence presented at the permanency planning hearing was contained in written reports, which the trial court incorporated by reference into its findings of fact. A trial court may consider all written reports and materials submitted in connection with permanency planning proceedings. In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003); N.C. Gen. Stat. § 7B-907(b) (2003). However, written reports from outside sources should not be broadly incorporated by reference into court orders, and the trial court may not delegate its fact finding duty. In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) (citing In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)).
DSS requested that the case be closed because DSS was satisfied with K.J.H.'s placement with respondent-father. DSS recommended that respondent-mother have supervised visitation with K.J.H. The GAL, however, advocated that the best interests of the child would be served by ceasing visitation with respondent-mother and pursuing termination of respondent-mother's parental rights. The GAL's paramount concern was that the case be closed. To that end, the GAL conceded to supervised visitation with respondent-mother, as long as visitation was supervised by the paternal grandparents.
At the end of the hearing, the trial court announced that the permanent plan for K.J.H. was reunification with a parent, which had been achieved by placing K.J.H. in the custody of respondent-father. The trial court entered a permanency planning order on 16 August 2004. In that order, which is the subject of this appeal, the trial court made the following findings of fact:
1. That this matter came on for a permanency planning hearing.
. . . .
6. That custody of the juvenile has been placed with the father[.]
. . . .
9. That the Court in this action has adjudicated the juvenile to be an abused juvenile, but has never determined who abused the juvenile.
10. That no Criminal Court has determined anyone's guilt with respect to the abuse of the juvenile.
11. That the mother made an admission that she had abused the juvenile and has been charged criminally, but has since recanted her admission.
12. That the mother believed that if this Court could not determine that a particular person was responsible for the abuse that the juvenile would be placed in foster care.
13. That the juvenile was a colicky newborn.
. . . .
15. That both parents have done everything that has been ordered by the Court.
16. That the father of the juvenile has undergone a psychological evaluation and no problems were reported.
17. That the juvenile has been in the custody and/or care of the father and the father is providing good care for the juvenile.
18. That the [paternal grandparents], who are separated, assist the father in providing care for the juvenile and the paternal grandmother of the juvenile has been a resource to assist in providing care for the juvenile.
. . . .
20. That the mother of the juvenile has followed all the recommendations of [DSS] and the [GAL] and has complied with all orders of the Court.
21. That the mother has undergone a psychological evaluation and no serious problems have been determined.
22. That the mother has completed two (2) separate sets of parenting classes.
23. That the mother is being counseled by Patricia Peykar and has been since April 13, 2003, and comes from Stanly County for the counseling sessions.
. . . .
25. That this case should be closed, but the Court wants to provide visitation for the mother with the juvenile.
26. That the [GAL] and the father of the juvenile objected to the provision of visitation set out below for the mother.
27. That [the maternal grandmother] always accompanies the mother . . . when she visits [the juvenile].
28. That the father of the juvenile continues to be a fit and proper person to have custody of the juvenile.
The trial court concluded as a matter of law:
1. That the Court has jurisdiction over the parties and subject matter to this action and this matter is properly before the Court.
2. That the best interest of the juvenile will be promoted and served by continuing custody with [respondent-father].
3. That the mother should have supervised visitation with the juvenile as set out below.
The trial court ordered visitation with respondent-mother to continue but changed the supervising party from respondent-mother's therapist to the maternal grandmother. The trial court also ordered that pursuant to a favorable home study by the Stanly County Department of Social Services, the home of the maternal grandparents would be the location of respondent-mother's visitation, and said visitation would then increase from biweekly afternoons to biweekly weekends. The court set a review hearing for 14 October 2004. Respondent-father appeals.
I.
Respondent — father contends that the trial court's findings of fact are not supported by competent evidence and, in turn, the findings of fact do not support the conclusion of law. Respondent-father assigns error to the trial court's finding that no serious psychological problems with respondent-mother were determined by a psychological evaluation. A trial court's findings of fact in a permanency planning order are conclusive on appeal when they are supported by competent evidence. In re C.E.L., ___ N.C. App. ___, ___, 615 S.E.2d 427, 430 (2005). The trial court found as fact that "the mother has undergone a psychological evaluation and no serious problems have been determined." There is competent evidence in the record to support this finding. The psychological evaluation showed that "[t]here is no indication that [respondent-mother] has a mental health disability that would result in the current situation: she does not appear to be psychotic or dissociating." The evaluation concluded:
[Respondent-mother] has depressive symptoms that will respond to mental health treatment. She will benefit from continuing in therapy/counseling to help her learn and strengthen non-medication ways to reduce depressive symptoms. If the symptoms do not decrease with treatment or if they increase, medication should be considered. . . . [Respondent-mother] will benefit from continuing to be involved in programs teaching child development, child care, and child management techniques and in programs dealing with child abuse prevention.
This evidence supports the trial court's finding that no serious problems were determined by the psychological evaluation. Respondent-father argues that the finding cannot be upheld, given the psychological evaluation's determination that
[u]ntil [respondent-mother] can accept that her baby was deliberately injured by an adult who was caring for him and can be more open and honest about what she knows concerning his injuries, the risks of the baby being injured again in her care are higher than they would be if these two facts did not exist.
Although this evidence may support a finding to the contrary, the trial court's finding that respondent-mother had no serious psychological problems is supported by some competent evidence. If supported by some competent evidence, the findings of fact are conclusive even if some evidence supports findings to the contrary. In re C.E.L., ___ N.C. App. at ___, 615 S.E.2d at 430. Accordingly, the assignment of error pertaining to this finding of fact is overruled.
Next, respondent-father assigns error to the trial court's conclusion that "the mother should have supervised visitation with the juvenile [pursuant to certain conditions.]" A trial court's conclusions of law are upheld when they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). In this case, the trial court made several specific findings about respondent-mother's parental fitness and progress: the trial court found that respondent-mother followed all of the recommendations of DSS and the GAL, obeyed all court orders, had no serious psychological problems, completed two sets of parenting classes, attended counseling regularly, and was employed. These findings support the trial court's conclusion that respondent-mother should have supervised visitation with K.J.H.
II.
Respondent-father also assigns as error the trial court's granting increased visitation to respondent-mother while criminal charges were pending against her for harming K.J.H.
"The purpose of the permanency planning hearing shall be to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C. Gen. Stat. § 7B-907(a) (2003). A trial court may place the juvenile in the custody of either parent. N.C. Gen. Stat. § 7B-907(c) (2003). A trial court may also order visitation. See In re J.S., 165 N.C. App. 509, 513, 598 S.E.2d 658, 661 (2004) (holding that at a trial court has the authority to modify any aspect of a permanency plan, including visitation). Although respondent-father disagrees with the trial court's decision to grant increased visitation to respondent-mother, he has failed to show that the trial court abused its discretion in doing so. "An abuse of discretion results when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (internal citation omitted). We find no abuse of discretion in the trial court's decision to grant increased visitation to respondent-mother.
The trial court did find as fact that criminal charges were pending against respondent-mother. However, the trial court also found that respondent-mother recanted the admission that resulted in criminal charges and that neither respondent-mother nor anyone else had been convicted of abusing K.J.H. Furthermore, as discussed above, the trial court made sufficient findings to support its conclusion of law that respondent-mother should have supervised visitation with K.J.H. The trial court also found that respondent-mother lived with the maternal grandparents and the maternal grandmother accompanied respondent-mother to her biweekly visitations with K.J.H. The trial court reviewed the DSS report, which stated that visits between respondent-mother and K.J.H. continued to go well and respondent-mother was appropriate with the K.J.H., who appeared to be bonding with respondent-mother. In light of the foregoing findings and evidence, we cannot say that the trial court's decision to grant increased, supervised visitation was manifestly unsupported by reason. Accordingly, we overrule this assignment of error.
III.
Finally, respondent-father assigns as error the trial court's decision to retain jurisdiction over the proceeding in ordering a permanency planning review on 14 October 2004. Respondent-father argues that it was "excessive overstepping" by the trial court in keeping the case open once the permanency plan was met and cites N.C. Gen. Stat. § 7B-907(c) in support of his contention. N.C. Gen. Stat. § 7B-907(c) provides in part, "If at any time custody is restored to a parent, . . . the court shall be relieved of the duty to conduct periodic judicial reviews of the placement." We cannot agree with respondent-father's interpretation of N.C. Gen. Stat. § 907(c) that the trial court must close a case when custody is restored to a parent. N.C. Gen. Stat. § 907(a) provides that a permanency planning hearing shall be held within twelve months after the initial order removing custody, with subsequent permanency planning hearings to be held at least every six months. N.C.G.S. § 7B-907(a) (emphasis added). The purpose of the subsequent permanency planning hearings is to "review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile." Id. Our Court has held that N.C. Gen. Stat. § 7B-907(a) "vests the trial court with the authority to modify its permanency plan for [a child] with respect to any aspect of that plan, including reunification or visitation." In re J.S., 165 N.C. App. at 513, 598 S.E.2d at 661. Furthermore, N.C. Gen. Stat. § 7B-201 provides that "[w]hen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." N.C. Gen. Stat. § 7B-201 (2003). In this case, the trial court did not terminate its jurisdiction over K.J.H. and its jurisdiction to review the permanency planning order continued. See In re T.R.P., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___. (2005) (holding that in juvenile matters, "[o]nce jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined"); cf. In re P.L.P., ___ N.C. App. ___, 618 S.E.2d 241 (2005) (jurisdiction ceased where trial court ordered that "this juvenile file is hereby closed"). Accordingly, this assignment of error is overruled.
Affirmed.
Judges McCULLOUGH and JACKSON concur.
Report per Rule 30(e).