Opinion
No. COA13–84.
2013-06-18
In the matter of K.P.
Jennifer M. Jones, for petitioner-appellee Wake County Human Services. David A. Perez, for respondent-appellant mother.
Appeal by Respondent from order entered 2 November 2012 by Judge Margaret P. Eagles in Wake County District Court. Heard in the Court of Appeals 9 May 2013. Jennifer M. Jones, for petitioner-appellee Wake County Human Services. David A. Perez, for respondent-appellant mother.
Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
DILLON, Judge.
Ashley P. (Respondent) appeals from a permanency planning order placing K.P. into the guardianship of his paternal grandfather. We affirm in part, and reverse and remand in part.
A pseudonym is used for ease of reading and to protect the juvenile's privacy.
The evidence of record tends to show the following: Respondent, the mother of K.P., has struggled with drug addiction for nine years. On 18 February 2011, Wake County Human Services (WCHS) filed a juvenile petition alleging that K.P. was neglected. An order for non-secure custody was entered the same day, placing K.P. into the custody of WCHS due to Respondent's drug abuse issues and domestic violence allegations involving Respondent and K.P.'s father. On 18 May 2011, Respondent entered into a consent order, which found K.P. to be a neglected juvenile. The consent order was filed on 25 May 2011. In September 2011, K.P. was placed with his paternal grandfather. On 26 September 2011, following a permanency planning hearing, the trial court entered an order ceasing reunification efforts. Respondent admittedly had developed a pattern of entering substance abuse treatment programs but thereafter relapsing into drug abuse.
In January 2012, Respondent transferred to Kelly House, a resident substance abuse treatment facility in Wilmington, for a year-long program. While at Kelly House, Respondent gave birth to another child, which she was allowed to keep with her. However, K.P. could not be placed with her at Kelly House, as the program did not allow children over six months old.
On 5 March 2012, the trial court entered a juvenile order noting that there was no evidence the mother had made substantial progress in her case plan and that the permanent plan was guardianship. However, in April 2012, Respondent began to have monitored visitation with K.P. Ann Slaughter of the New Hanover County Department of Social Services (NHDSS) monitored the visitations. Ms. Slaughter expressed no concerns about Respondent having unsupervised contact with K.P. On 30 July 2012, the trial court entered a juvenile order stating that Respondent was satisfied with K.P.'s placement with his paternal grandfather.
Debbie Reynolds, Respondent's therapist, contacted Grace Court, another substance abuse treatment residential program, which would have allowed for the placement of K.P. with Respondent. Ms. Reynolds testified at the placement review and permanency planning hearing held on 11 and 12 September 2012 that Grace Court possibly would have an opening that would allow for Respondent's residence there in December 2012 or January 2013.
On 2 November 2012, the trial court entered a juvenile order placing K.P. into the guardianship of his paternal grandfather. In the 2 November 2012 order, the trial court made a number of findings of fact. Based on the findings of fact contained in the order, the trial court concluded that it was in K.P.'s best interest to assign his guardianship to the paternal grandfather. From this order, Respondent appeals.
I: Standard of Review
“Appellate review of a 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 R.A.H., 182 N.C.App. 52, 57–58, 641 S.E.2d 404, 408 (2007) (citation and quotation marks omitted). “If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.” In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004) (citation omitted). Unchallenged findings of fact “are presumed to be supported by competent evidence and are binding on appeal.” In re I.T.P–L., 194 N.C.App. 453, 462, 670 S.E.2d 282, 287 (2008), disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009).
“We review a trial court's determination as to the best interest of the child for an abuse of discretion.” In re D.S.A., 181 N.C.App. 715, 720, 641 S.E.2d 18, 22 (2007) (citation and quotation marks omitted).
II: N.C. Gen.Stat. § 7B–907(b)
In Respondent's first argument, she contends the trial court erred by entering a permanency planning order without making the findings of fact required by N.C. Gen.Stat. § 7B–907(b) (2011). Specifically, Respondent contends that “the trial court made no finding as to whether it was possible for [K.P.] to be returned home within six months.” We find this argument without merit.
“The purpose of the permanency planning hearing [is] 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) (2011). “Pursuant to N.C.G.S. § 7B–907(a), in determining whether it is possible for the children to return home within six months of the permanency planning hearing, the court must look at the progress the parents have made in eliminating the conditions that lead to the removal of the children.” In re T.K., 171 N.C.App. 35, 39, 613 S.E.2d 739, 741,aff'd,360 N.C. 163, 622 S.E.2d 494 (2005) (citing N.C. Gen.Stat. § 7B–907(a)). “Further, if the court determines it is not possible for the juvenile to return home within that time, the court must then make findings as to why it is not in the juvenile's best interest to return home.” Id. (citing N.C. Gen.Stat. § 7B–907(a)). “In determining the best interests of the child, the trial court should consider the parents' right to maintain their family unit, but if the interest of the parent conflicts with the welfare of the child, the latter should prevail.” Id. (quoting In re Parker, 90 N.C.App. 423, 431, 368 S.E.2d 879, 884 (1988)).
N.C. Gen.Stat. § 7B–907(b), requires a trial court to make written findings on all of the relevant criteria as provided in the statute. “The trial court may not simply recite allegations, but must through processes of logical reasoning from the evidentiary facts find the ultimate facts essential to support the conclusions of law.” In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003) (citation and quotation marks omitted). “The resulting findings of fact must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.” In re J.S., 165 N.C.App. 509, 511, 598 S.E.2d 658, 660 (2004) (citation and quotation marks omitted). However, “[t]his Court previously has not required ... a strict interpretation of section 7B907 (b)(1) [;][i]n fact, we have not required trial courts to specifically identify the factors set forth in section 7B–907(b), provided that the record demonstrates that the factors were taken into account.” In re T.R.M., 188 N.C.App. 773, 779, 656 S.E.2d 626, 630 (2008).
N.C. Gen.Stat. § 7B–907(b) requires the following:
... At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:
(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
(6) Any other criteria the court deems necessary.
Id.
In this case, Respondent contends the trial court erred by failing to make findings of fact regarding whether it was possible for K.P. to be returned home within six months. After our review of the record in this case, we conclude that even though the trial court did not “specifically identify the factors set forth in section 7B–907(b),” the record demonstrates that the factors were taken into account. See In re T.R.M., 188 N.C.App. at 779, 656 S.E.2d at 630;see alsoIn re J.C.S., 164 N.C.App. 96, 595 S.E.2d 155 (2004) (stating that “[w]hile the permanency planning order does not contain a formal listing of the § 7B–907 (b)(1)-(6) factors, expressly denominated as such, among its 27 comprehensive findings of fact, we conclude the trial court nevertheless did consider and make written findings regarding the relevant § 7B–907(b) factors”). Specifically, among other findings, the trial court found that Respondent “continues to have unstable housing,” that “her income is unknown,” and that Respondent does not have a plan for housing if she is not accepted into the Grace Court program, a program for which she had not yet applied. Because the record shows that the trial court took into account the factors in section 7B–907(b), we conclude Respondent's argument pertaining to N .C. Gen.Stat. § 7B–907(b) is without merit.
II: N.C. Gen.Stat. § 7B–906(b)
In Respondent's second argument, she contends the trial court erred by waiving further review hearings in this matter without making the findings of fact required by N.C. Gen.Stat. § 7B–906(b) (2011). We agree and remand for findings of fact in compliance with the mandate of N.C. Gen.Stat. § 7B–906(b).
“The general rule is that following a permanency planning hearing, ‘[s]ubsequent permanency planning hearings shall be held at least every six months thereafter ... 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.’ “ In re R.A.H., 182 N.C.App. 52, 61, 641 S.E.2d 404, 410 (2007) (quoting N.C. Gen.Stat. § 7B–907(a)). “These hearings may be combined with review hearings under N.C. Gen.Stat. § 7B–906[;] ... [moreover][,][t] he trial court may dispense with these hearings under certain circumstances.” Id. (citation omitted). N.C. Gen.Stat. § 7B–906(b) requires, in relevant part, as follows:
Notwithstanding other provisions of this Article, the court may waive the holding of review hearings required by subsection (a) of this section ... if the court finds by clear, cogent, and convincing evidence that:
...
(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;
Id.
In the case sub judice, Respondent contends the trial court failed to make findings of fact addressing N.C. Gen.Stat. § 7B906 (b)(3) and (4). We agree. The trial court made no finding of fact that neither K.P.'s best interests nor the rights of Respondent require that review hearings be held every six months, or that 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. Without making the requisite findings, the trial court erred by dispensing with six-month permanency planning hearings. Because the trial court failed to find the criteria required by N.C. Gen.Stat. § 7B–906(b), we reverse on this issue and remand with instructions to make the findings of fact outlined in the statute. See In re R.A.H., 182 N.C.App. at 62, 641 S.E.2d at 410;see also In re L.B., 184 N.C.App. 442, 449, 646 S.E.2d 411, 415 (2007).
III: Best Interest
In Respondent's third argument, she contends the trial court erred by concluding that the best interest of K.P. would be served by creating a guardianship with K.P.'s paternal grandfather. We disagree.
In the case sub judice, Respondent challenges four of the findings of fact made by the trial court, contending that they are not supported by competent and credible evidence. Respondent also specifically argues that the trial court's conclusion that it is in the best interest of K.P. to give “guardianship to the paternal grandfather” is “simply not at all supported by any proper findings of fact by the trial court.”
Respondent specifically challenges findings of fact number 4, number 14, number 17, and number 26, which state the following:
4. That it is in the best interests of the child that this Court adopt as its Order the plan proposed by Wake County Human Services to achieve a safe, permanent home for the child within a reasonable period of time, to wit:—to return home continues not to be in the child's best interests because the parents have not made sufficient progress in changing the conditions that caused the child to be removed from their care.
....
14. That [Respondent] has not obtained stable housing. [Respondent] is residing in the Kelly House residential treatment program, and [K.P.] could not reside with [Respondent] in that program. [Respondent] has not secured housing for herself or [K.P.] upon completing the program. [Respondent] intends to apply for admission to Grace Court. Grace Court is a residential treatment facility that would permit [Respondent], her infant child, and [K.P.] to reside together if accepted into the program. Ms. Reynolds testified that Grace Court is a year[-]long program that focuses on providing another level of care for treatment of women with substance abuse issues. The program focuses on gender specific issues, and helps residents to become self-sufficient and maintain sobriety. Ms. Reynolds stated that [Respondent] could not parent on her own without continued support.
....
17. That Ann Slaughter, social worker from New Hanover Department of Social Services, supervised visits between [Respondent] and [K.P.] on behalf of WCHS from May 2012 until September 2012. Ms. Slaughter transported [K.P.] to the Kelly House for visitation. Ms. Slaughter stated she supervised eight visits, and that [Respondent] cancelled the July 9, 2012 visitation because she was giving birth to her infant child, who now resides with her at Kelly House. Ms. Slaughter stated that [Respondent] was appropriate during visitation, and that she felt comfortable with [Respondent] having unsupervised visitation with [K.P.] in the community. Ms. Slaughter was unaware that [K.P.] has a food allergy to dairy products, until the date of this hearing. [In] August 2012, [Respondent], who was aware of the allergy, fed [K.P.] pizza with cheese. Ms. Slaughter indicated that she was not aware of [K.P .] having any food allergies at the time of the visits, but otherwise had no comment about the incident.
....
26. That [Respondent] continues to have unstable housing [Respondent] has begun to work, but she is employed 20 hours a week, and her income is unknown.
After our review of the record in this case, we believe the four findings of fact challenged by Respondent are supported by competent evidence, and we believe the findings of fact in the trial court's order are sufficient to support the trial court's conclusion that the best interest of K.P. is guardianship to the paternal grandfather. The evidence in this case shows that Respondent was largely uninvolved in K.P.'s life until she began visitations approximately five months prior to the September 2012 permanency planning hearing, did not have stable housing or income to provide for K.P.'s welfare, and had been in and out of treatment facilities without finishing a program before relapsing into drug use. The evidence also shows that K.P. had been in a stable placement with his paternal grandfather in Wilmington, that K.P. is thriving in this placement, and that his needs are being met; moreover, K.P. is bonded to his paternal grandfather, and the grandfather has stable employment, in a position in which he has been working for nine years, and housing. K.P. is provided his own room in his paternal grandfather's house. We believe that based on the evidence in this case, which is competent to support the challenged findings of fact, the trial court did not abuse its discretion in determining that it was in K.P.'s best interest to create a guardianship with K.P.'s paternal grandfather. See In re T.K., 171 N.C.App. 35, 38, 613 S.E.2d 739, 741,aff'd,360 N.C. 163, 622 S.E.2d 494 (2005) (stating that “the court considered that some progress had been made by respondent-mother and father toward correcting the conditions which lead to removal of the children; however that progress was not nearly enough”).
During the first year of K.P.'s life, Respondent moved many times in and out of residential treatment facilities or homeless shelters with K.P. and was incarcerated. At the time of the hearing, Respondent was residing in the Kelly House residential treatment program, in which K.P. could not reside, as the facility would not allow children over six months old. If Respondent is not accepted into the Grace Court program, Respondent has no alternative plan to provide stable housing for herself or K.P. Respondent has three other children who were removed from her care due to substance abuse issues.
Testimony is conflicting regarding Respondent's income and the incident involving K.P.'s food allergy; however, it is the trial judge's duty to pass upon the credibility of the witnesses and resolve any conflicts in the evidence. In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted).
AFFIRMED, in part; REVERSED and REMANDED, in part. Judge GEER and Judge ELMORE concur.
Report per Rule 30(e).