Opinion
No. COA11–1096.
2012-04-3
In the Matter of S.C. S.C.
Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Kathleen Arundell, for petitioner-appellee. Robert W. Ewing for respondent-appellant father.
Appeal by respondents from order entered 20 June 2011 by Judge Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 20 February 2012. Mecklenburg County Department of Social Services, Youth and Family Services, by Senior Associate Attorney Kathleen Arundell, for petitioner-appellee. Robert W. Ewing for respondent-appellant father.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant mother.
North Carolina Administrative Office of the Courts, by Appellate Counsel Pamela Newell, for guardian ad litem.
GEER, Judge.
Respondent parents appeal from a permanency planning hearing order and guardianship order ceasing reunification efforts; appointing the paternal grandmother guardian of the two minor children, S.C. (“Steven”) and S.C. (“Sarah”); and adopting a visitation plan for the parents. We disagree with respondent mother's contention that the trial court improperly based its decision on respondent mother's subjective belief that she was not a victim of domestic violence and with respondent father's contention that the trial court failed to verify that the appointed guardian had adequate financial resources. We agree, however, that the trial court (1) did not make adequate findings of fact regarding waiver of further review hearings and (2) did not order an appropriate visitation plan. We, therefore, affirm in part and reverse and remand in part.
The pseudonyms “Steven” and “Sarah” are used throughout this opinion to protect the minors' privacy and for ease of reading.
Facts
In 2001, respondent mother's two older children were adjudicated abused, neglected, and dependent. Respondent father, who was then respondent mother's boyfriend (but not the father of the children), was believed to be the perpetrator of the abuse. Respondents entered into case plans, but respondent father did not work on his plan, and Mecklenburg County Youth and Family Services (“YFS”) advised respondent mother to separate from him. Respondent mother did not do so and relinquished her rights to her two older children on 25 April 2002.
Steven and Sarah's maternal grandmother and a family friend witnessed an argument between respondent parents on 10 August 2009. During the argument, respondent father grabbed respondent mother by the arm, leaving a bruise; he pinned her down on the bed with a hand on her throat; respondent mother told the maternal grandmother and friend that respondent father had punched her in the head; and respondent mother reported that respondent father had pulled a gun on her. The maternal grandmother left with the children.
On 11 August 2009, YFS received a report that Steven was screaming that his father had a gun on his mother. After YFS began investigating, respondent mother signed a safety plan agreeing, among other things, to allow the children to remain with their maternal grandmother. Almost immediately, however, respondents had moved the children to the home of the paternal grandparents. YFS scheduled a Child and Family Team meeting for 3 September 2009. Respondent father called YFS on 2 September 2009, indicating that neither he nor respondent mother would attend the scheduled meeting and that they planned to remove the children from the paternal grandparents' home as soon as respondents moved into a new apartment.
On 3 September 2009, YFS filed a juvenile petition alleging that Steven and Sarah were neglected and dependent based upon respondents' history of domestic violence. The trial court granted YFS custody of Steven and Sarah the same day. The children were adjudicated neglected and dependent in an order entered on 3 December 2009.
At disposition, respondents were ordered to comply with a Family Service Agreement. Respondents were to complete parenting classes, secure safe and appropriate housing, maintain contact with YFS, and seek employment. In addition, respondent mother was to secure domestic violence counseling through the Women's Commission and respondent father was to complete the “New Options for Violent Actions” (NOVA) program. Respondent father was also to obtain substance abuse treatment.
The trial court entered review orders on 16 February 2010 and 30 June 2010. On 19 August 2010, there was a permanency planning and review hearing. The trial court established a permanent plan of reunification with a concurrent plan of guardianship. Subsequent orders maintained this concurrent plan.
On 17 May 2011, the trial court conducted another permanency planning review hearing. The court entered its order on 20 June 2011, ceasing reunification efforts and appointing the paternal grandmother guardian for Steven and Sarah. Respondents timely appealed to this Court from that order.
Discussion
We must first address whether this Court has jurisdiction over respondent mother's appeal. Rule 3.1(a) of the North Carolina Rules of Appellate Procedure provides with respect to notices of appeal in cases appealable under N.C. Gen.Stat. § 7B–1001 (2011), such as this one, that “[i]f the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal.” In this case, respondent mother signed the notice of appeal, but trial counsel did not.
Rule 3.1 is “jurisdictional, and if not complied with, the appeal must be dismissed.” In re L.B., 187 N.C.App. 326, 332, 653 S.E.2d 240, 244 (2007), aff'd per curiam, 362 N.C. 507, 666 S.E.2d 751 (2008). Respondent mother has, however, filed a petition for writ of certiorari. We believe that under the circumstances, it is appropriate for us to exercise our discretion to grant that petition and hear respondent mother's appeal. See In re I.T.P–L., 194 N.C.App. 453, 460, 670 S.E.2d 282, 285 (2008) (allowing a petition for writ of certiorari “to permit consideration of their appeals on the merits so as to avoid penalizing Respondents for their attorneys' errors”).
Our 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). We review the disposition for abuse of discretion. In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007). 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).
Respondent mother first contends that the trial court improperly based its order ceasing reunification efforts and ordering guardianship on respondent mother's subjective belief that she was not a victim of domestic violence. We disagree.
If a child is not returned home at the conclusion of the permanency planning hearing, the court is required to 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.
N.C. Gen.Stat. § 7B–907(b) (2011). “The court may consider any evidence, including hearsay evidence as defined in G.S. 8C–1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” Id.
In this case, the trial court found:
It is not possible for the juvenile[s] to be returned home immediately or within the next six months nor is it in the juvenile[s'] best interest to return home. The court notes that the mother and father are participating in couple's therapy, the mother reports employment at Carowinds and they have maintained housing. The court also notes the juveniles have been in custody for a year and a half. The court states the issue that led the juveniles into custody, primarily was domestic violence. The court states there were other issues (substance abuse and stability) but the major issue is domestic violence. Court says there has to be an acknowledgment by the parents regarding the domestic violence and the court is unsure why the parents cannot get to this point. The court says there has been more going on than the parents' acknowledged raised voices and door slamming. The court says as of today he has not heard that acknowledgment. The court also states the PCE recommendations and FSA is not a checklist. There must be some demonstrated understanding of what the domestic issues were and how it impacted the juveniles. Court also states the parents have not been able to get past the mountain of evidence of domestic violence from the children's oral reports, police reports, testimony from disinterested relative and family friend (at Adjudication hearing).
Respondent mother contends that the finding that she had not acknowledged domestic violence is not supported by the record and points to parts of her own testimony about what she learned in her domestic violence classes. At other points in her testimony, however, respondent mother continued to deny that there were any physical altercations with respondent father. She maintained that there was only arguing, yelling, screaming, and slamming doors. Given the contrary evidence showing that physical violence was indeed an issue for respondents, the trial court was entitled to find respondent mother had not yet acknowledged the extent of the domestic violence.
Respondent mother also contends the trial court did not make any finding establishing a nexus between any failure to acknowledge the domestic violence and the children's best interests. We note that “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 [sic] to the removal of the children.” In re T.K., D.K., T.K., & J.K., 171 N.C.App. 35, 39, 613 S.E.2d 739, 741,aff'd per curiam, 360 N.C. 163, 622 S.E.2d 494 (2005).
In this case, Steven and Sarah were removed due to domestic violence. Respondent mother's parenting capacity evaluation stated that “[i]n order for [respondent mother] to be able to fully meet the psychological, developmental, and safety needs of the children, there must be some admission or concern regarding the current state of the home environment.” The trial court could reasonably decide that respondent mother cannot make progress on eliminating a condition she does not believe exists. Therefore, respondent mother's lack of acknowledgment impacts the children's best interests, and the trial court did not err in relying on respondent mother's failure to acknowledge the domestic violence when determining the children's best interests.
Respondent father challenges the guardianship order on the grounds that the trial court failed to verify that the paternal grandmother had adequate resources to care for the children. He further argues that because of this lack of inquiry, the following finding is not supported by evidence:
[The paternal grandmother] is appropriate and willing to care for [Steven] and [Sarah]. The juveniles are in a stable home, being cared for and their needs are being met. [The paternal grandmother] informs the court she would like to be the juveniles' Guardian and is willing and able to meet the juveniles' needs including their financial needs.
The Juvenile Code provides that when placing a juvenile in the custody of a person other than a parent, “the court shall verify that the person receiving custody ... understands the legal significance of the placement ... and will have adequate resources to care appropriately for the juvenile.” N.C. Gen.Stat. § 7B–907(f). The court is not, however, required to “make any specific findings in order to make the verification.” In re J.E., B.E., 182 N.C.App. 612, 617, 643 S.E.2d 70, 73 (2007).
We conclude the trial court made the verification required by the statute. The trial court inquired of the paternal grandmother whether she understood she would be responsible for Steven's and Sarah's well-being until they reached the age of 18. The trial court asked the paternal grandmother if she understood that that meant she would be responsible for their medical, physical, and emotional well-being, as well as their educational needs. The trial court further asked if the paternal grandmother understood that she would be required to make sure that Steven and Sarah had food, clothing, shelter, and a safe home. The paternal grandmother answered in the affirmative.
Implicit in accepting responsibility to meet these fundamental needs is an acknowledgment that one has the financial means to do so. Further, the trial court determined that the paternal grandmother had been able to provide appropriate care, including financial support, for the children for over a year. We hold, based on the record, that the trial court adequately verified that the paternal grandmother had adequate resources to care for Steven and Sarah, and that finding was supported by competent evidence even though respondent father may have identified conflicting evidence.
Both respondent mother and respondent father challenge the adequacy of the trial court's findings under N.C. Gen.Stat. § 7B–906(b) (2011) regarding review hearings. The court may waive the holding of review hearings under N.C. Gen.Stat. § 7B–906(b) if the court 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.
“[T]he trial court must make written findings of fact satisfying each of the enumerated criteria in section 7B–906(b).” In re L.B ., 184 N.C.App. 442, 447, 646 S.E.2d 411, 414 (2007). “Failure to find all of these criteria constitutes reversible error.” Id., 646 S.E.2d at 413. Here, respondents do not dispute that the trial court adequately addressed N.C. Gen.Stat. §§ 7B–906 (b)(1), (b)(2), and (b)(5).
Respondent mother contends that the trial court did not adequately address N.C. Gen.Stat. § 7B–906(b)(4). However, during the hearing, the trial judge, when questioning the paternal grandmother, explained:
THE COURT: Do you understand that if you wanted at any time for that guardianship order to be changed, or [respondent mother] or [respondent father] wanted that order to be changed, you would file a motion or they would file a motion to come back to court to change that order?
In addition, when setting out his oral findings and conclusions of law at the hearing, the trial court reiterated: “[the paternal grandmother] can file a motion at any time, as can either parent, to come back to this court if that order needs to be changed.” The order itself added:
If any of the parents want the child/ren placed in his/her home, wants the guardianship dissolved or visitation changed, then he/she shall file a Motion in the Cause with the Mecklenburg County District Court, Juvenile Division requesting that the Court change the placement, change visitation or dissolve the guardianship of the child.
Although respondent mother points to In re L.B. as suggesting that the trial court's inquiry was inadequate, the trial court in In re L.B. made no mention at all during the hearing about parties being able to file future motions. 184 N.C.App. at 449, 646 S.E.2d at 415. Here, based on the trial judge's explanations at trial and the order, we hold that the court adequately addressed N.C. Gen.Stat. § 7B–906(b)(4), although we note that the better practice would be to specifically address the parents as well as the guardian with language that more precisely tracks that of the statute.
As for N.C. Gen.Stat. § 7B–906 (b)(3)—requiring a finding that neither the children's best interests nor the rights of any party require that review hearings be held every six months—we agree with respondents that the trial court failed to make the necessary finding. While the order contains numerous findings regarding the best interests of the children, it contains no finding related to the review hearings.
The decretal portion of the order simply states in pertinent part: “The juvenile has been in the Guardian['s] ... care for a year. Therefore, no further reviews are necessary in this matter.” Far from addressing the children's best interests or the rights of the parties, this decree appears to erroneously assume that waiver of review hearings is automatic once the child has been in a placement for a year. Consequently, we must remand for proper findings of fact under N.C. Gen.Stat. § 7B906 (b)(3).
Finally, respondent father contends that the trial court's visitation plan improperly delegated to the guardian authority to decide whether visitation should occur. N.C. Gen.Stat. § 7B–905(c) (2011) provides that “[a] ny dispositional order under which a juvenile is removed from the custody of a parent. shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety.” N.C. Gen.Stat. § 7B–906(c)(6) requires with respect to review hearings that the trial court consider and make written findings, if relevant, regarding “[a]n appropriate visitation plan.” This Court has held that “[a]n appropriate visitation plan must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised.” In re E.C., 174 N.C.App. 517, 523, 621 S.E.2d 647, 652 (2005).
Here, the trial court's order mandates: “Visits between the father, mother and the juveniles shall occur pursuant to the court adopted visitation plan attached and incorporated herein by reference.” The adopted visitation plan provides a detailed plan containing the specifics required by In re E.C. However, the plan also includes the following provision: “If the paternal grandmother or the children's therapist determines that the visits are having adverse effect on [the children], the paternal grandmother can stop the visits with either parent.”
In In re L.B., 181 N.C.App. 174, 192, 639 S.E.2d 23, 32 (2007), this Court vacated a visitation order which ordered that the visitation “ ‘shall be in the discretion of the custodians, but shall not be unreasonably prevented.’ “ This Court reasoned:
In In re Stancil, 10 N.C.App. 545, 552, 179 S.E.2d 844, 849 (1971), this Court held that “when visitation rights are awarded, it is the exercise of a judicial function. We do not think that the exercise of this judicial function may be properly delegated by the court to the custodian of the child.” The rationale underlying this decision is that when the discretion to provide visitation is granted to the custodian of a child, it may “result in a complete denial of the right[.]” Id. Based on the direction provided by this Court in Stancil, we hold that the trial court erred by leaving visitation within the discretion of the [custodians].
Id.
Here, while the court did establish the time, place, and conditions under which visitation rights could be exercised, it still gave the custodian—the paternal grandmother—discretion to deny visitation. Neither the guardian ad litem nor YFS have cited any cases upholding a visitation plan that granted the guardian discretion to stop visitation. We, therefore, reverse the visitation portion of the order and remand for entry of a visitation plan consistent with In re L.B. and In re Stancil.
Affirmed in part; reversed and remanded in part. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).