Opinion
No. COA12–1011.
2013-03-19
In the Matter of S.S.
Deputy County Attorney Roger A. Askew for petitioner-appellee Wake County Human Services. Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-appellant mother.
Appeal by respondent-mother from order entered 14 May 2012 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 5 March 2013. Deputy County Attorney Roger A. Askew for petitioner-appellee Wake County Human Services. Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-appellant mother.
Deana K. Fleming for guardian ad litem.
BRYANT, Judge.
Where the trial court properly complied with section 7B–907(b) of the North Carolina General Statues and where there is competent evidence in the record to support the trial court's challenged finding of fact, we affirm the order of the trial court.
Facts and Procedural History
On 25 September 2009, Wake County Human Services (“WCHS”) filed a petition alleging that Sally was a neglected juvenile. WCHS was given nonsecure custody of Sally at the same time. The petition alleged that on 12 September 2009, respondent-mother had gasoline poured on her and was set on fire. She was subsequently hospitalized. Sally, who was seven months old at the time, was home during the incident, and her father moved her to the porch while he attempted to extinguish the flames. Although there were conflicting reports as to who caused the incident, the father was eventually arrested, pled guilty to arson and assault with a deadly weapon inflicting serious injury, and is currently serving a sentence of 50 to 70 months imprisonment.
Pseudonyms have been used throughout to protect the identity of the juveniles.
Sally's father is not a party to this appeal.
In an adjudication order entered on 3 December 2009, the trial court adjudicated Sally neglected based upon the consent of respondent-mother and the father. In addition to findings regarding the 12 September 2009 incident, the trial court found that both parents admitted to a history of domestic disputes and substance abuse, that marijuana was found in the home following the incident, that respondent-mother requested assistance with housing, and that respondent-mother was released from the hospital on 17 October 2009. In a disposition order, the trial court continued custody of Sally with WCHS and ordered respondent-mother to comply with her Out of Home Family Services Agreement (“case plan”).
Over the next year and a half, the trial court held two permanency planning hearings. During that time, respondent-mother gave birth to a second child, Sam, and had two failed trial placements. Additionally, Sally was moved from foster care to a relative placement with her paternal aunt.
Sam was also a subject of the juvenile proceedings, but is not a subject of the instant appeal. Therefore, our discussion is limited to Sally.
The case came on for a permanency planning hearing in February and March 2012. In an order entered on 14 May 2012, the trial court placed Sally in the custody of the paternal aunt, based on findings that the return of Sally to respondent-mother's home would be contrary to Sally's best interest, that Sally is doing well in her placement with her paternal aunt, and that reunification efforts would be futile or inconsistent with the child's safety and need for a safe home within a reasonable amount of time. The court further found that the paternal aunt is willing and able to continue providing care for Sally, is a fit and proper person to have custody, and has an appropriate understanding of the legal significance of acting as Sally's custodian. Respondent-mother timely appealed from the order pursuant to N.C. Gen.Stat. § 7B–1001(a)(4).
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Respondent-mother advances the following issues on appeal: whether the trial court erred (I) by failing to enter factual findings in compliance with section 7B–907(b) of the North Carolina General Statutes; (II) by entering finding of fact number nine; and (III) by concluding that it was in Sally's best interests to award custody to the paternal aunt and that reunification efforts with respondent-mother were “inconsistent with [Sally's] safety and need for a safe home within a reasonable time.”
I
In her first argument on appeal, respondent-mother contends that the trial court erred by failing to make factual findings required by N.C. Gen.Stat. § 7B–907(b). Pursuant to N.C. Gen.Stat. § 7B–907(a) (2011), “[i]n any case where custody is removed from a parent, ... the judge shall conduct ... a permanency planning hearing within 12 months after the date of the initial order removing custody” and at least every six months thereafter. “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.” Id. The statute further provides that “[a]t 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.
N.C. Gen.Stat. § 7B–907(b) (2011). “Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and [whether] 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). “If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.” Id.
The trial court made the following findings of fact, in pertinent part, in its permanency planning order:
2. That [WCHS] has made reasonable efforts under the circumstances aimed at returning the children promptly to a safe, permanent home....
3. That return of the children to their home would be contrary to the children's best interests.
...
7. That [Sally] is doing well in her placement with her paternal aunt [ ] and the placement is stable and appropriate.
8. That it is in the best interests of the children that this Court adopt as its Order the plan proposed by [WCHS] to achieve a safe, permanent home for the children within a reasonable period of time, to wit:
— to return home is not in the children's best interests because [ ] none of the parents [have] demonstrated that [they] can provide proper full-time care for the children.
— to pursue transition of legal custody of [Sally] to her relative caregiver, [paternal aunt], with the parents retaining visitation rights.
....
— it is not in the best interests of the children to file a TPR because the plan for both children is custody with a relative and/or appropriate caregiver[ ].
9. ... [R]eunification efforts would be futile or inconsistent with the children's safety and need for a safe home within a reasonable time[.]
...
11. That [Sally] continues to reside with her paternal aunt [ ]. She is doing well in this home and [the paternal aunt] is willing and able to continue providing the care and supervision that the child needs indefinitely. She is financially able to provide for the child and understands the duties and responsibilities she will have as [Sally]'s custodian.
12. That the permanent plan of custody with her paternal aunt is in [Sally]'s best interests.
...
18. That [the paternal aunt] is a fit and proper person for custody of [Sally] and has an appropriate understanding of the legal significance of acting as [Sally]'s legal custodian.
Respondent-mother argues that the trial court's findings of fact fail to comply with N.C. Gen.Stat. § 7B–907 (b)(1) because the trial court did not make a finding as to whether it was possible for Sally to be returned home within six months. Both WCHS and the guardian ad litem (“GAL”) acknowledge that the trial court failed to make such a finding. They, however, argue that by ceasing reunification efforts and ordering a permanent plan of custody, the court implicitly found that return of Sally to respondent-mother was not possible within the next six months. As further explained, we agree with DSS and the GAL.
“Section 7B–907(b) requires a trial court to make written findings on all of the relevant criteria as provided in the statute. When a trial court is required to make findings of fact, it must find the facts specially.” In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003) (internal citations and quotations omitted). Nonetheless, this Court has held that a permanency planning order need not “specifically identify [ ] findings as being made pursuant to any of the § 7B–907(b) factors,” “as long as the trial court makes findings of fact on the relevant § 7B–907(b) factors and does not simply recite allegations, but rather through processes of logical reasoning from the evidentiary facts find[s] the ultimate facts essential to support the conclusions of law.” J.C.S., 164 N.C.App. at 106, 595 S.E.2d at 161 (internal quotations omitted). Therefore, a “formal listing” of the § 7B–907(b)(1)–(6) factors is not required. Id.
After reviewing the order as a whole, we are satisfied that the trial court implicitly made a finding that it was not possible for Sally to be returned home immediately or within the next six months. Despite lacking the “six month” language, the order states that it was not in Sally's best interest to return home and thus, partially addressed N.C. Gen.Stat. § 7B907 (b)(1). Finding of fact numbers 2, 7, 8, 11, 12, and 18 address factors (2) through (5) in Section 7B–907(b). Given the wording of subsection (b), the fact that the trial court made findings which address factors (2) through (5) implies that the trial court determined that Sally could not be returned home within the next six months. Furthermore, the trial court concluded that reunification efforts with respondent-mother would be inconsistent with the juvenile's safety and need for a safe home within a reasonable time—a conclusion that is inconsistent with a finding that Sally could be returned home to respondent-mother within the next six months.
Respondent-mother acknowledges that in certain cases, such as in J.C.S., a trial court's findings pursuant to Section 7B–907(b) may be implicit. See J.C.S., 164 N.C.App. at 106, 595 S.E.2d at 161 (holding that by changing the permanent plan to adoption, the trial court implicitly determined it was not in the children's best interests to return home within the next six months). However, she submits that in the instant case the trial court changed the permanent plan to custody with a relative, which, unlike adoption, is not permanent. She therefore argues that this case is not controlled by J.C.S., but is instead controlled by In re J.V., 198 N.C.App. 108, 679 S.E.2d 843 (2009). In J.V., this Court held that (1) the permanency planning order at issue failed to comply with Section 7B–907(b) because it lacked a finding as to whether the children could be returned home within the next six months; and (2) nothing in the trial court's findings addressed the issue by implication. Id. at 118, 679 S.E.2d at 849.
We find the instant case distinguishable. Here, unlike J.V., the trial court found that reunification efforts with respondent-mother would be futile or inconsistent with the child's safety and need for a safe home within a reasonable time. We hold that by effectively ceasing reunification efforts with respondent-mother and ordering a permanent plan of custody, the trial court implicitly found that return of Sally to respondent-mother's home was not possible within the next six months. Thus, we conclude that the trial court properly complied with N.C. Gen.Stat. § 7B–907(b).
II
In her second argument on appeal, respondent-mother challenges finding of fact number nine. Finding of fact number nine states, in pertinent part, the following:
That the following facts demonstrate that reunification efforts would be futile or inconsistent with the children's safety and need for a safe home within a reasonable time:
a. The mother has not completed the Passage Home program and has not maintained stable housing.
b. The mother's employment has been unstable and she is currently working part-time and at night. She is not earning sufficient income to support herself and her children.
c. The mother has incurred recent criminal charges which are still outstanding and did so with the possibility that she could be in violation of her probation provisions.
d. The mother missed 6 therapy appointments between July 6, 2011, and February 2012.
e. The mother has been inconsistent with her participation in individual therapy.
f. The mother has not complied with the domestic violence assessment and has been inconsistent with treatment.
g. The mother has continued to make life choices which have negatively affected her ability to parent the children.
Respondent-mother broadly argues that the trial court did not make any findings with regard to the progress she had made and that most of the findings are unsupported or incomplete. Specifically, however, she attempts to reargue the evidence, points to evidence that is more favorable to her, and attempts to question the basis for her required participation in certain programs. She also argues that finding of fact number 9(g) is vague.
It is the duty of the trial judge to determine the weight and credibility to be given to evidence. In re Hughes, 74 N.C.App. 751, 759, 330 S.E.2d 213, 218 (1985). We therefore decline to address the evidentiary support for each finding individually. After carefully reviewing the record, we conclude that subparts (a) through (f) of finding of fact number nine are supported by the testimony of the social worker, the testimony of the GAL, respondent-mother's own testimony, and other evidence contained in the record on appeal. The evidence establishes that respondent-mother was under a court order to comply with her case plan but fell short of doing so. These specific factual findings, in turn, support subpart (g). Accordingly, we conclude that finding of fact number nine is supported by competent evidence.
III
Respondent-mother also purports to challenge the trial court's conclusions that it was in Sally's best interest that custody be awarded to the paternal aunt and that reunification efforts would be inconsistent with Sally's safety and need for a safe home within a reasonable time. She contends that these conclusions of law are not supported by the evidence. However, respondent-mother has not included any argument for this contention. Therefore, we deem this argument abandoned. N.C. R.App. P. 28(b)(6) (2013) (“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.”).
Affirmed. Judges CALABRIA and GEER concur.
Report per Rule 30(e).