Opinion
No. 07-308.
Filed August 21, 2007.
Mecklenburg County No. 05 JA 379.
Appeal by Respondent from order entered 23 January 2007 by Judge Hugh B. Lewis in District Court, Mecklenburg County. Heard in the Court of Appeals 30 July 2007.
No brief filed for Petitioner-Appellee Mecklenburg County Department of Social Services. Richard Croutharmel for Respondent-Appellant.
Y.G., a minor child, is the biological daughter of D.G. (Respondent-Father), and T.C., who is not a party to this appeal. The Mecklenburg County Department of Social Services (DSS) filed a juvenile petition on 15 April 2005 alleging that Y.G. was a neglected and dependent juvenile due to lack of proper supervision and care, substance abuse by the parents, and domestic violence between the parents. The trial court ordered Y.G. to be placed in the non-secure custody of DSS that same day. In two successive orders, the trial court continued Y.G. in the non-secure custody of DSS, pending adjudication.
Two of Y.G.'s half-siblings, M.C. and R.C., were also involved in these proceedings. M.C. and R.C. have a different biological father than Y.G. and therefore are not the subject of this appeal.
The trial court adjudicated Y.G. neglected and dependent on 23 August 2005 and ordered Y.G. to remain in DSS custody with a plan of reunification. The trial court entered a permanency planning hearing order on 12 January 2006 that ceased reunification efforts between Y.G. and both parents. The trial court ordered that the permanent plan for Y.G. be guardianship or custody with a court-approved caretaker. DSS filed a memorandum on 31 March 2006 regarding a change in placement for Y.G. The memorandum stated that Y.G. had moved to the home of her grandparents, J.B. and C.B. (the maternal grandparents), on 31 March 2006. In a permanency planning hearing order and review hearing order entered 2 May 2006, the trial court changed the permanent plan to adoption. The trial court further ordered that Y.G. remain in the legal custody of DSS "in the appropriate placement." The trial court preserved the permanent plan of adoption in an order entered 12 July 2006, and ordered Y.G. to remain in the legal custody of DSS "with placement with/in current placement[.]"
DSS filed a petition to terminate both parents' rights as to Y.G. on 13 September 2006. At a review hearing held on 17 January 2007, DSS orally requested that the permanent plan be changed from adoption to guardianship, effectively withdrawing the petition for termination of parental rights. DSS sought to place the guardianship of Y.G. with the maternal grandparents, with whom Y.G. had been residing since 31 March 2006. Counsel for Respondent-Father indicated that Respondent-Father desired either reunification with Y.G. or for placement of Y.G. to be with Y.G.'s paternal grandmother. At the 17 January 2007 hearing, the following exchange also took place:
THE COURT: All right. Okay. Based on . . . information that I have before me, I think I have sufficient evidence to determine what is in the best interest of these children, and I will bestow guardianship and placement with [C.B.]
DESIGNATED GUARDIAN: Thank you, Your Honor.
THE COURT: It's my pleasure.
[ATTORNEY FOR DSS]: Can we include in that the caveat that the parents are not to have any unsupervised contact and it's in [C.B.'s] discretion to determine what type of supervised contact they should have?
THE COURT: Of course, [C.B.] has it. All that discretionary-I just lost my power. I gave [C.B.] the magic wand. I no longer have it. Okay?
[ATTORNEY FOR RESPONDENT-FATHER]: And I don't mean to belabor the point but I do anticipate [Respondent-Father] getting out of custody, hopefully a week from today or whenever the case is. Do we have some type of means for [Respondent-Father] to contact [C.B.]?
THE COURT: If [C.B.] wishes to provide you that information, she may. [ATTORNEY FOR RESPONDENT-FATHER]: Okay.
THE COURT: If [C.B.] doesn't that is her choice. Okay?
Following the 17 January 2007 hearing, the trial court entered a review hearing order on 23 January 2007. The trial court ordered that Y.G. be placed in the guardianship of the maternal grandparents. The trial court did not set a date for any future hearings. Respondent-Father appeals. Respondent-Father contends in his first assignment of error that the trial court erred when it allowed visitation between Respondent-Father and Y.G. to be at the discretion of Y.G.'s guardian, C.B. We agree.
N.C. Gen. Stat. § 7B-905(c) (2005) provides:
Any dispositional order under which a juvenile is removed from the custody of a parent, guardian, custodian, or caretaker, or under which the juvenile's placement is continued outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety.
Moreover, at every review hearing a trial court shall make written findings regarding an "appropriate visitation plan," if relevant. N.C. Gen. Stat. § 7B-906(c) (2005); see also In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d 647, 651 (2005).
A trial court exercises a judicial function when it awards custody of a child and when it awards visitation rights. In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971). These judicial functions may not be delegated to the custodian of a child. Id.
If the court finds that the parent has by conduct forfeited the right [of visitation] or if the court finds that the exercise of the right [of visitation] would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, [the] child; but the court may not delegate this authority to the custodian.
Id. If the trial court does not make such findings, "the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised." Id.; see also In re R.A.H., ___ N.C. App. ___, 641 S.E.2d 404, 409-10 (2007); In re C.P., ___ N.C. App. ___, 641 S.E.2d 13, 18 (2007); In re E.C., 174 N.C. App. at 522-23, 621 S.E.2d at 651-52.
In its order entered 23 January 2007, the trial court did not address the issue of visitation between Respondent-Father and Y.G. The trial court did not make written findings regarding whether Respondent-Father had forfeited his visitation rights, nor did the trial court make written findings regarding whether visitation with Respondent-Father would be detrimental to the best interests of Y.G. However, while the trial court did not make a determination of Respondent-Father's visitation rights in its order, it did address the issue at the 17 January 2007 hearing. At that hearing, the trial court gave Y.G.'s guardian, C.B., sole discretion to determine when or if Respondent-Father could visit with Y.G. Delegation of this judicial power, whether written or oral, is in error. Accordingly, we remand to the trial court for entry of an order regarding Respondent-Father's appropriate visitation pursuant to N.C.G.S. § 7B-905(c).
Respondent-Father's second assignment of error alleges that following the 17 January 2007 hearing, the trial court erred by ordering that the case be closed and that future hearings be waived. He argues that pursuant to N.C. Gen. Stat. § 7B-906(b)(1), waiver of future hearings may only be ordered "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[.]" See N.C. Gen. Stat. § 7B-906(b)(1) (2005). Respondent-Father argues that because Y.G. had only been in the custody of the maternal grandparents since 10 June 2006, or perhaps 31 March 2006, Y.G. had not, at the time of the 23 January 2007 order, "resided with a relative or . . . been in the custody of another suitable person for a period of at least one year[.]" See id. We agree.
"If at any time custody is restored to a parent, or findings are made in accordance with G.S. 7B-906(b), the court shall be relieved of the duty to conduct periodic judicial reviews of the placement." N.C. Gen. Stat. § 7B-907(c) (2005). Future review hearings may be waived under certain conditions:
[T]he court may waive the holding of review hearings required by subsection (a) of this section, may require written reports to the court by the agency or person holding custody in lieu of review hearings, or order that review hearings be held less often than every six months, 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.
N.C. Gen. Stat. § 7B-906(b) (2005). A trial court is required to make these findings before waiving future hearings. In re R.A.H., ___ N.C. App. at ___, 641 S.E.2d at 410.
We first note that, in this case, the trial court did not specifically state in its 23 January 2007 order that it was waiving future review hearings. However, Respondent-Father points out that at the hearing on 17 January 2007, the trial court stated it had "just lost [its] power." Respondent-Father also notes that no further hearings were mentioned in the trial court's 23 January 2007 order and argues that the only explanation is that the trial court was indeed waiving future review hearings. We agree.
In its 23 January 2007 order, the trial court did find that "[t]he juvenile ha[d] resided with a relative or ha[d] been in the custody of another suitable person for a period of at least one year[.]" However, this finding was not supported by the evidence. The trial court further found that Y.G. had been placed with the maternal grandparents only since 10 June 2006, less than one year prior to the 23 January 2007 order. This finding also was not supported by the evidence, as it appears that Y.G. had been placed with the maternal grandparents on 31 March 2006. Nevertheless, the evidence in the record tending to show that Y.G. was placed with the maternal grandparents on 31 March 2006 also demonstrates that, at the time of the trial court's 23 January 2007 order, Y.G. had not "resided with a relative or . . . been in the custody of another suitable person for a period of at least one year[.]" See N.C.G.S. § 7B-906(b)(1). Therefore, the trial court erred by waiving future hearings. In light of the foregoing, we remand for entry of an order regarding the waiver of future review hearings.
Respondent-Father does not challenge the trial court's modification of the permanent plan from adoption to guardianship, nor the appointment of the maternal grandparents as guardians of Y.G. Therefore, we affirm the trial court's order as to these issues. Respondent-Father has also listed several other assignments of error in the record on appeal for which there are no arguments or supporting authority in his brief. Therefore, those assignments of error are deemed abandoned. N.C.R. App. P. 28(b)(6).
Affirmed in part; reversed in part and remanded.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).