Opinion
No. COA10-852
Filed 1 February 2011 This case not for publication
Appeal by respondent from orders entered 22 April 2010 by Judge Regina R. Parker in Beaufort County District Court. Heard in the Court of Appeals 10 January 2011.
Alice Anne Espenshade for petitioner-appellee. Joyce L. Terres for respondent-appellant. N.C. Administrative Office of the Courts, by Appellate Counsel Pamela Newell, for guardian ad litem.
Beaufort County Nos. 08 JA 73, 09 JA 89.
Respondent mother appeals from adjudication and disposition orders concluding that her sons I.M. ("Ian") and A.M. ("Adam") were abused and neglected, granting custody of Ian to Ian's father, and granting custody of Adam to the children's maternal grandparents. Although respondent mother argues on appeal that the trial court erred in admitting statements made by her children to their psychologist, we hold that those statements were admissible under the hearsay exception for statements made for the purpose of medical diagnosis and treatment. Further, the testimony of the psychologist together with other evidence provides ample support for the trial court's findings of fact, which in turn support the court's conclusion of law that Ian and Adam were abused and neglected juveniles.
The pseudonyms "Ian," "Adam," and "Zach" (a third child of respondent mother who is not the subject of this appeal) are used throughout this opinion to protect the minors' privacy and for ease of reading.
We agree, however, with respondent mother that the trial court erred in failing to make findings of fact pursuant to N.C. Gen. Stat. § 7B-906(b) (2009) before ordering that no further review hearings are required with respect to Adam. Since Adam was not returned to the custody of a parent, such findings were required. We, therefore, affirm in part and reverse and remand in part for the trial court to make the necessary findings.
The court was not required to make such findings with respect to Ian because he was placed with his father. See N.C. Gen. Stat. § 7B-906(d) ("If at any time custody is restored to a parent, guardian, custodian, or caretaker the court shall be relieved of the duty to conduct periodic judicial reviews of the placement.")
Facts
On 31 July 2008, the Beaufort County Department of Social Services ("DSS") received a report indicating that respondent mother had threatened eight-year-old Adam, 12-year-old Ian, and 14-year-old Zach with a gun, had beaten them with a belt, had forced them to drink beer, and had often left the children home alone, occasionally overnight. According to the report, respondent mother had a history of mental health problems.
Following the report, Anna Kearney, a DSS social worker, began investigating the family. Ms. Kearney went to the home of the children's maternal grandparents, the "Martins," with whom Zach lived. Zach confirmed each allegation in the report and informed Ms. Kearney that respondent mother had firearms in her home. Ms. Kearney then called law enforcement officers to accompany her to respondent mother's home. When Ms. Kearney arrived, respondent mother was not home, but Ian and Adam were. At Ms. Kearney's request, the boys came outside and spoke to her. They told her that respondent mother kept loaded guns in the home, that she had played "`Russian Roulette'" with them, that she became violent after drinking, and that they had been left home alone overnight.
"Martins" is a pseudonym.
Respondent mother returned and allowed Ms. Kearney inside the residence. Ms. Kearney observed little furniture and food in the house. Respondent mother explained that she had allowed the food supply to dwindle because the family was moving. Respondent mother also at first denied having guns in the home but later admitted that she did in fact have two guns. When Ms. Kearney explained the purpose of her visit and handed respondent mother a brochure about the investigative process, respondent mother became agitated, tore up the brochure, and denied all the allegations.
Ms. Kearney explained that DSS needed to investigate the case and believed that, in the meantime, the children could not remain in the home. Respondent mother then began to shout and cry. When Ms. Kearney asked respondent mother to make a plan with her to allow the children to stay with someone else, respondent mother stated, "`I don't care. Do what you got to do. You can take them to my parent's [sic] house.'" Ms. Kearney asked respondent mother to attend a meeting on the following Monday to discuss the case. At first, respondent mother agreed. When, however, Ms. Kearney wrote down her name and phone number and gave it to respondent mother, respondent mother tore up the paper and threw it at Ms. Kearney. Respondent mother did not attend the meeting.
During the investigation, Adam and Ian went to stay with the Martins pursuant to a safety plan. The Martins had already been given legal custody of Zach. On 15 August 2008, Ms. Martin found Ian sexually abusing a three-year-old cousin in the home. Ms. Martin reported the incident, and Ian eventually admitted to misdemeanor sexual battery in juvenile court. He was placed in a level three group home with respondent mother's consent.
On 23 November 2009, DSS filed juvenile petitions alleging that Ian and Adam were abused and neglected juveniles. On 24 November 2009, the trial court entered nonsecure custody orders for each child. The trial court placed Ian in the custody of his father. Ian had been transferred to the home of his father in the fall of 2009, prior to the filing of the petitions. The trial court allowed Adam to remain in the custody of the Martins. Nonsecure custody for each juvenile was subsequently continued by orders entered 30 November 2009 and 11 December 2009.
The trial court conducted an adjudicatory and dispositional hearing on 26 February 2010. Ms. Kearney testified, over respondent mother's objection, about statements Ian and Adam had made to her regarding the allegations in the initial report, including being taught to play Russian Roulette, seeing respondent mother drunk and violent, and being left home alone. Zach had also told her about witnessing domestic violence between respondent mother and her ex-husband, "Mr. Lowe," as well as about beatings that Ian in particular received.
"Mr. Lowe" is a pseudonym.
Dr. Raymond Webster, a child psychologist who performed a Child and Family Evaluation ("CFE") for respondent mother's family, also testified at the hearing. As part of the CFE, Dr. Webster interviewed the children, respondent mother, and the Martins, and he formulated opinions regarding the children's mental well-being. When Dr. Webster was asked what his "diagnostic impressions" were with respect to Ian, Dr. Webster responded:
Physical abuse of child. Questions were raised about him having been exposed to sexual abuse, neglect of child and then had he come back I would have been able to rule this out, Post Traumatic Stress Disorder.
Adam "did not meet any DSM criteria" for a diagnosis, but Dr. Webster testified that Adam
show[ed] anxiety, anger, fear, apprehension, slight compromise with ego strength, use[d] interpersonal relationships if consisting of anger and unhappiness and stress, vulnerable to being hurt by his world, ha[d] a tendency to act out, emotional and cognitive constriction were high indicating that he's going to have difficulty communicating his feelings to others. Hypersensitivity was also present.
Dr. Webster testified that all three children displayed "the kinds of feelings that research has suggested are those that you would see in children who have been subjected to an [sic] psychotic experience of maltreatment." Dr. Webster recommended therapy for both Ian and Adam.
Dr. Webster also explained his "diagnostic impressions" of respondent mother:
Well, I had three that I was certain of and one that I was unclear on. She has an intermittent explosive disorder, then a parent-child relational problem is the second one, and the third one is an anti-social personality disorder and then her pattern of responding on the Rorschach suggested that she might have borderline intellectual functioning but I could not assess that from procedures that I used.
According to Dr. Webster, someone with intermittent explosive disorder "is able to maintain control generally in appropriate ways over their behavior and then when they get into a stressful situation they intentionally engage in high levels of out-of-control aggressive, assertive, intimidating behavior and it's an intentional — there's some degree of intentionality of the excessive loss of control without regard for the effect of, the impact of that behavior on others." Dr. Webster further noted that respondent mother's diagnoses would "affect her ability to make sound judgments, good decisions, to exercise even minimally mentally healthy parenting techniques with the children." He also indicated that respondent mother did not acknowledge any problems with her relationships with her children.
When asked about his recommendation for future contact between respondent mother and the children, Dr. Webster explained:
Well, what my testing data indicated and the results of my evaluation indicated is that biological mother lacks the basic personal, emotional and psychological characteristics necessary to provide a minimally safe and healthy family setting for any of the boys. She presents a clear and present threat to their physical safety as well as their emotional safety and that it is unlikely that she'll be able to make any substantial changes that would allow her to resume her parenting role independently and I recommended that none of the boys be returned to her care even if she's involved in therapy. Testing data indicated that her emotional problems are longstanding and essentially immutable. But she would be able, especially with a new therapist, I define new as ten years of experience or less, she would be able to pull the wool over their eyes real good.
. . .
. . . You would need somebody who is a real seasoned therapist working with anti-socials to be able to cut through the veneer.
On 22 April 2010, the trial court entered separate adjudication orders concluding that Ian and Adam were abused and neglected juveniles pursuant to N.C. Gen. Stat. § 7B-101(1)(b) and (e) and § 7B-101(15) (2009). The trial court entered a dispositional order awarding custody of Adam to the Martins and custody of Ian to his father. The trial court gave respondent mother visitation in a therapeutic setting supervised by a mental health professional. The trial court also relieved DSS of further reunification efforts with respondent mother and determined that further review of the matter was not warranted. Respondent mother timely appealed the orders to this Court.
I
Respondent mother first argues that the trial court erred in admitting, pursuant to Rule 803(4) of the Rules of Evidence, portions of Dr. Webster's testimony and his report that repeated statements by Ian, Adam, and Zach. With regard to Dr. Webster's testimony, it is not clear that the hearsay issue raised on appeal was asserted at trial. Even assuming that it was, however, we hold that the trial court did not err in admitting any of this evidence.
Rule 803(4) provides that "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are not excluded under the hearsay rule. Our Supreme Court has articulated a two-part inquiry to determine if testimony is admissible under Rule 803(4): "(1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment." State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000).
With respect to the first prong, "the proponent of Rule 803(4) testimony must affirmatively establish that the declarant had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment." Id. at 287, 523 S.E.2d at 669. Our Supreme Court has recognized the difficulty in establishing this prong and has held that a trial court must consider "all objective circumstances of record surrounding [a] declarant's statements in determining whether he or she possessed the requisite intent under Rule 803(4)." Id. at 288, 523 S.E.2d at 670. When the declarant is a child, these circumstances include the setting of the interview, the nature of the questioning, and whether the child was speaking to medical personnel, as these circumstances "provide evidence `that the child understood the [witness'] role in order to trigger the motivation to provide truthful information.'" Id. (quoting United States v. Barrett, 8 F.3d 1296, 1300 (8th Cir. 1993)).
Here, Dr. Webster testified that the CFE took place in his office, which he described as a "consultation room that [he uses] for therapy with adolescents and adults and families" and which does not contain toys, video games, or other play items. At the hearing, Dr. Webster discussed the procedures he used to evaluate the juveniles. He explained to each child the purpose of the interview, discussed the importance of telling the truth, and took certain measures to ensure that the children had the ability to distinguish between truth and falsehood. He also testified that he specifically established the importance of telling the truth with Ian. These circumstances surrounding Dr. Webster's examination of the children support the first prong of the Rule 803(4) exception analysis.
Respondent mother claims that the "extremely delayed timing of the psychological evaluation" — approximately nine months after the children were removed from the home — suggests that the children may not have been aware that the purpose of the evaluation was for diagnosis and treatment. We are not persuaded that, in view of all the other circumstances, the children would not have sufficiently understood the purpose of the CFE. Moreover, there is no indication that the children had received any treatment in the meantime or that, because of the nine-month delay, they had a decreased motivation for truthfulness.
The statements were also sufficient to meet the second prong of the inquiry, as they were "reasonably pertinent to diagnosis or treatment." Id. at 284, 523 S.E.2d at 667. Dr. Webster described the focus points of his evaluation in the following way:
1. Have either of the children been physically and/or emotionally abused or neglected by anyone? If so, can a perpetrator be identified?
2. What is the current psychological and emotional status of each child and are any of them showing any indications of having been abused or neglected?
3. Can the children's biological mother provide a safe and emotionally healthy family setting for the children and protect them from future abuse, if this abuse or neglect has occurred?
4. Are there any mental health recommendations or psychological interventions appropriate that would help this family to function more effectively?
The statements made by the children regarding their mother were directly related to Dr. Webster's objectives. Through the CFE, Dr. Webster was able to form specific clinical diagnoses for Zach and Ian. Although he did not form a clinical diagnosis for Adam, he had very specific impressions regarding Adam's psychological well-being. Lastly, Dr. Webster recommended therapy for all three children. Thus, we find the statements of the children to be reasonably pertinent to Dr. Webster's diagnosis and treatment.
Because Dr. Webster's testimony and report were properly admitted under Rule 803(4), we are not persuaded by respondent mother's argument that, in the adjudication orders, the trial court erred in basing several findings on this evidence. The challenged findings include the following, which were essentially identical in Adam's and Ian's orders:
[7/9]. While living in his mother's home, [Adam/Ian] had been exposed to domestic violence between his mother and [Mr. Lowe], which included both heated verbal arguments and physical fighting. Mother and [Mr. Lowe] were married in 2002 and separated in 2007. However, conflict between them continued, and [Mr. Lowe] slashed mother's throat with a steak knife after breaking into her home in July of 2008. [Ian] and his older brother [Zach] were present in mother's home on the night this assault occurred.
The bracketed numbers correspond to the numbered findings of fact in Adam's and Ian's respective orders. The last sentence of finding of fact 7/9 appeared only in Ian's order, while the last sentence of finding of fact 8/10 appeared only in Adam's order.
[8/10]. While living in his mother's home, [Adam/Ian] witnessed her drinking to excess on numerous occasions. Mother often had adult guests in the home, with whom she would argue and fight. When drunk, mother would engage in belligerent and incoherent speech frightening to her sons. She told her sons, "I see demons all over you." [Adam/Ian], his brothers, and an adult relative once ran from the home to a neighbor's, out of fear that mother would kill them. [Adam] once saw his mother bite his brother.
[9/11]. Mother was preoccupied by the idea that her sons were going to become members of gangs, and was determined to prevent it. Once, when intoxicated, she produced a revolver style handgun, spun the cylinder containing the bullet chambers, and held the gun a few inches from one child's shoulder. She then pulled the trigger, saying "this is how the real gang bangers do it." She then proceeded to spin the cylinder, and point the gun at each other child in turn, pulling the trigger. She then insisted that the boys play "Russian Roulette" by taking turns pointing the gun at each other, and pulling the trigger.
[10/12]. Mother forced her eldest son, [Zach], to drink a large quantity of beer, stating "you better drink this. I aint [sic] raising no punk." [Zach] believed she intended to discourage him from consuming alcohol by doing this.
Respondent mother also challenges the following finding in Ian's order:
13. [Ian] was beaten repeatedly by mother with assorted objects. Both of [Ian's] brothers report that he received beatings more frequently, and those beatings were more intense, than the ones [Zach] or [Adam] received. [Ian] was punched in the face by his mother, hard enough to make his nose bleed. The children perceived no disciplinary purpose in these assaults. They were constantly wary of any shift in mother's mood that might result in violence.
Lastly, respondent mother challenges a similar finding from Adam's order:
11. [Adam] was beaten by mother with a belt, a switch, and a pan. He witnessed his brother [Ian] being beaten on several occasions, and once saw his mother punch [Ian] in the face hard enough to make his nose bleed. The children perceived no disciplinary purpose in these assaults. They were constantly wary of any shift in mother's mood that might result in violence.
Dr. Webster's testimony and report were competent to support each of these findings.
II
We next turn to respondent mother's contention that the trial court erred in concluding that the children were abused juveniles as defined by N.C. Gen. Stat. § 7B-101(1)(b) and (e). Under N.C. Gen. Stat. § 7B-101(1)(b), a juvenile is abused when his parent "[c]reates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.]" Under N.C. Gen. Stat. § 7B-101(1)(e), a juvenile is abused where his parent "[c]reates or allows to be created serious emotional damage to the juvenile; serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others[.]"
Respondent mother does not challenge the neglect adjudication.
In determining whether a child is abused or neglected, a trial court "must make sufficient findings of fact to support its conclusions." In re Ellis, 135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999). Factual findings that are supported by evidence are binding on appeal even though there may be evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988).
We first consider Ian's adjudication. The court found that Ian had confirmed to Ms. Kearney that respondent mother kept loaded guns in the home, that she became violent when she drank, and that the boys had been left home alone overnight. Ian and his brothers witnessed respondent mother drink to excess on numerous occasions. When drunk, she "would engage in belligerent and incoherent speech frightening to her sons." She told her sons, "`I see demons all over you.'" Once, all three boys and an adult relative ran from the home to a neighbor's "out of fear that mother would kill them."
Respondent mother has not, on appeal, challenged the admissibility of this testimony.
The court also found that once, when intoxicated, respondent mother "produced a revolver style handgun, spun the cylinder containing the bullet chambers, and held the gun a few inches from one child's shoulder. She then pulled the trigger, saying `this is how the real gang bangers do it.' She then proceeded to spin the cylinder, and point the gun at each other child in turn, pulling the trigger. She then insisted that the boys play `Russian Roulette' by taking turns pointing the gun at each other, and pulling the trigger."
Respondent mother takes issue with the court's finding that she played Russian Roulette with the children, arguing that Zach made no mention of playing Russian Roulette in his testimony and that, although Zach admitted respondent mother held a gun to his head on one occasion, he testified that he knew the gun was not loaded. Regardless whether Zach knew the gun was not loaded, the evidence is sufficient to support these findings.
Dr. Webster testified about how Zach had described the incident to him:
[D]uring another bout of inebriation she brought out the weapon to show him and his brothers how, this is a quote, "real gang bangers do it." She then spun the barrel around and pulled the trigger several times. [Zach] said that no bullet came out but she was pointing the gun at his and his brothers' heads and he described this game as Russian Roulette and it only happened one time. He was visibly shaken when he was sharing this with me.
Ms. Kearney gave a similar account based on her discussions with Ian and Adam:
I asked about the guns and they said there were guns in the home and that they were loaded and they taught him — that [respondent mother] had taught them how to play a game called Russian Roulette where you put a bullet in a gun and point it at people. Then I asked them why she would do that and they said to teach them what it was like to really be in a gang.
The trial court's findings regarding Russian Roulette were, therefore, amply supported.
The trial court further found that Ian "was beaten repeatedly by mother with assorted objects" and "was punched in the face by his mother, hard enough to make his nose bleed." Ian and his brothers "perceived no disciplinary purpose in these assaults." Respondent mother insists that the evidence showed only that Ian was "`hit'" or "`slapped'" but not "punched" in the nose. We question whether this distinction matters given that there is no dispute Ian's nose bled however he was struck. In any event, Ms. Kearney testified (1) that Zach told her that Ian "usually got the worst of the beatings and that on one occasion she punched him in the nose and it bleed [sic]" and (2) that Ian told her "one time his mom punched him in the nose and made it bleed." This unchallenged testimony supports the finding that Ian was "punched."
In addition, the trial court found that Ian, while living in respondent mother's home, was exposed to domestic violence — including heated verbal arguments and physical fighting — between his mother and Mr. Lowe. After respondent mother separated from Mr. Lowe in 2007, conflict between them continued, and in July 2008, Mr. Lowe broke into respondent mother's home and slashed her throat with a steak knife while Ian and Zach were in the home. Although respondent mother argues that there was "no evidence that [the children] were victims of domestic violence," the court merely found that Ian was "exposed" to domestic violence. This finding is amply supported by the testimony of Dr. Webster, Ms. Kearney, and Zach, who discussed the verbal and physical fighting that the children witnessed between respondent mother and Mr. Lowe.
The trial court found as well that "Dr. Webster concluded that [Ian] had been the victim of physical abuse, and was likely a victim of sexual abuse as well." Respondent mother does not contest the portion of this finding addressing physical abuse, but she insists that there was no evidence of sexual abuse. The court did not, however, find that Ian was in fact sexually abused. Instead, it simply noted that Dr. Webster determined Ian may have been a victim of sexual abuse. In any event, respondent mother's argument is beside the point, as the court did not base its adjudication on sexual abuse.
In challenging the court's conclusion that Ian was exposed to a substantial risk of physical injury under N.C. Gen. Stat. § 7B-101(1)(b), respondent mother points out that "there were no findings regarding any marks or injuries resulting from any of these `beatings,' except the one finding relating to an injury sustained by Ian." To support her position, respondent mother relies on In re Mickle, 84 N.C. App. 559, 559, 561, 353 S.E.2d 232, 233 (1987) (holding evidence did not sustain abuse finding where child was whipped once with belt and another time with switch, sustaining temporary marks and bruising each time). This Court has previously rejected similar reliance on In re Mickle in In re L.T.R. J.M.R., 181 N.C. App. 376, 381, 639 S.E.2d 122, 125 (2007). In In re L.T.R. J.M.R., the Court emphasized that In re Mickle was decided under a statute no longer in effect that required permanent injuries in order to sustain a finding of abuse. Id. at 382 n. 2, 639 S.E.2d at 126 n. 2. The current statute, N.C. Gen. Stat. § 7B-101(1), does not require permanent injuries or even actual physical injury, but rather provides that a child is abused if there was "a substantial risk of serious physical injury." N.C. Gen. Stat. § 7B-101(1)(b) (emphasis added). We conclude that the trial court's findings support its determination that respondent mother subjected Ian to a substantial risk of serious physical injury.
We also reject respondent mother's challenge to the conclusion that she exposed Ian to serious emotional damage under N.C. Gen. Stat. § 7B-101(1)(e). Respondent mother argues that the court's findings of fact were inadequate because a finding "that [Ian] is a victim of physical or sexual abuse does not address his emotional state." Respondent mother, however, overlooks the finding that in August 2008, Ian's grandmother found him standing over a three-year-old cousin with his penis in the cousin's mouth. That finding reflects that Ian engaged in "aggressive behavior toward . . . others," which, according to § 7B-101(1)(e), constitutes evidence of "serious emotional damage." Respondent mother also ignores the trial court's finding that Dr. Webster believed respondent mother "was a clear and present threat to [Ian's] . . . emotional safety." These findings support the trial court's determination that respondent mother "[c]reates or allows to be created serious emotional damage" to Ian. N.C. Gen. Stat. § 7B-101(1)(e).
We next address Adam's adjudication. The trial court made identical findings with respect to respondent mother's intoxication and belligerence, the Russian Roulette incident, and Adam's exposure to domestic violence. As to beatings, the court found Adam "was beaten by mother with a belt, a switch, and a pan." Adam also witnessed Ian's numerous beatings, including when he was struck in the nose.
The court also found that Adam "is experiencing high levels of anxiety, anger and fear. [Adam] is experiencing a high level of emotional constriction, hypersensitivity, and a tendency to act out emotions he can not otherwise express." The court further found that Dr. Webster believed "there is a clear nexus between mother's pattern of interacting with her children and the emotional damage that [Adam] has suffered." As with Ian, the trial court found that Dr. Webster identified respondent mother as "a clear and present threat" to Adam's emotional safety.
Regarding the § 7B-101(1)(b) definition of abuse, respondent mother makes the same meritless argument as to Adam that she made as to Ian regarding the absence of visible marks or injuries. We, therefore, hold that the § 7B-101(1)(b) determination was amply supported by the trial court's findings of fact and the evidence presented.
Regarding the § 7B-101(1)(e) conclusion, respondent mother argues that the findings "provide no concrete representation of Adam's possible anxieties and fears as the court was able to do in" Powers v. Powers, 130 N.C. App. 37, 502 S.E.2d 398, disc. review denied, 349 N.C. 530, 526 S.E.2d 180 (1998). In Powers, however, the Court merely concluded that there were "ample findings" to support a conclusion under § 7B-101(1)(e). Powers, 130 N.C. App. at 42, 502 S.E.2d at 401. The Court did not indicate that less "physical" or "concrete" demonstrations do not suffice under § 7B-101(1)(e). We hold that the trial court sufficiently supported its determination that Adam had been abused within the meaning of § 7B-101(1)(e) when it found that Adam "is experiencing high levels of anxiety, anger and fear" and "a high level of emotional constriction, hypersensitivity, and a tendency to act out emotions he can not otherwise express."
III
Finally, respondent mother contends that the trial court erred in failing, with respect to Adam, to make the statutorily-required findings of fact before ordering that "[n]o further review is required in this matter." N.C. Gen. Stat. § 7B-906(a) provides that "[i]n any case where custody is removed from a parent, guardian, custodian, or caretaker the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter." The trial court may, however, dispense with such review hearings 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). "Failure to find all of these criteria constitutes reversible error." In re L.B., 184 N.C. App. 442, 447, 646 S.E.2d 411, 413 (2007).
Here, the trial court complied with N.C. Gen. Stat. § 7B-906(b)(1) by finding that Adam has resided with his maternal grandparents since August 2008, which was over a year before the hearing. The court satisfied § 7B-906(b)(2) by finding that it is not in Adam's best interest to return to respondent mother's custody; Adam is receiving adequate care and supervision in his present placement; reasonable efforts aimed at reunification with respondent mother are futile; and the "best plan of care to achieve a safe permanent home within a reasonable time is: to grant legal custody of [Adam] to his grandparents." Additionally, the trial court satisfied § 7B-906(b)(5) by granting legal custody of Adam to the Martins and designating the Martins as his permanent caregivers.
As DSS concedes, however, the trial court failed to make the findings required by N.C. Gen. Stat. § 7B-906(b)(3) and (4). While acknowledging that the order did not fully comply with N.C. Gen. Stat. § 7B-906(b), DSS points out that respondent mother made no argument below to oppose the suspension of review hearings, and DSS further contends that § 7B-906(b) gives respondent mother an avenue of redress. See id. ("The court may not waive or refuse to conduct a review hearing if a party files a motion seeking the review."). DSS' arguments overlook the mandate set out in § 7B-906(b). Were we to adopt DSS' argument regarding the right of redress, we would essentially nullify the requirements of § 7B-906(b)(1)-(5), which we cannot do. The guardian ad litem's ("GAL") argument that the trial court made the necessary findings by virtue of incorporating the GAL report is also without merit. Even if the GAL report spoke to § 7B-906(b)(3) and (4), the requirements of the statute are not met by the existence of evidence regarding the factors, but rather the statute requires that the trial court actually make the specified findings of fact.
As the trial court's order fails to satisfy the requirements of § 7B-906(b)(3) and (4), "we reverse on this issue and remand the case to the trial court to issue a new order with written findings of fact consistent with this opinion and the requirements of section 7B-906(b)." In re L.B., 184 N.C. App. at 449, 646 S.E.2d at 415.
Affirmed in part; reversed and remanded in part.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).