Opinion
No. COA11-13
Filed 7 June 2011 This case not for publication
Appeal by respondents from orders entered 20 May 2010 by Judge G. Galen Braddy and order entered 14 October 2010 by Judge Joseph A. Blick, Jr. in Pitt County District Court. Heard in the Court of Appeals 9 May 2011.
Elizabeth Myrick Boone for petitioner-appellee. Ryan McKaig for respondent-appellant grandmother. Robert W. Ewing for respondent-appellant grandfather. N.C. Administrative Office of the Courts, by Appellate Counsel Pamela Newell, for guardian ad litem.
Pitt County Nos. 09 JA 12, 09 JA 13.
Respondent grandparents, who are the adoptive parents of one granddaughter and have custody of their second granddaughter, each appeal from orders entered 20 May 2010 and 14 October 2010 that ceased reunification efforts between them and their two granddaughters, approved guardianship of M.H. ("Mary") with her foster parents, and established a permanent plan for R.H. ("Rose") of guardianship with a relative (with a concurrent plan of custody with a court-approved caretaker). Respondents primarily argue that the trial court erred in ceasing reunification efforts and approving plans of guardianship because they fully complied with all requirements set by the trial court.
The pseudonyms "Mary" and "Rose" are used throughout this opinion to protect the minors' privacy and for ease of reading.
The evidence, however, fully supports the trial court's determination that, despite following the letter of their plans, respondents did not make sufficient progress to allow return of the children to their custody within six months. Moreover, the unchallenged findings of fact, including resistance to the efforts of Pitt County Department of Social Services ("DSS"), support the trial court's determination that further reunification efforts would be futile or inconsistent with the children's health, safety, and need for a safe, permanent home within a reasonable time. Because we are also unpersuaded by respondents' remaining arguments, we affirm.
Facts
On 28 January 2009, DSS filed a petition alleging that Mary was an abused and neglected juvenile and, on 29 January 2009, filed a second petition alleging that Rose, Mary's sister, was a neglected juvenile. Mary and Rose resided with respondents, their maternal grandparents. Respondents had adopted Rose in October 2008 after her mother relinquished her parental rights. Although the parental rights of Mary's father had been terminated, respondent grandparents had not adopted Mary. Mary had nonetheless resided with them since she was five years old.
Respondents stipulated that the following allegations of the petitions, alleging inappropriate discipline, were true:
[Mary] is made to stay in her room at all times, including after school and on weekends; must eat dinner on the porch despite the temperature; is isolated to her room and not allowed contact with anyone in the home; that the grandparents installed a webcam in the juvenile's room to monitor her behaviors; that she was made to roll around in the floor in a puddle of urine which she was accused of making and keep the clothes on that were soiled.
Based on those admitted allegations and further findings of inappropriate discipline, the trial court, on 3 June 2009, adjudicated Mary to be neglected and Rose to be neglected because her sister was subjected to "bizarre punishments by her grandparents." In a dispositional order entered 9 November 2009, the trial court removed custody from respondents, and Mary and Rose were placed in separate foster homes.
The trial court established a plan of reunification and allowed supervised visitation with the children. The court ordered that respondents: (1) participate in sensitivity classes; (2) cooperate with DSS and the guardian ad litem; (3) submit their tax records for the prior five years to all parties; (4) participate in marriage counseling; (5) participate in individual counseling; (6) participate in parenting classes; (7) attend the GREAT and SAFE programs; and (8) participate in family therapy with Rose.
On 11 March 2010, the trial court conducted a permanency planning review hearing. In two permanency planning orders entered 20 May 2010, one for Rose and one for Mary, the trial court ceased reunification efforts with respondents. With respect to Rose, the trial court established a permanent plan of guardianship with a relative with a concurrent plan of custody with a court-approved caretaker. For Mary, the court established a permanent plan of guardianship with a court-approved caretaker with a concurrent plan of custody with a court-approved caretaker.
In these orders, the trial court found, in addition to the improper discipline conceded by respondents in the neglect proceeding, that respondent grandmother had given Mary Ipecac syrup after school so as to induce her to vomit, allowing her to see what Mary ate while she was at school. Mary was isolated from other family members within the home and was restricted from outside contact. Mary's bedroom was "sparse," and she had no toys. Her bedroom had an alarm on the door, and, if she needed to use the restroom during the night, she was required to knock on the door so that someone could come to let her out. As punishment, Mary was forced to eat out of a trash can, shovel dirt from one pile to another in the yard, run around the house for two to three hours at a time, and "to write 250-1,000 sentences." When respondent grandmother went shopping, she would leave everything for Mary to bring into the house. Mary also went outside without a coat and shoes.
The trial court further found that Mary ate food with maggots on it, and, on one occasion, while she was locked in her room, ate food that respondent grandfather had spit in. The trial court found that respondent grandmother constantly berated Mary; beat Mary, using ice packs to hide the swelling; and used duct tape on her. Mary was also made to stay in the laundry room for long periods.
Mary has significant psychiatric diagnoses, including conditions arising out of physical and sexual abuse inflicted by her father when Mary was a young age. Although Mary was supposed to be seeing a doctor, Dr. Antonacci, respondent grandmother was noncompliant in keeping up with follow-up appointments. Mary ultimately received inpatient treatment on multiple occasions. Respondent grandmother disagreed with psychotropic medication prescribed by ECU Psychiatric Consultants and wrote letters to Pitt Memorial Hospital suggesting modifications to the findings in Mary's medical records.
Respondents showed more affection to Rose than to Mary. Consequently, Mary has issues with jealousy of Rose. Prior to a custody hearing in 2008 involving Rose's biological father, respondent grandmother indicated that she did not want Mary back.
On 1 March 2010, respondent grandfather visited Mary's MySpace page and saw that Mary had stated that she wanted to cut herself. He went to the magistrate that same weekend to try to have Mary committed. On 6 March 2010, respondents had a visit with Mary and Rose. Respondent grandmother brought the computer game "Shutter Island" to play during the visit.
The trial court found regarding this visit: "While the interaction between the family was appropriate during the game, the game is based upon the movie `Shutter Island,' which involves a person going to an insane asylum and the object of the game is to kill objects, etc. `before you go insane.'" The court further found that during the game, when the family was looking for an instrument to kill an object, they came across a razor blade and Mary said "`that will work, that's what emos' [sic] use to kill themselves.'" The court noted that even though respondent grandfather had sent out emails regarding Mary's comment on MySpace about cutting herself, he and his wife allowed both girls to play a game where they had to use weapons to kill things.
Rose has been diagnosed with Attention Deficit Hyperactivity Disorder and has a distrust of adults. Rose has also experienced emotional difficulties since DSS became involved. Rose has indicated that she does not wish to return to the home of respondents, although she has, on prior occasions, expressed a different opinion. On one occasion, Rose explained that she did not want to go back to respondents because they were mean to her sister.
The trial court found with respect to respondents' progress and ability to parent Mary:
142. Neither [of respondents] ha[s] made consistent or substantial changes to their behaviors to show real change needed to parent this juvenile and her sibling. The return of [Mary] and [Rose] to this home environment would not now provide long term safety and permanence for [Mary] and could not occur within a reasonable period of time.
The trial court made a substantially identical finding as to Rose. With respect to Mary, the court also found:
143. The behaviors of [respondents] have not changed substantially up to the date of court, as shown by the testimony of [respondent grandfather] and the visitation note [regarding the computer game].
The trial court found that Mary could not be returned to respondents' home within the next six months because she was participating in Trauma Focused Cognitive Based therapy, which takes 12 to 16 weeks, and it was recommended that she have no contact with respondents during that time. After completion of that therapy, Mary would need to work through her issues in therapy and then slowly transition back to visits with respondents.
The trial court determined that Rose could not be returned to respondents' home within the next six months because Rose was getting ready to begin Trauma Focused Cognitive Behavioral Therapy; respondents continued to have conflict with Rose's father; that conflict scares Rose; Rose does not want to return to their home; respondent grandfather continues to blame others and has shown no positive change; while respondents complied with the trial court's requirements, they continued to allow Rose and Mary to play inappropriate games; and the time to resolve these issues would exceed six months.
In addition to changing the permanent plan for Rose and Mary, the trial court also relieved DSS of further reunification efforts with respect to respondents because such efforts "would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time." (Emphasis original.) With respect to visitation, the trial court ordered that Rose "shall continue to have visits with [respondents], at her election, twice a week for two hours each visit." As for Mary, the trial court found that "[v]isitation with the juvenile by [respondents] would be contrary to the best interest of the juvenile and should be suspended until this juvenile completes Trauma Focused Cognitive Based Therapy[.]" The court ordered that "[a]fter her participation in this therapy has ended, she may attend visits with [respondents] at her discretion."
The trial court conducted another permanency planning hearing with respect to Mary on 16 September 2010. In an order entered 14 October 2010, the trial court found that Mary and her foster parents all desired that the foster parents assume guardianship of her. Further, Mary passed all of her end of grade tests for the first time and graduated from eighth grade. At the time of the hearing, Mary was in ninth grade and "doing well in school academically." Mary was making progress in therapy, did not demonstrate any aggressive behaviors in her foster parents' home, and was demonstrating signs of emotional recovery.
The court found that the foster parents "love this juvenile and welcome her as a daughter in their home." The trial court, therefore, changed Mary's permanent plan to guardianship with a court-approved caretaker, her foster parents. Following entry of this order, respondents appealed to this Court from each of the permanency planning orders.
I
Respondent grandmother first contends that the trial court lacked subject matter jurisdiction because the petitions alleging abuse and neglect were not properly verified. According to respondent grandmother, the verification was faulty because the petitioner was identified on the first page as "George Perry, Director for Pitt County DSS," but the petitions were signed and verified by an authorized representative, Sophia Ellis. Respondent grandmother argues that when an authorized representative verifies a petition, that representative must be listed as the petitioner.
In juvenile proceedings, verified pleadings are required to invoke the jurisdiction of the court over the subject matter. In re Triscari Children, 109 N.C. App. 285, 288, 426 S.E.2d 435, 437 (1993). Pursuant to statute, "the petition shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing." N.C. Gen. Stat. § 7B-403(a) (2009). The director may, however, "delegate to one or more members of his staff the authority to act as his representative." N.C. Gen. Stat. § 108A-14(b) (2009). Such a delegation "may extend to the director's duty `[t]o assess reports of child abuse and neglect and to take appropriate action to protect such children' pursuant to Chapter 7B." In re Dj.L., D.L., S.L., 184 N.C. App. 76, 79, 646 S.E.2d 134, 137 (2007) (quoting N.C. Gen. Stat. § 108A-14(a)(11), (b) (2005)).
In support of her contention that an authorized representative cannot verify a petition unless he or she is also identified as the petitioner, respondent grandmother points to In re R.A.E., 195 N.C. App. 130, 672 S.E.2d 103, 2009 WL 131112, 2009 N.C. App. LEXIS 87 (Jan. 20, 2009) (unpublished). Even if In re R.A.E. were controlling authority, nothing in that opinion suggests the requirement urged by respondent grandmother. In In re R.A.E., the petition indicated that the director was verifying the petition, but someone had signed the director's name for him and indicated that he or she had done so by initialing the signature. 2009 WL at *2, 2009 N.C. App. at *6. It could not be determined who signed the petitions or if that person had, in fact, been granted the authority to sign as a representative of the director. 2009 WL at *3, 2009 N.C. App. at *7. Such is not the case here: Ms. Ellis signed the petition herself and expressly indicated that she was an authorized representative.
In In re Dj.L., D.L., S.L., the respondent had similarly argued that the juvenile petition was not properly verified when it stated only that "`Betty Hooper, Petitioner, ha[s] sufficient knowledge or information to believe that a case has arisen which invokes the juvenile jurisdiction of the Court'" and listed Ms. Hooper's address as Youth and Family Services, which is a division of the Mecklenburg County Department of Social Services. 184 N.C. App. at 79, 646 S.E.2d at 137. The respondent argued that the underlying petition was flawed because it "fail[ed] to state that the affiant, Betty Hooper, is either the director of DSS or an authorized agent of the director." Id. In rejecting this argument, this Court held: "Although the best practice is to include a distinct statement that the petitioner is the director of the county department of social services or is an authorized representative of the director, we hold that the juvenile petition in the case sub judice contained sufficient information from which the trial court could determine that Betty Hooper had standing to initiate an action under section 7B-403(a)." Id. at 80, 646 S.E.2d at 137.
Under Dj.L., D.L., S.L., the petitions, in this case, which specifically identified the signatory as an authorized representative of the director, as well as being an employee, were properly verified. The trial court, therefore, had subject matter jurisdiction.
II
Respondent grandfather contends that the trial court erred by not allowing his counsel to cross-examine Amy Reig, a DSS social worker, regarding another child living in the foster home with Mary. At the permanency planning hearing on 16 September 2010, Ms. Reig testified that the foster home in which Mary had been placed is "licensed as a therapeutic foster home with Easter Seals UCP Company" and that another foster child had also been placed in that home. Respondent grandfather's counsel attempted to cross-examine Ms. Reig regarding the reasons that Mary's foster sibling needed to be placed in that therapeutic foster home. The trial court allowed questioning concerning the foster sibling's current behavior in the home, but would not permit questions regarding the reasons the child was placed in the home, ruling that they were "irrelevant."
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.R. Evid. 401. As this Court has previously held, although "a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), appeal dismissed and disc. review denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241, 113 S. Ct. 321 (1992).
Here, Ms. Reig testified that Mary had been living in the foster home for 14 months and that there had been no issues regarding her safety or stability. Further, she testified that Mary and her foster sibling interacted "very well" together. No evidence was presented that there were any incidents between the children in the foster home or that Mary was in any way endangered or threatened by the presence of her foster sibling. We agree with the trial court that, under the circumstances, questions concerning the reasons the other child was placed in the home — questions that would invade the other child's privacy — were not relevant to a determination whether guardianship with the foster parents was in Mary's best interests. Accordingly, we find no abuse of discretion by the trial court.
III
Both respondents next challenge the trial court's cessation of reunification efforts. Respondent grandfather contends the trial court erred in ceasing reunification efforts with Rose only, while respondent grandmother argues the trial court erred in ceasing reunification efforts with both Mary and Rose.
Our "`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.V. M.V., 198 N.C. App. 108, 112, 679 S.E.2d 843, 845 (2009) (quoting In re J.C.S. R.D.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), superseded by statute on other grounds as stated in In re K.L., 196 N.C. App. 272, 674 S.E.2d 789 (2009)). The findings of fact "`are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings.'" In re L.T.R. J.M.R., 181 N.C. App. 376, 381, 639 S.E.2d 122, 125 (2007) (quoting In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984)).
The purpose of a 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) (2009). In accomplishing this goal, the trial court may order DSS to cease reunification efforts with a parent or guardian pursuant to N.C. Gen. Stat. § 7B-507(b) (2009):
(b) In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:
(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]
Here, the trial court made extensive unchallenged findings of fact regarding respondent grandparents' mistreatment of Mary that resulted in the neglect adjudication. Indeed, the findings of fact suggest that this case represents a modern-day version of the Cinderella story. While the trial court noted that respondents had completed many elements of their case plan, the trial court nonetheless found that neither respondent had "made consistent or substantial changes to their behaviors to show real change needed to parent" Mary or Rose. The court, therefore, found that "[t]he return of [Mary and Rose] to this home environment would not now provide long term safety and permanence" for the juveniles. This finding of fact regarding respondents' failure to sufficiently change their behavior to parent the juveniles is supported by ample evidence.
Ms. Reig testified that respondents "still do not want to take any responsibility for what took place in their home." The juveniles' guardian ad litem testified that she had not seen "true change in the process" regarding respondents, that the individual therapy for respondents was not "as consistent as we would have hoped," and that "they were seeing counselors maybe more intermittently than the court order had . . . advised." She also expressed concern that respondents were more interested in receiving a letter from the counselors stating that they had met the requirements expected of them than actually complying with the counseling.
Additionally, the trial court made unchallenged findings of fact regarding the years of abuse that respondents inflicted upon Rose and Mary's mother, as well as the years of abuse suffered by Mary. Respondents additionally left unchallenged a finding of fact that "Dr. Webster recommended no treatment for [respondents] as he felt that they were not treatable due to their personality disorders." Finally, the trial court made numerous findings of fact regarding respondents' threats, resistance, and harassing emails to DSS, interfering with DSS' efforts to work with respondents and on behalf of the girls.
Respondent grandfather contends, however, that he always appropriately parented Rose and, thus, returning her to his home would not be inconsistent with her health and safety. We disagree. Rose was adjudicated neglected based on stipulations made by respondents, and neither respondent appealed from the trial court's order. Furthermore, the definition of a neglected juvenile provides that "[i]n determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15) (2009).
Respondent grandfather's continuing failure to recognize the impact on Rose of the trauma and neglect suffered by Mary at respondents' hands provides further support for the trial court's determination that respondents have failed to make sufficient progress. Accordingly, we conclude the evidence and the trial court's findings of fact support the trial court's conclusion that reunification efforts would be futile.
IV
We next address respondent grandmother's argument that the trial court erred by determining guardianship for Mary and a plan of guardianship for Rose were in the best interests of the girls. A trial court's conclusion that the best interests of the child would be served by establishing guardianship as the permanent plan for the child is reviewed for an abuse of discretion and will be overturned only upon a showing that the decision was so arbitrary that it could not have been the result of a reasoned decision. See In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007) ("We review a trial court's determination as to the best interest of the child for an abuse of discretion.").
Here, the trial court made extensive findings of fact regarding the trauma suffered by Mary and her own biological mother at the hands of respondents. Although the trial court recognized that respondents "complied with the court's requirement in this case," the court also found, as supported by the evidence, that they had still had not shown, despite that compliance, real positive change and that they would not likely respond to treatment due to their personality disorders. Compliance with a case plan does not preclude a trial court from concluding that relative placement is still not in the best interests of the child.
Further, the trial court found that Rose and Mary did not wish to return to respondents' home, and both juveniles were doing well in their foster care placements. Specifically, as to Mary, the trial court found that she was "doing well" in her foster home and that it was "an excellent placement for her." Therefore, we hold that the trial court did not abuse its discretion in concluding that guardianship of Mary with her foster parents and that establishment of a permanent plan of guardianship for Rose were in the best interests of the juveniles and represented the best plans "to achieve a safe, permanent home for the juvenile within a reasonable period of time," as contemplated by N.C. Gen. Stat. § 7B-907(a).
V
We next address respondent grandmother's contention that the trial court failed to comply with N.C. Gen. Stat. § 7B-907 and N.C. Gen. Stat. § 7B-600 (2009) when it appointed Mary's foster parents as guardians for Mary. Specifically, respondent grandmother argues that there was evidence that the foster parents had "wavered in their desire to serve as [Mary's] guardian, and there was no specific evidence verifying that they understood their role and responsibilities as guardians." We disagree.
Pursuant to N.C. Gen. Stat. § 7B-907(f), "the court shall verify that the person receiving custody or being appointed as guardian of the juvenile understands the legal significance of the placement or appointment and will have adequate resources to care appropriately for the juvenile." Similarly, N.C. Gen. Stat. § 7B-600(c) also states that "the court shall verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile." This Court previously has held that neither § 7B-600(c) or § 7B-907(f) "require that the court 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, disc. review denied, 361 N.C. 427, 648 S.E.2d 504 (2007).
At a permanency planning review hearing, the trial court "shall consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive parent providing care for the child, the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review." N.C. Gen. Stat. § 7B-907(b). Additionally, the trial 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.
Here, the trial court made the following unchallenged findings of fact:
18. This juvenile desires to remain with [her foster parents] and for them to have guardianship of her and they desire to assume guardianship of her.
. . . .
41. [The foster mother] and the Department discussed legal guardianship of this juvenile on at least two different occasions, May 26, 2010 and June 15[,] 2010. [The foster parents] are willing to serve as the legal guardians of this juvenile. [The foster parents] understand what they are doing, and they understand the legal consequences of being awarded guardianship by this Court.
. . . .
47. [The foster parents] have the financial ability to provide for this juvenile.
. . . .
51. [The foster parents] are able to continue to provide . . . proper care and supervision of the juvenile on a permanent basis.
The trial court further found that the foster parents understood the legal significance of being appointed guardians of Mary.
These findings of fact are all supported by evidence from Ms. Reig. Ms. Reig testified that the foster parents were "totally capable" of "provid[ing] proper care and supervision" for Mary. She explained further, "[a]ppropriate care, supervision, redirection, when necessary, being talked to about just life issues in general; they're very capable of taking care of her." Ms. Reig stated that after investigating the foster parents' finances, she found "they would be able to financially maintain her in their home." Ms. Reig also noted that the foster parents had been previously awarded guardianship of another child that lived in their home. When Ms. Reig was asked about whether the foster parents had wavered in their desire for guardianship, she testified that they are "set on it" and "willing to provide this child with the best care."
The trial court could properly base its verification on Ms. Reig's trial testimony pursuant to N.C. Gen. Stat. § 7B-907(b). Accordingly, we hold that the trial court complied with both N.C. Gen. Stat. § 7B-600(c) and § 7B-907(f).
VI
Finally, we consider respondent grandfather's contention that the trial court violated N.C. Gen. Stat. § 7B-906(c)(6) (2009) by failing to adopt an appropriate visitation plan. Section 7B-905(c) (2009) provides that any dispositional order which places the juvenile "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." This Court has previously stated that:
In the absence of findings that the parent has forfeited their right to visitation or that it is in the child's best interest to deny visitation "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."
In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d 647, 652 (2005) (quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971)).
Here, the trial court ordered that Rose
shall continue to have visits with [respondents], at her election, twice a week for two hours each visit. These visits shall be supervised by [the foster mother], at the location of [the foster mother's] choice. These visits shall not be at the [respondents'] home. All visits shall be scheduled between the [respondents] and [the foster mother].
Regarding Mary, the trial court ordered:
There shall be no visitation between the juvenile and the respondent grandparents. . . . Any visitation in the future shall occur only after completion of cognitive behavioral therapy and if the juvenile elects to have contact with the respondent grandparents.
Respondent grandfather argues that the trial court erred in its visitation plan by allowing the juveniles to determine whether visitation should occur.
In In re E.C., this Court held that "[a]n appropriate visitation plan" in compliance with N.C. Gen. Stat. § 7B-905(c) "must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised." 174 N.C. App. at 523, 621 S.E.2d at 652. Furthermore, "[t]he awarding of visitation of a child is an exercise of a judicial function, and a trial court may not delegate this function to the custodian of a child." Id. at 522, 621 S.E.2d at 652 (emphasis added).
As to Mary, the court concluded that no visitation should occur, a decision not challenged by either respondent. The court did, however, allow Mary to ask for visitation following completion of therapy. E.C., which does not address a decision not to allow visitation, is immaterial with respect to Mary.
With respect to Rose, the trial court continued the visitation plan already in place, a plan that respondent grandfather also does not challenge. The court, however, allowed Rose to choose not to see her grandparents. This provision does not delegate any discretion over visitation to Rose's custodians. E.C. does not address the situation when a trial court determines that it is in the best interests of an older child to allow her to decide whether she wants to visit with her parents. Indeed, we have found no authority prohibiting such a determination.
In considering an award of visitation, "the court must be controlled by the principle that the best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and that neither of these rights should be permitted to jeopardize the best interest and welfare of the child." Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849. In this case, especially because the trial court has ceased reunification efforts, the trial court did not abuse its discretion when it allowed Rose a choice regarding visitation rather than forcing her to see respondents. Therefore, we hold that the trial court's plan for visitation was proper and in compliance with N.C. Gen. Stat. § 7B-905(c), as well as the parameters set out in E.C. and Stancil.
Conclusion
We conclude that the trial court did not err by ceasing reunification efforts, appointing Mary's foster parents as her guardians, and establishing a permanent plan of guardianship for Rose or a concurrent plan of custody with a court-approved caretaker. We further conclude that the trial court did not err in its visitation plan for the juveniles. Accordingly, we affirm the trial court's orders.
Affirmed.
Judges McGEE and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).