Opinion
No. COA10-78
Filed 15 June 2010 This case not for publication
Appeal by respondent from judgment entered 14 October 2009 by Judge Sherry F. Alloway in Guilford County District Court. Heard in the Court of Appeals 25 May 2010.
Mercedes O. Chut, for Guilford County Department of Social Services, petitioner-appellee.
Smith, James, Rowlett Cohen, L.L.P., by Margaret Rowlett, for guardian ad litem.
Ryan McKaig, for respondent-appellant.
Guilford County No. 08 J 92.
Melissa S. ("Respondent") is the mother of T.M.S. (hereinafter "the child"), who initially came into the custody of the Guilford County Department of Social Services (hereinafter "petitioner") on 27 May 2008. At that time Respondent contacted Petitioner and asked that the child be placed for adoption because she could not care for the child. Petitioner filed a juvenile petition alleging that the child is a dependent juvenile, and the court adjudicated her as such. Respondent subsequently changed her mind about giving up the child for adoption, worked on her case plan, and successfully earned the return of the child to her home on 8 January 2009. Four months later, the Greensboro Police Department received a dispatch regarding a domestic disturbance at a residence. An officer arrived at the residence and found the child lying on a mattress in a closet. The officer observed multiple large dark contusions all over the child's legs. Respondent admitted to the officer that she spanked the child multiple times with her hands. The officer arrested respondent and charged her with misdemeanor child abuse. As a result of this incident, petitioner filed a second juvenile petition on 20 May 2009 and obtained nonsecure custody of the child.
On 10 July 2009 the trial court conducted a hearing and entered an order on 5 August 2009 adjudicating the child to be an abused, neglected, and dependent child. Because it desired more information before making a complete disposition, the court scheduled a disposition and permanency planning hearing on 19 August 2009. After this hearing the court entered an order on 14 October 2009 entitled "Further Disposition and Permanency Planning Review Hearing" in which it concluded that it is in the best interest of the child that she remain in the legal and physical custody of petitioner and that the permanent plan should be changed to adoption. Respondent filed notice of appeal on 13 November 2009. The notice of appeal states that respondent appeals the disposition order announced in court on 18 September 2009 and entered on 14 October 2009 "determining that the permanent plan for the child should be adoption."
Respondent first contends that the court erred in changing the permanent plan to adoption despite finding that respondent loves her child and is compliant with the court's instructions with regards to obtaining treatment and services. Respondent argues that by not giving her an opportunity to show improvement, the court failed to enforce the dual purposes of the Juvenile Code of ensuring the safety of children and protecting the constitutional rights of parents. We reject this contention.
In the adjudicatory phase of a hearing to determine if a child is abused or neglected, a trial court is required to determine whether allegations of abuse or neglect are proven by clear and convincing evidence, whereas in the disposition stage, the court is required to decide what disposition is in the best interest of the child. In re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853 (2004). A trial court's determination regarding the best interest of a child is reviewable only for an abuse of discretion. In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007). "A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
We conclude the court's findings reflect the making of a reasoned decision. The court took into consideration factors which were both favorable and unfavorable to respondent. As noted by respondent, the court did favorably find that respondent loves the child and has been compliant with her case plan. However, the court further found that respondent has had a long history of involvement with child protective services dating back to 1997 when a report of improper care and lack of supervision by respondent of her first-born child was received. Respondent's parental rights to that child and two later-born children were ultimately terminated. Respondent gave birth to a fourth child in 2001. A petition to terminate the parental rights as to that child was filed but respondent decided to relinquish her parental rights to that child to the foster parents prior to her parental rights being terminated. Throughout respondent's history of involvement with child protective services, respondent would comply with a case plan for periods of time, but then would relapse or be unable "to hold it together." This pattern repeated itself in the case at bar when respondent complied with her case plan and the child was returned to her home, but shortly thereafter, respondent severely beat the child. This history led the court to find that given respondent's "inability to cope with child rearing which resulted in severe beating of the juvenile, it is not in the juvenile's best interest to be reunited with this mother." We find no abuse of discretion.
Respondent next contends the trial court erred by failing to make findings of fact in accordance with N.C. Gen. Stat. § 7B-907 (2009). This statute mandates that at a permanency planning hearing:
[T]he 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. The court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition. At 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.
Id. (emphasis added). It is not necessary for the court's order to contain a formal listing of all of the factors as long as it contains "written findings regarding the relevant § 7B-907(b) factors." In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). The findings of fact must be sufficiently specific to permit the appellate court to determine whether the court complied with this requirement. In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004).
Petitioner responds by contending that this issue is not properly before this Court at this time because respondent did not have a right to appeal, and did not appeal, the permanency planning order. The right to appeal in a juvenile neglect, dependency or abuse proceeding is governed by N.C. Gen. Stat. § 7B-1001 (2009), which provides:
(a) In a juvenile matter under this Subchapter, appeal of a final order of the court in a juvenile matter shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed:
(1) Any order finding absence of jurisdiction.
(2) Any order, including the involuntary dismissal of a petition, which in effect determines the action and prevents a judgment from which appeal might be taken.
(3) Any initial order of disposition and the adjudication order upon which it is based.
(4) Any order, other than a nonsecure custody order, that changes legal custody of a juvenile.
(5) An order entered under G.S. 7B-507(c) with rights to appeal properly preserved as provided in that subsection. . . .
(6) Any order that terminates parental rights or denies a petition or motion to terminate parental rights.
The order under review is a combined permanency planning and initial disposition order, as no final disposition had been entered on the adjudication until entry of the subject order. The combining of the permanency planning portion of the order with the disposition order made the former portion appealable pursuant to N.C. Gen. Stat. § 7B-1001(a)(3). See In re J.V. M.V., ___ N.C. App. ___, ___, 679 S.E.2d 843, 844-45 (2009) (order modifying custody allowed a parent to appeal a permanency planning order (citing N.C. Gen. Stat. § 7B-1001(a)(4)). The notice of appeal references the permanent plan and placed petitioner on notice that issues may be raised with regard to that plan. We thus have jurisdiction to consider the merits of the permanency planning portion of the order.
With regard to the merits, respondent argues that the order fails to contain findings as to the possibility of relative placement or guardianship and as to any possible barriers to adoption. We are constrained to agree that the order does not contain specific findings as to these factors. However, in 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), superceded by statute as stated in In re A.B., 179 N.C. App. 605, 608 n. 2, 635 S.E.2d 11, 14 n. 2 (2006), this Court held the following:
Here, by changing the permanent plan for [the children] to adoption, the trial court necessarily determined it was not in the children's best interests to return home within the next six months, pursuant to § 7B-907(b)(1); that the children should remain in their current foster care placement, with respondent continuing to have visitation rights, pending their adoption, pursuant to § 7B-907(b)(2) and (4); that adoption should be pursued despite the presence of potential barriers thereto, pursuant to § 7B-907(b)(3); and that DSS has made reasonable efforts to implement the original permanent plan for the children, pursuant to § 7B-907(b)(5).
We do not interpret J.C.S. to mean that no additional findings are necessary if the trial court changes a permanent plan to adoption; rather, we interpret J.C.S. to mean that the trial court's findings of fact must support its conclusions of law, but the trial court is not required to specifically relate each finding to one of the statutory factors in N.C. Gen. Stat. § 907(b). In J.C.S., the Court distinguished the facts of that case from those in In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003), where the Court vacated a permanency order that stated one evidentiary fact and then simply incorporated the DSS and guardian ad litem reports. J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.
As in J.C.S., "[w]hile the permanency planning order does not contain a formal listing of the § 7B-907(b)(1)-(6) factors, expressly denominated as such, among its 2[0] comprehensive findings of fact, we conclude the trial court nevertheless did consider and make written findings regarding the relevant § 7B-907(b) factors." Id.; but see In re J.V. M.V., ___ N.C. App. at ___, 679 S.E.2d at 848 (vacating order where the trial court found that the child could not return home at the time of the hearing, but the trial court failed to make a finding as to whether the child could return home within the next six months); In re Z.J.T.B., 183 N.C. App. 380, 388, 645 S.E.2d 206, 212 (2007) (This Court held that "the trial court made no finding pursuant to section 7B-907(b)(4) as to `whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why.' In fact, the trial court's findings contain no description of the current placement of [the children]. Although the children's placement in a foster home is discussed in the guardian ad litem's report . . . the trial court failed to incorporate and adopt this report in its findings of fact.").
Here, the trial court did not make a specific finding regarding barriers to adoption; however, the trial court made findings regarding the child's need for speech therapy, and the fact that a psychological evaluation "indicated that the juvenile suffers from reactive attachment disorder of early childhood, disinherited type." Additionally, the trial court found:
It is believed that the juvenile's IQ test and her fine manual movements results were underestimated. She is scoring in the mild mentally retarded range but is believed to be understated and that the child is capable of higher cognitive performances. These test performances were likely negatively influenced by social immaturity and behavioral problems. Problems with inattention, problem behavior anxiety and early attachment and social immaturity have been noted during this current assessment. The report indicated the behavioral problems shown thus far are "not sufficient for an ADHD or an ODD diagnosis at the present. But, given her history and chaotic upbringing and physical abuse, she remains at risk for development of more severe diagnoses, development of anxiety disorder is possible and she remains at risk for development of learning problems and serious behaviors throughout her childhood, adolescence and as a young adult."
Though the findings do not specifically state that the trial court deemed these developmental and behavioral issues as barriers to adoption, we can infer that the trial court considered these issues as potential barriers and determined that adoption was, nevertheless, in the child's best interest. See In re L.B., 181 N.C. App. 174, 192, 639 S.E.2d 23, 32 (2007) (holding that "the requirements under section 7B-907(b)(3) are implicitly met by [certain findings of fact]" (emphasis added)).
With regard to Respondent's assertion that the trial court failed to make findings regarding other relatives who could potentially serve as guardians to the child, N.C. Gen. Stat. § 7B-907(b) only requires that written findings be made "regarding those [factors] that are relevant." Respondent admits in her brief that she failed to provide petitioner with the names of relatives for potential placement, and there is no indication in the record that any relatives had come forward to inquire about permanent placement. Accordingly, we hold that a finding as to placement of the child with a relative was not relevant here and the trial court did not err in failing to make findings as to that factor.
Affirmed.
Chief Judge MARTIN and Judge BEASLEY concur.
Report per Rule 30(e).