Opinion
No. COA11–1596.
2012-05-15
In the Matter of A.C.C.
Hanna Frost Honeycutt for petitioner-appellee McDowell County Department of Social Services. Jon W. Myers for respondent-appellant father.
Appeal by respondent-father from order entered on or about 18 October 2011 by Judge Laura Powell in District Court, McDowell County. Heard in the Court of Appeals 17 April 2012. Hanna Frost Honeycutt for petitioner-appellee McDowell County Department of Social Services. Jon W. Myers for respondent-appellant father.
Pamela Newell for the guardian ad litem.
STROUD, Judge.
Respondent-father (“respondent”) appeals from the trial court's adjudication and disposition order ceasing reunification efforts with respondent and eliminating his visitation with Alice , his infant child. For the following reasons, we reverse in part the trial court's order and remand for further proceedings consistent with this opinion.
We will refer to the minor child, A.C.C., by the pseudonym Alice to protect the child's identity and for ease of reading.
I. Facts and background
On 11 July 2011, the McDowell County Department of Social Services (“DSS”) was notified that Alice, an infant child, was hospitalized with bruises. DSS filed a petition against respondent-father on 28 July 2011 alleging that Alice was abused and neglected.
The trial court conducted a combined adjudication and disposition hearing on 26 September 2011. Respondent attended the hearing but did not testify, while Alice's mother could not be located. DSS called two witnesses to testify at the hearing, detective Angie Fineberg with the Marion Police Department and Jodi Yaver, a nurse practitioner with Mission Children's Specialists. On or about 18 October 2011, the trial court entered an adjudication and disposition order concluding that Alice was abused and neglected.
Alice's mother is not a party to this appeal.
In its order, the trial court made the following findings of fact: that on 11 July 2011 respondent and mother were involved in a domestic altercation in which one of respondent's “blows” struck their two month old child Alice in the head. This was not the first altercation between respondent and mother, but this altercation ended when respondent and mother realized Alice was hurt after spotting blood on Alice's face. Respondent and mother had a friend take Alice to McDowell Hospital. Alice was subsequently transported to Memorial Mission Hospital and admitted to its pediatric intensive care unit. Alice had bruising on her head and was diagnosed with a subdural hematoma and a fractured skull which had been sustained during the domestic assault. Alice was released from the hospital after two days of observation and neurological testing and was placed in the care of her maternal great aunt and uncle (the “Tisdales”) .
A pseudonym.
Along with adjudicating Alice abused and neglected, pursuant to N .C. Gen.Stat. § 7B–101, the court concluded that custody of Alice should be awarded to the Tisdales. (R. 27–28). The trial court also ordered a permanent plan for reunification with the mother and required the mother to comply with her case plan, which had been established on 1 August 2011. The trial court also directed DSS to continue to make reasonable efforts with the mother to prevent or eliminate the need for placement of Alice outside her home. The mother was also awarded weekly supervised visitation with Alice. However, the trial court ordered that DSS cease reunification efforts with respondent after concluding that those efforts “would clearly be futile or would be inconsistent with the health and safety of [Alice].” The trial court also ordered that respondent “have no contact with [Alice].” Respondent appeals contending that the trial court erred (1) in ceasing reunification efforts with him and (2) in entering a deficient dispositional order.
II. Cessation of Reunification Efforts
Respondent first argues that the trial court erred by failing to make sufficient findings of fact to support its conclusion that reunification efforts with respondent should cease pursuant to N.C. Gen.Stat. § 7B–507(b)(1).
We have stated that “[a]ll dispositional orders of the trial court after abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing.” In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003) (citation omitted). “This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (citations omitted). “A trial court's findings of fact are binding on appeal if the findings are supported by competent evidence in the record.” Id. at 212, 644 S.E.2d at 593 (citations omitted). A trial court abuses its discretion when its “ruling is so arbitrary that it could not have been the result of a reasoned decision.” In re N.G., 186 N.C.App. 1, 10–11, 650 S.E.2d 45, 51 (2007) (citation and quotation marks omitted), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
Section 7B–507(b) of the Juvenile Code provides as follows:
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[.]
N.C. Gen.Stat. § 7B–507 (b)(1) (2011). N.C. Gen.Stat. § 7B–101(18) (2011) states that “[i]f a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.” (emphasis added). This Court has stated that “[w]hen a trial court is required to make findings of fact, it must make the findings of fact specially.” In re Harton, 156 N.C.App. 655, 660, 577 S.E .2d 334, 337 (2003) (citation omitted).
As to the trial court's decision to cease reunification efforts with respondent, we first note that finding of fact 26 states the following:
26. That MCDSS should not continue to make reasonable efforts to prevent or eliminate the need for placement as it relates to Respondent Father because such efforts clearly would be futile to [Alice's] need for a safe, permanent home within a reasonable period of time.
Despite the trial court's labeling, this finding of fact is a recitation of the statutory language of N.C. Gen.Stat. § 7B507 (b)(1), as stated above, and would be properly classified as a conclusion of law as it requires the application of legal principles. See Johnson v. Adolf, 149 N.C.App. 876, 878 n. 1, 561 S.E.2d 588, 589 n. 1 (2002) (noting that “[a]lthough this statement is included ... as a finding of fact, and thus inappropriately labeled, this Court will treat it as a conclusion of law”). It appears that the trial court combined the two reasons enumerated in N.C. Gen.Stat. § 7B–507 (b)(1) in this conclusion, stating that placement with respondent would be futile because of safety concerns with respondent and Alice's need for a permanent home. As noted above, the trial court also concluded that DSS was no longer required to make reasonable efforts to reunify respondent with Alice because “those efforts would clearly be futile or would be inconsistent with the health and safety of the juvenile.”
The only other relevant findings of fact that mention respondent are as follows:
9. That on July 11, 2011, Respondent Mother was involved in a domestic altercation with Respondent Father. The Respondent Mother was struck about the face and neck by the Respondent Father. One of the Respondent Father's blows struck the head of the juvenile. The altercation ended when Respondent Mother and Respondent Father realized the juvenile was hurt after spotting blood on the juveniles [sic] face. They had a friend transport the juvenile to the hospital.
10. That Detective Fineburg [sic] attempted to talk with Respondent Father at the hospital but he was too impaired to provide a coherent statement.
11. That this was not the first incident of domestic abuse between Respondent Mother and Respondent Father. Respondent Mother had previously left Respondent Father after an incident of domestic abuse but returned to the relationship a few days later.
....
13. That the juvenile was diagnosed with a subdural hematoma and fractured skull which was caused by the blow the juvenile sustained during the domestic assault between Respondent Father and Respondent Mother.
14. That it would take a great deal of force to cause a fracture in a two month old child's skull.
First, we note that these findings address the domestic abuse, the extent of the child's injury on 11 July 2011, and the father's condition at the hospital. Although the findings note that “this was not the first incident of domestic abuse” by respondent, there are no findings regarding the duration, extent, or frequency of this abuse or any attempts by DSS to provide services to respondent. There are no findings regarding any history of substance abuse by respondent or attempts at treatment or why there are still safety concerns with the father that would support a conclusion that reunification would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time. SeeN.C. Gen.Stat. § 7B–507(b)(1). We also note that the trial court relied only on N.C. Gen.Stat. § 7B–507(b)(1) and did not make any findings of fact or conclusions of law under N.C. Gen.Stat. § 7B–507(b)(2) that respondent “subjected the child to aggravated circumstances as defined in G.S. 7B–101[.]”
.N.C. Gen.Stat. § 7B–101(2) defines “aggravated circumstances” as “[a]ny circumstance attending to the commission of an act of abuse or neglect which increases its enormity or adds to its injurious consequences, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.” We express no opinion concerning whether respondent's actions would in fact constitute “aggravated circumstances” based upon the limited findings of fact before us.
In contrast, the trial court concluded that DSS should continue to make reasonable efforts to reunite Alice with the mother despite the findings of fact that she “admitting having had a history of marijuana, opiate and methamphetamine abuse[;]” Alice tested positive at birth for amphetamines; the mother had a habit of returning to an abusive relationship; and she was not present at the hearing. Additionally, there are no specific findings addressing any efforts made by DSS to contact or work with respondent which demonstrate that attempted reunification efforts would be futile. SeeN.C. Gen Stat. § 7B–507 (b)(1). We fail to see how the trial court could determine that “reasonable efforts[,]” seeN.C. Gen.Stat. § 7B–101(18), by DSS would be futile where DSS had not even attempted to evaluate or work with respondent. Although Alice's injuries were very serious, and respondent's actions on 11 July 2011 were undeniably egregious, cessation of reunification efforts under N.C. Gen.Stat. § 7B–507 (b)(1) must be based upon more than a single incident of the nature of the one at issue here. Therefore, the findings of fact do not support the trial court's conclusion ceasing reunification efforts with respondent based on N.C. Gen.Stat. § 7B–507 (b)(1).
Again, we note there was no contention that reunification efforts with respondent should cease under N.C. Gen.Stat. § 7B507 (b)(2).
Looking to facts in the record, we note that the only witnesses presented by DSS were the nurse practitioner and the detective. Their testimony focused on the extent of Alice's injuries on the day in question and their interactions with Alice, the mother, and respondent at the hospital. Neither gave any testimony regarding any efforts made by DSS in working with or contacting respondent or current concerns regarding respondent as to safety, substance abuse, or ability to care for Alice. As there was no evidence presented which may support the required findings of fact, we need not remand for additional findings of fact. Thus, as the trial court's findings of fact do not support its conclusion of law, we reverse the portion of the trial court's order ceasing reunification efforts with respondent.
III. Dispositional Order
Respondent also argues that the trial court entered a deficient dispositional order. Specifically, respondent contends that the dispositional order is deficient because it improperly establishes a permanency plan, it does not include findings supporting the termination of visitation, and fails to indicate what respondent has to do to regain custody.
A. Permanency plan
Respondent argues that the trial court erred in adopting a permanent plan for the mother at disposition. The trial court's order states the following:
3. That the best plan to achieve the permanent plan of reunification with[in] a reasonable time is for DSS to comply with the provisions of the case plan dated August 1, 2011. The case plan dated August 1, 2011 is attached hereto and incorporated herein by reference.
4. That to achieve the permanent plan of reunification within a reasonable time, Respondent Mother shall:
a. Comply with her case plan established on August 1, 2011 and follow all treatment recommendations following assessments. The case plan dated August 1, 2011 is attached hereto and incorporated herein by reference.
Accordingly, the trial court's adjudication order seems to be a permanency planning order. This Court has previously held that “N.C. Gen.Stat. §§ 7B–507 and 907 do not permit the trial court to enter a permanent plan for a juvenile during disposition” without the statutorily required notice for a permanency planning hearing. In re D.C., 183 N.C.App. 344, 356, 644 S.E.2d 640, 646–47 (2007). Here, DSS did not provide notice that the hearing would be a permanency planning hearing. Therefore, the trial court erred by adopting a permanent plan and we reverse this portion of the trial court's order.
B. Visitation
Respondent next argues that the trial court erred in ordering no visitation for him with Alice because it failed to make findings that visitation with respondent would harm Alice. “This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion.” In re C.M., 183 N.C.App. at 215, 644 S.E.2d at 595.N.C. Gen.Stat. § 7B–905(c) (2011) states in, pertinent part, that
[a]ny 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.
The trial court's order removed Alice from the custody of her parents as it provided that Alice would be “placed with” the Tisdales and awarded the Tisdales “custody” of Alice. “If a court finds that visitation would not be in the best interest and welfare of the child, the court may deny the parent visitation rights.” In re C.M., 198 N.C.App. 53, 66, 678 S.E.2d 794, 802 (2009) (citation omitted). Here, the trial court found “[t]hat Respondent Father should have no contact or visitation with [Alice]” and ordered that “Respondent Father shall have no contact with the juvenile.” We first note that the trial court made no findings as to whether denying visitation with respondent would be in the best interests of Alice. SeeN.C. Gen.Stat. § 7B–905(c). Also, the trial court's findings do not support denying all visitation, even limited or supervised visitation, pursuant to Alice's “health and safety [,]” see id., because, as discussed above, the findings show that there were safety issues as to both parents and the findings only address the parents' situation and Alice's condition on 11 July 2011, not any ongoing safety concerns with respondent that would support a conclusion that he should be denied any “contact” or visitation at the time of the hearing or in the future. Taking the provisions of the order in context, it appears that the trial court denied all contact between respondent and Alice because it had already determined that DSS should cease any efforts to reunify them, and we have already determined above that this conclusion was in error. Accordingly, the trial court erred by denying respondent visitation where the findings of fact do not support this result, and we reverse this portion of the trial court's order.
C. Regain Custody
DSS was ordered to continue to make “reasonable efforts” to eliminate the need for the juvenile's placement.
Respondent argues that the trial court erred in failing to order DSS to create a reunification plan with respondent so that he could regain custody of Alice. Pursuant to N.C. Gen.Stat. § 7B–906(c) (2011), the trial court is to conduct a review hearing 90 days after the disposition hearing and every six months thereafter. In that hearing the trial court “shall consider the following criteria and make written findings regarding those that are relevant:”
(1) Services which have been offered to reunite the family, or whether efforts to reunite the family clearly would be futile or inconsistent with the juvenile's safety and need for a safe, permanent home within a reasonable period of time.
(2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.
(3) Goals of the foster care placement and the appropriateness of the foster care plan.
(4) A new foster care plan, if continuation of care is sought, that addresses the role the current foster parent will play in the planning for the juvenile.
(5) Reports on the placements the juvenile has had and any services offered to the juvenile and the parent, guardian, custodian, or caretaker.
(6) An appropriate visitation plan.
(7) If the juvenile is 16 or 17 years of age, a report on an independent living assessment of the juvenile and, if appropriate, an independent living plan developed for the juvenile.
(8) When and if termination of parental rights should be considered.
(9) Any other criteria the court deems necessary.
As determined above, the trial court erred in ordering that reunification efforts with respondent should cease and that respondent should receive no visitation because the evidence in the record and the findings of facts do not support those conclusions. We remand to the trial court for a review hearing to consider any issues of reasonable efforts to reunite the family, pursuant to N.C. Gen.Stat. § 7B–507 and visitation, pursuant to N.C. Gen.Stat. § 7B–906 (c). Pursuant to N.C. Gen.Stat. § 7B–907, this review hearing could be designated as a permanency planning hearing, if proper notice is given, where the trial court could adopt a permanent plan in regard to respondent and/or Alice's mother. However, we stress that any conclusions regarding either continuing or ending reunification efforts or visitation must be supported by findings of fact based on evidence presented at the hearing.
For the foregoing reasons, we reversed in part the trial court's order and remand for further proceedings consistent with this opinion.
We express no opinion regarding the portions of the trial court's order regarding the mother, as she is not a party to this appeal.
REVERSED AND REMANDED. Judges HUNTER, Robert C. and ERVIN concur.
Report per Rule 30(e).