Opinion
No. COA11–1250.
2012-05-1
In the Matter of A.N.M.
Mary G. Holliday for Jackson County Department of Social Services. J. Thomas Diepenbrock for Respondent.
Appeal by Respondent from orders entered 3 August 2011 by Judge Roy Wijewickrama in Jackson County District Court. Heard in the Court of Appeals 3 April 2012. Mary G. Holliday for Jackson County Department of Social Services. J. Thomas Diepenbrock for Respondent.
Penry Reimann PLLC, by Neil A. Riemann, for Guardian ad Litem.
STEPHENS, Judge.
Respondent is the father of A.N.M. (“Ariel”), a 15–month–old girl. On 9 May 2011, when Ariel was four months old, the Jackson County Department of Social Services (“DSS”) received a report alleging that during an argument between Respondent and Ariel's mother, Respondent twisted Ariel's mother's arm, leaving it swollen and red. After threatening to take Ariel away so that her mother would never see her again, Respondent drove away with Ariel; Ariel's mother planned to press charges based on the incident.
“Ariel” is a pseudonym used to protect the juvenile's identity.
On 13 May 2011, Ariel's mother obtained a domestic violence protective order. However, that same day, DSS received a report that Respondent had shot and killed Ariel's mother while Ariel was present. Respondent fled, but was arrested later that day and charged with first-degree murder of Ariel's mother. Respondent was denied bail and remains incarcerated.
DSS subsequently filed a petition alleging that Ariel was abused, neglected, and dependent, and Ariel was placed in nonsecure custody with DSS. On 19 May 2011, Ariel's maternal great aunt and uncle filed a motion to intervene in the matter. On 25 May 2011, Ariel's paternal grandparents filed a motion to intervene.
Following a 14 July 2011 hearing in Jackson County District Court, the Honorable Roy Wijewickrama presiding, the trial court adjudicated Ariel neglected and dependent. Between the adjudication and dispositional phases of the hearing, the trial court denied both motions to intervene. Thereafter, the court entered a dispositional order, in which the court ordered DSS to cease reunification efforts with Respondent and approved placement with Ariel's maternal great aunt and uncle. Respondent appeals.
On appeal, Respondent argues that the trial court's findings of fact do not support its conclusions that Ariel was neglected and dependent. Upon review of the challenged conclusions of law, we disagree with Respondent and conclude that those conclusions are supported by the findings of fact. See In re M.J.G., 168 N.C.App. 638, 643, 608 S.E.2d 813, 816 (2005) (stating that the standard of review for a challenge to a trial court's conclusions of law in the adjudication context is whether those conclusions are supported by the court's findings of fact).
As for the trial court's determination regarding dependency, Respondent contends the court's conclusion that Ariel is dependent in that she “has no parent responsible for her care and supervision” is unsupported because the trial court “did not make sufficient findings that Respondent[ ] lacked an appropriate alternative child care arrangement.” As support for the requirement that the court should have made a finding as to alternative child care arrangements, Respondent cites this Court's decision in In re P.M., 169 N.C.App. 423, 610 S.E.2d 403 (2005), as well as the decision in In re K.D., 178 N.C.App. 322, 631 S.E.2d 150 (2006), which applied In re P.M.
In In re P.M., this Court held:
A dependent child is defined as “[a] juvenile in need of assistance or placement because ... [the juvenile's] parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.Stat. § 7B–101(9) (2003). Under this definition, the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.
169 N.C.App. at 427, 610 S.E.2d at 406 (emphasis added) (brackets and ellipsis in original). As is clear from the excerpt, the holding in the second sentence that a trial court “must address” “the availability to the parent of alternative child care arrangements” applies only to the definition of “dependent child” used in the first sentence. That definition, however, is one of two definitions of “dependent child” found in section 7B–101(9). In full, section 7B–101(9) provides that a “dependent child” is
[a] juvenile [ (1) ] in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or [ (2) ] whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.
N.C. Gen.Stat. § 7B–101(9) (2011) (emphasis added). In this case, the trial court adjudicated Ariel as dependent because she “has no parent responsible for her care and supervision.” As this language tracks the first definition in section 7B–101(9) and does not apply the second definition, our holding in In re P.M., which specifically applies to the second definition, is inapplicable here. Thus, the trial court was not required to address the availability of alternative child care arrangements as argued by Respondent. Respondent's argument is, therefore, overruled.
Regarding the determination on neglect, Respondent contends the trial court's conclusion that Ariel is neglected in that she “lives in an environment injurious to her welfare” is unsupported because the court “did not make findings on how the alleged injurious environment caused physical, mental, or emotional impairment to [Ariel] or created a substantial risk of harm.” Assuming Respondent is correct that the trial court was required to make a finding that the injurious environment created a substantial risk of injury, we conclude that the trial court's failure to make such a finding does not warrant reversal in this case because the evidence presented to the trial court supports a finding that there was a substantial risk of injury. See In re Safriet, 112 N.C.App. 747, 753, 436 S.E.2d 898, 902 (1993) (citing Harris v. N.C. Farm Bureau Mut. Ins. Co., 91 N.C.App. 147, 150, 370 S.E.2d 700, 702 (1988), for the proposition that remand because of inadequate findings of fact is unnecessary where facts are undisputed and only one inference can be drawn from undisputed facts, and holding that the trial court did not err even though it failed to make any findings of fact concerning the detrimental effect of the alleged neglect because all the evidence supported such a finding). The undisputed evidence supporting a finding of substantial risk of injury was as follows: Respondent was charged with the murder of Ariel's mother; Ariel was present in the home when Respondent allegedly shot and killed her mother; and Ariel's mother obtained a domestic violence protective order against Respondent before she was murdered. Based on the foregoing, we hold that the trial court did not err in adjudicating Ariel as a neglected juvenile. Respondent's argument is overruled.
Respondent further argues that the adjudication order erroneously contains findings of fact and conclusions of law related to the cessation of reunification efforts that should have been included only in the dispositional order. While we agree with Respondent that the trial court made unnecessary findings and conclusions in the adjudication order related to N.C. Gen.Stat. § 7B–507(b), which dictates the findings a trial court must make in an order ceasing reunification efforts and which applies to “an order for continued nonsecure custody, a dispositional order, or a review order,” N .C. Gen.Stat. § 7B–507(b) (2011) (emphasis added), we cannot conclude that the inclusion of these unnecessary findings and conclusions in the court's order on adjuciation warrants reversal. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding that “erroneous findings unnecessary to the determination do not constitute reversible error” where there are “ample other findings of fact [to] support an adjudication”). As discussed supra, the other findings and conclusions competently support the trial court's adjudication. Further, we note that (1) the trial court made similar, and more extensive, findings of fact and conclusions of law in the dispositional order; and (2) the trial court correctly identified the nature of the proceeding and the required evidentiary standard in the adjudication order. As Respondent has failed to show prejudice, and none appears to this Court, we hold that the trial court's extraneous findings and conclusions in its adjudication order do not constitute reversible error.
Finally, Respondent argues that the dispositional order contains insufficient findings of fact to support the cessation of reunification efforts. This argument wholly lacks merit.
“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).
In relevant part, Chapter 7B requires 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) (emphasis added).
“When 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). Consequently, we have held that section 7B–507 (b)(1) requires the trial court to “ultimately find ... that: (1) attempted reunification efforts would be futile, or (2) reunification would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.” In re I.R.C., –––N.C.App. ––––, ––––, 714 S.E.2d 495, 498 (2011).
Here, the trial court concluded
[t]hat [DSS] should not continue to make reasonable efforts to prevent or eliminate the need for placement of [Ariel] and to reunify the family following placement. Further efforts to reunify [Ariel] with [ ] Respondent [ ] in this matter would be futile or inconsistent with [Ariel's] need for a safe, permanent home within a reasonable period of time.
(Emphasis added). Although the court did not make an identical “ultimate” finding of fact, this conclusion properly parallels the language of section 7B–507(b)(1). Further, the trial court's conclusion that additional efforts toward reunification would be futile is supported by numerous findings of fact, including findings that Respondent was incarcerated and awaiting trial for the first-degree murder of Ariel's mother. Accordingly, we hold that the trial court's findings of fact and the court's conclusion of law that further reunification efforts would be futile satisfy section 7B–507(b). Cf. id. (recognizing that “this Court has upheld dispositional orders where the trial court made findings of fact that supported an ultimate conclusion of law by the trial court that reunification efforts would be futile or inconsistent with the juvenile[']s health, safety, and need for a safe, permanent home”). Respondent's argument is overruled.
Based on the foregoing, we affirm the trial court's dispositional order and the adjudication order on which it is based.
AFFIRMED. Judges McGEE and HUNTER, ROBERT N., JR. concur.
Report per Rule 30(e).