Summary
concluding that the respondent-mother waived her right to notice that a permanent plan would be created in a hearing scheduled only for adjudication and disposition where the mother and her counsel attended and participated in the hearing without objecting to the lack of notice required by N.C. Gen.Stat. § 7B–907
Summary of this case from In re J.P.Opinion
No. COA11–1325.
2012-04-17
In the Matter of C.W, J.J.W., J.C.W., J.C.F., A.F., T.F., and I.F., Minor children.
Alice A. Espenshade for Beaufort County Department of Social Services. J. Lee Gilliam for Respondent.
Appeal by Respondent from orders entered 29 July 2011 by Judge Michael A. Paul in Beaufort County District Court. Heard in the Court of Appeals 27 March 2012. Alice A. Espenshade for Beaufort County Department of Social Services. J. Lee Gilliam for Respondent.
Pamela Newell for Guardian ad Litem.
STEPHENS, Judge.
Respondent is the mother of C.W. (“Carol”), J.J.W. (“Jason”), J.C.W. (“Joel”), J.C.F. (“Jeffrey”), A.F. (“Allen”), T.F. (“Timothy”), and I.F. (“Irene”). On 17 August 2010, the Beaufort County Department of Social Services (“DSS”) filed petitions alleging that Carol was an abused and neglected juvenile, and that Jason, Joel, Jeffrey, Allen, Timothy, and Irene were neglected juveniles. DSS obtained nonsecure custody of the juveniles, and on 20 April 2011, filed an additional petition alleging that Jason and Joel were abused juveniles.
Pseudonyms are used to protect the juveniles' identities.
On 16 May 2011, an adjudicatory hearing was held in Beaufort County District Court, the Honorable Michael A. Paul presiding. At the hearing, the trial court adjudicated all seven juveniles as neglected. Additionally, the trial court concluded that: (1) Jason and Joel “are physically and sexually abused juveniles whose mother failed to shield them from the perpetrator of this abuse, despite her knowledge of that perpetrator's sadism and past behavior”; and (2) Carol “is a victim of sexual misconduct, but the perpetrator of that misconduct cannot be clearly identified from the evidence before this court.” Following the adjudications, the trial court entered four separate, but nearly identical, dispositional orders (one for Carol; one for Jason and Joel; one for Irene and Allen; and one for Timothy and Jeffrey) in which the court found that further reunification efforts were futile and ordered that custody remain with DSS. The court determined that “the plan most likely to result in permanence within a reasonable period of time is adoption.” Accordingly, the trial court ordered DSS to “work to clear and place” the juveniles for adoption, with preference to be given to a suitable relative.
Respondent filed written notice of appeal from the adjudication and dispositional orders on 17 August 2011, but did not initially serve a copy of the notice on the father of Carol, Jason, and Joel. DSS filed a motion to dismiss the appeal based on Respondent's failure to timely serve the father. On 11 October 2011, the trial court entered an order dismissing Respondent's appeal from the adjudication and dispositional orders entered as to Carol, Jason, and Joel. On 22 November 2011, Respondent filed with this Court a petition for writ of certiorari, seeking review of the dispositional orders entered as to Carol, Jason, and Joel. In our discretion, we allow the petition.
We note that the father of Carol, Jason, and Joel (1) has not been involved in the children's lives for approximately a decade, (2) was served with the first petition by publication because he could not be located at the time of filing, and (3) failed to contact his appointed attorney following the filing of the second petition.
Respondent first argues that the trial court erred by creating a permanent plan for the children at the 16 May 2011 hearing because that hearing was scheduled only for adjudication and disposition and Respondent did not have 15 days' notice that a permanent plan would be created at the hearing, as required by N.C. Gen.Stat. § 7B–907(a). Respondent, however, did not raise any objection at the hearing regarding improper notice. As previously held by this Court, “[a] party who is entitled to notice of a hearing waives such notice where they attend the hearing and participate in it without objecting to improper notice.” In re J.S., 165 N.C.App. 509, 514, 598 S.E.2d 658, 661–62 (2004). In In re J.S., the respondents contended that the trial court erred in holding a permanency planning hearing because the respondents “did not receive notice of the permanency planning hearing as required by N.C. Gen.Stat. § 7B–907(a) (requiring the clerk to give fifteen days['] notice of the hearing to the parents).” Id. This Court overruled respondents' argument in that case, holding that the respondents “waived any objection they might have had to improper notice” because “respondents and their attorneys were present at the hearing, they participated in the proceedings, and no one objected to improper notice.” Id.
Likewise, in this case, after the trial court announced that efforts at reunification should cease and counsel for DSS proposed that the permanent plan for the children should be adoption, counsel for Respondent raised no objection based on improper notice of a hearing on a permanent plan. Instead, counsel for Respondent requested to offer the testimony of the children's maternal aunt, whom Respondent's counsel indicated might be a prospective adoptive placement. Counsel for Respondent then examined the children's maternal aunt, as well as Respondent, regarding the aunt's potential as an adoptive parent. Thereafter, the trial court ordered that the permanent plan should be adoption. In line with our holding in In re J.S., we conclude that Respondent waived objection to improper notice of a hearing regarding a permanent plan when she and her counsel were present for, and participated without objection in, such a hearing before the trial court. Accordingly, Respondent's argument on this issue is overruled.
Respondent next argues that the trial court erred in each of the dispositional orders by failing to properly consider suitable relative placement for the juveniles. We agree.
Section 7B–903 requires that,
[i]n placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile.
N.C. Gen.Stat. § 7B–903 (a)(2)(c) (2011). This Court has previously held that to satisfy the requirements of section 7B903, the trial court must (1) draw factual conclusions and not simply recite evidence regarding potential relatives, and (2) make specific findings of fact explaining why placement with a relative would not be in the child's best interest if placement is not with the relative. In re L.L., 172 N.C.App. 689, 703–04, 616 S.E.2d 392, 400–01 (2005).
In the dispositional order for Carol, there are no findings regarding placement with any relatives. In the dispositional orders for all the juveniles except Carol, the trial court's consideration of relative placement was limited to the following:
10. The children's maternal aunt [ ] appeared at court to articulate her interest in becoming a permanent resource for some of the children of [Respondent]. She expressed affection for all of the children. She has brought the oldest child, [Carol,] to her home for occasional weekend visits. She frankly stated she was uncertain if she could manage [Jason] and [Joel's] behaviors. She stated the belief that she might be better able to take the four youngest children ... into her home.
Although the above-quoted finding recites certain facts about the maternal aunt's experiences in this case, the finding fails to draw any necessary factual conclusions as to whether the maternal aunt is willing and able to provide proper care and supervision for the juveniles. Further, there are no specific findings in any of the dispositional orders showing that placement with the maternal aunt, or any other relative, would not be in the juveniles' best interests . As section 7B–903(a)(2)(c) and this Court's interpretations of that statute make clear, a trial court placing juveniles outside of the home must make specific findings on whether a relative is willing and able to care for the juveniles. Because the trial court failed to make any such findings in this case, we are constrained to remand this matter to the trial court to amend the dispositional orders to include the required findings.
We note that each dispositional order includes a paragraph discussing “suitable relatives,” but only in the context of “prospective adoptive parents” and not as placement alternatives.
Finally, Respondent argues that the trial court erred regarding its orders on visitation. We agree. Section 7B–905(c) provides that any dispositional order that continues the minor child in a placement “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.” N.C. Gen.Stat. § 7B–905(c) (2011). This Court has stated that
[i]n 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, 522–23, 621 S.E.2d 647, 652 (2005) (quoting In re Stancil, 10 N.C.App. 545, 552, 179 S.E.2d 844, 849 (1971)) (bracket in original).
Here, the trial court made no finding that Respondent had forfeited her right to visitation or that it was in the juveniles' best interests to deny visitation. Therefore, the trial court was required to provide a plan containing a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised. Id. The trial court's visitation plans, however, simply provided that visitation “shall be arranged only as needed to promote the children's wellbeing.” The orders in this case do not comply with our holding in E.C. As such, the plans constitute an impermissible delegation of the court's authority. In re Stancil, 10 N.C.App. at 552, 179 S.E.2d at 849. Therefore, on remand, the trial court shall clarify Respondent's visitation rights.
Finally, we note that Respondent does not challenge any of the trial court's adjudications. Accordingly, the adjudications are affirmed.
AFFIRMED in part; REMANDED in part. Judges McGEE and HUNTER, ROBERT N., JR., concur.
Report per Rule 30(e).