Opinion
No. COA15–786.
01-19-2016
In the Matter of D.D.
Assistant Appellant Defender Annick Lenoir–Peek for appellant-respondent-mother. Brooke Clark for Robeson County Department of Social Services. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell Armbruster, for guardian ad litem.
Assistant Appellant Defender Annick Lenoir–Peek for appellant-respondent-mother.
Brooke Clark for Robeson County Department of Social Services.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell Armbruster, for guardian ad litem.
Opinion
Appeal by respondent-mother from orders entered 22 April and 3 June 2015 by Judge J. Stanley Carmical in Robeson County District Court. Heard in the Court of Appeals 15 December 2015.
BRYANT, Judge.
As the findings of fact stated in the trial court's 22 April 2015 order do not address whether efforts to reunite the juvenile with respondent-mother would be futile or inconsistent with his need for a safe, permanent home or whether the juvenile's current placement is appropriate, in contravention of N.C. Gen.Stat. § 7B906.1, we vacate the order and remand the matter for further findings of fact. As the trial court's 3 June 2015 order is predicated on and to be considered in conjunction with the trial court's 22 April 2015 order, we also vacate the 3 June 2015 order.
On 17 March 2014, Robeson County Department of Social Services (DSS) filed a juvenile petition alleging that respondent-mother's then five year old son, David, was a neglected juvenile. An accompanying affidavit indicated that, following a 2 August 2013 domestic violence report, a DSS social worker began meeting with respondent-mother and Austin Blue, with whom respondent-mother had lived for four years. A subsequent trial court order indicated that a 14 March 2014 DSS report stated “there is a lot of drug activity in the home [of respondent-mother and Austin]. Reporter is very concerned for the safety of the children.” The report stated that Austin hit David on his face, back, and side; that on 7 June 2013, respondent-mother and children left Austin's home and respondent-mother filed a protective order against Austin. Respondent-mother filed the protective order after the following:
A pseudonym has been used throughout the opinion to protect the identity of the juvenile.
A 7 October 2014 trial court order states the name of David's biological father, but finds that “the whereabouts of the biological father ... are unknown.”
[Austin] beat [respondent-mother] and her daughter with his fist. The [respondent-]mother laid over her child to protect her. Mrs. Helen Miller, the paternal grandmother [of respondent-mother's daughter] stated that Austin had left [Mrs. Miller's] home and asked if the children could stay with her over the summer. [Respondent-]mother went to pick the children up and [ ] Austin [ ] let her in the home. After [respondent-]mother got the children in the car [Austin] came to the car with a gun and pointed it at [a friend of respondent-mother and the head of the friend's child] and made them get out of the car. [Austin] then got into the car and was hitting and kicking [respondent-mother] and her daughter. [Austin] hit [respondent-mother] in the head with a gun and held the gun to her head.
After adjudicating David a neglected child, the District Court entered an order for nonsecure custody of David, placing him with DSS. David was taken into custody and placed in a “kinship placement.” A guardian ad litem was appointed for David. The matter was heard before the Robeson County District Court on 28 May 2014, the Honorable J. Stanley Carmical, Judge presiding.
As noted above, Helen Miller and Yon Blue are not actually related to David, although he and respondent-mother had lived in their home along with Austin.
On 7 October 2014, the trial court issued an Order on Adjudication, finding David was a neglected juvenile pursuant to N.C. Gen.Stat. § 7B–101. The trial court made findings of fact citing the 14 March 2014 DSS report. The trial court found that respondent-mother had failed to be compliant with services to address domestic violence and substance abuse. The trial court found that Austin had been compliant with services to address domestic violence and substance abuse.
The trial court also entered a separate Order on Disposition. In its findings of fact, the trial court stated that David was then in the care and custody of DSS and resided in a kinship placement with the paternal grandmother of respondent-mother's daughter, Helen Miller, and her husband, Yon Blue. A visitation plan had been recommended by DSS and respondent-mother, but respondent-mother failed to comply. The court found that DSS had made reasonable efforts to eliminate the need for David's placement with DSS and to reunify the family. The trial court found that a social worker had been informed by a service provider agency that “[respondent-mother] is not compliant with services ... [and] [respondent-mother] has not been compliant with services.” (emphasis added). Further, the social worker had been informed that respondent-mother's medical doctor was recommended to monitor her medications and conduct drug screens on all of her blood work. The trial court found that respondent-mother does not have stable housing, is not compliant with mental health services and substance abuse treatment, and does not make herself available to social workers. The trial court awarded legal and physical custody of David to DSS and ordered that David remain in kinship placement. “[T]he plan of this child ... is to work towards a plan of reunification with [respondent-mother].” The court further ordered that respondent-mother comply with “services to address domestic violence, mental health, substance abuse, employment and housing.”
Respondent-mother and Austin are parents of a daughter who is not a subject of this appeal.
Following a 90 day review hearing, Judge Carmical entered an order finding that David resided in the home of non-relatives, Helen Miller and Yon Blue, and that in accordance with a visitation plan recommended by DSS, respondent-mother visited with David twice a month, for two hours each visit. The current plan for the child remained reunification with respondent-mother. “[Respondent-mother] agreed to address, [sic] substance abuse, domestic violence classes, mental health counseling and housing and employment.” The court concluded that, in David's best interest, his custody was to remain with DSS, and he was to remain in his current kinship placement.
In an order entered 27 February 2015, following a 10 December 2014 permanency planning hearing, the trial court concluded that David's plan of care was to remain reunification with respondent-mother, and he was to remain in his current placement at that time.
On 8 April 2015, Judge Carmical presided over a permanency planning hearing. Present at the hearing were a DSS social worker, an attorney representing DSS, David's guardian ad litem, respondent-mother and her attorney, and Helen Miller, David's non-relative caretaker. On 22 April 2015, the trial court entered an order stating the following findings of fact: respondent-mother's last visit with David occurred on 22 August 2014; DSS recommends that the permanent plan for David be changed from reunification with respondent-mother to guardianship with a court-approved caretaker, non-relatives Helen Miller and Yon Blue. The trial court found that respondent-mother was receiving substance abuse treatment at W & B Healthcare but had not been in treatment since September 2014. The trial court found that respondent-mother stated she had not gone to class because she needed to heal after hurting her back and leg. Respondent-mother completed parenting classes on 2 September 2014 and stated that domestic violence issues were addressed during the class. Respondent-mother completed her last drug screen on 2 September 2014. “[Respondent-mother] has applied for SSI and is attempting to locate housing through the Housing Authority.” The court concluded that to return David to respondent-mother would be contrary to David's welfare, and it was in David's best interest that legal guardianship be awarded to a court-approved caretaker. Helen Miller testified that she was willing to accept guardianship and the court awarded her legal guardianship of David. The court ordered that the matter return to court to allow Yon Blue to be present and testify that he was willing to accept guardianship of David. Yon Blue appeared in court on 20 May 2015 and testified that he was willing to accept guardianship of David.
On 3 June 2015, the trial court entered an order finding that Yon Blue had testified to his willingness to accept guardianship of David and that the court awarded guardianship of David to Helen Miller and Yon Blue. “[T]his order will coincide with the order that was entered on April 22, 2015.”
Respondent-mother appealed both the 22 April and 3 June 2015 orders.
On appeal, respondent-mother raises the following issues: whether the trial court's 22 April 2015 order fails to meet criteria set out in N.C. Gen.Stat. §§ 7B–905.1 and 7B–906.1. Additionally, respondent-mother challenges the trial court's 3 June 2015 order as internally inconsistent and unlawfully entered. Because we find that the section 7B–906.1 issue is essentially dispositive of the matter, we focus our attention mainly on the arguments presented in that regard.
Section 7B–906.1
Respondent mother argues that the trial court's 22 April 2015 order violates N.C. Gen.Stat. § 7B–906.1 because it awards guardianship to an individual without making appropriate findings of fact and disregards specific concerns about violence and danger to the minor child in the home of the guardian. Specifically, respondent-mother argues that the trial court's findings are not ultimate facts, but rather a recitation of allegations, and the findings of fact do not support the conclusions of law. Respondent-mother also contends that the order does not address the report that Helen Miller drove Austin to respondent-mother's home on 2 March 2015, where Austin shot respondent-mother multiple times, and that respondent-mother was more compliant with her case plan than she was given credit for. DSS concedes the trial court's 22 April 2015 order fails to reflect the findings of fact required by N .C. Gen.Stat. § 7B–906.1, and we agree.
“Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law.” In re C.M., 230 N.C.App. 193, 194, 750 S.E.2d 541, 542 (2013) (citation and quotations omitted).
Pursuant to N.C. Gen.Stat. § 7B–906.1,
(a) In any case where custody is removed from a parent, guardian, or custodian, the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter....
...
(d) At each hearing, the court shall consider the following criteria and make written findings regarding those that are relevant:
...
(3) Whether efforts to reunite the juvenile with either parent clearly would be futile or inconsistent with the juvenile's safety and need for a safe, permanent home within a reasonable period of time....
(4) Reports on the placements the juvenile has had, the appropriateness of the juvenile's current foster care placement....
N.C. Gen.Stat. § 7B–906.1(a), (d) (2013).
The order makes almost all of its substantive “findings of fact” by reference to other documents which are attached as exhibits, as follows:
7. That a Timeline, marked as DSS Exhibit “A”, was admitted into evidence.
8. That a Court Report, marked as DSS Exhibit “B”, was admitted into evidence.
9. That a family risk reassessment, marked as DSS Exhibit “C”, was admitted into evidence.
10. That a family reunification assessment, marked as
11. That a family assessment of strengths and needs, marked as DSS Exhibit “E” was admitted Into evidence.
12. That a Guardian ad Litem Court Report, marked as GAL Exhibit “A”, was admitted into evidence.
The trial court then made the following findings of fact, which would more properly be considered as conclusions of law, in the trial court's 22 April 2015 order:
13. That the [c]ourt finds that return of this Child to the home of the [respondent-]mother would be contrary to the welfare of the said Child.
14. That it is in the best interest of [David] that legal guardianship be awarded to Helen Miller and Yon Blue.
Absent from the order are findings of fact which address whether efforts to reunite David with respondent-mother clearly would be futile or inconsistent with his safety or need for a safe, permanent home within a reasonable period of time or which support a conclusion that the home of Helen Miller and Yon Blue is an appropriate placement for David.
We first note that this order goes far beyond the “verbatim recitations” of allegations of a petition which this court has disapproved in other cases and actually fails to make any findings of fact at all, since almost all of the substantive findings are merely a listing of various documents admitted into evidence.
We have held that “[w]hen a trial court is required to make findings of fact, it must find the facts specially.” In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003) (internal citations and quotations omitted).
“Thus, the trial court must, through ‘processes of logical reasoning,’ based on the evidentiary facts before it, ‘find the ultimate facts essential to support the conclusions of law.’ “ In re O.W., 164 N.C.App. 699, 702, 596 S.E.2d 851, 853 (2004) (quoting Harton, 156 N.C.App. at 660, 577 S.E.2d at 337). The findings “must be the ‘specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.’ “ In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted). As a result of the foregoing principles, this Court has repeatedly stated that “the trial court's findings must consist of more than a recitation of the allegations” contained in the juvenile petition. O.W., 164 N.C.App. at 702, 596 S.E.2d at 853.
Many of the trial court's findings are verbatim recitations of YFS's allegations in the petition. “[I]t is not the role of the trial court as fact finder to simply restate the testimony given.” Id. at 703, 596 S.E.2d at 854. Regurgitated allegations do not reflect a reconciliation and adjudication of all the evidence by the trial court to allow this Court to determine whether sufficient findings of fact are supported by clear, cogent and convincing evidence. Without adjudicated findings of fact this Court cannot conduct a meaningful review of the conclusions of law and “test the correctness of [the trial court's] judgment.” Appalachian Poster Adver. Co. v. Harrington, 89 N.C.App. 476, 480, 366 S.E.2d 705, 707 (1988).
In re M.K. (I), ––– N.C.App. ––––, ––––, 773 S.E.2d 535, 538 (2015). The order does not even indicate which of the documents referenced as being admitted into evidence it relied upon or found as either credible or not credible.
The record indicates that respondent-mother and David lived with Austin, Helen Miller, and Yon Blue for four years. In the 7 October 2014 Order of Adjudication, the trial court found that respondent-mother left Austin's home after it was alleged that Austin hit David three or four times and beat respondent-mother and respondent-mother's daughter with his fists. Following respondent-mother's departure, Austin's mother, Helen Miller, informed respondent-mother that Austin had left the home and asked if respondent-mother's children could spend the summer with her. When respondent-mother returned to Helen Miller's home to pick the children up, Austin was present. Respondent-mother had been accompanied to Mrs. Miller's home by another woman and child, whom Austin threatened at gun point before he “hit and kicked” respondent-mother and her daughter.
A DSS report admitted into evidence during the 10 December 2014 permanency planning hearing included a summary of the 14 March 2014 DSS investigation report relating to the general presence of drug activity in the home, a discharge of firearms, physical confrontation between adults, and specific instances during which Austin struck David about his face and body, struck respondent-mother leaving bruises on her arms and legs, and threw his and respondent-mother's two year old daughter out of a door.
Testimony was presented during the 8 April 2015 permanency planning hearing by social worker Natasha Rogers with DSS and respondent-mother in regard to a violent encounter that took place on 2 March 2015 at the residence of respondent-mother. On that day, Helen Miller drove her son, Austin, to respondent-mother's home, where Austin forced his way inside the home and “jumped on [respondent-mother].” During the encounter, Austin shot respondent-mother multiple times. As a result, respondent-mother was hospitalized and “in ICU for 17 days.” Following her release from the hospital, respondent-mother moved to Charlotte.
This Court is unable to ascertain the existence of competent evidence in the record to support the trial court's conclusion that it was in David's best interests that his placement be with guardian Helen Miller. There are no findings of fact regarding the appropriateness of David's current placement, as required by N.C. Gen.Stat. § 7B–906.1(a) and (d). In fact, many pertinent findings appear to support why the current placement may not be appropriate. The evidence of repeated instances of shootings and violence that occurred either at Helen Miller's home or in her presence are particularly disturbing. Therefore, as the 22 April 2015 order does not contain the required findings of fact, as set out in N.C. Gen.Stat. § 7B–906.1, it must be vacated. See In re C.M., 230 N.C.App. at 195, 750 S.E.2d at 542–43 (reversing and remanding trial court order awarding guardianship where evidence did not support the findings of fact). Accordingly, we vacate the trial court's 22 April 2015 order and remand the matter for entry of appropriate findings of fact pursuant to relevant factors as set out in section 7B–906.1.
Order entered 3 June 2015
We note respondent-mother's argument that the trial court's order entered 3 June 2015 is invalid as entered. However, because the trial court's 3 June 2015 order was intended to merge or be considered in conjunction with the court's 22 April 2015 order, and because we have vacated the 22 April order, we vacate the trial court's 3 June 2015 order and need not further address respondent-mother's arguments.
Section 7B–905.1
As it may arise in a subsequent proceeding, we note that in one of her arguments presented on appeal, respondent-mother directed our attention to a discrepancy between the oral rendering of the trial court's disposition made during the 8 April 2015 permanency planning hearing and the written order entered 22 April 2015. Specifically, respondent-mother contends that the 22 April 2015 order fails to include a visitation schedule as had been pronounced during the hearing. We note that the announcement of an order in court is only rendition of the order and not entry. In re Estate of Walker, 113 N.C.App. 419, 420, 438 S.E.2d 426, 427 (1994). The final order as written, signed, and filed-the order as entered-is the controlling order, not the oral rendition. See Oltmanns v. Oltmanns, –––– N.C.App. ––––, ––––, 773 S.E.2d 347, 351 (2015) (“[T]he written entry of judgment is the controlling event for purposes of appellate review[.]”). But here it appears that the visitation provisions were inadvertently omitted from the order as entered, and both DSS and the guardian ad litem concede the failure of the written order to address visitation was error, as it violated N.C. Gen.Stat. § 7B–905.1. Therefore, on remand, should the trial court's order include visitation, it should be accurately reflected in the written order in sufficient detail as required by law.
Pursuant to General Statutes, section 7B–905.1,
(a) An order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile consistent with the juvenile's health and safety....
...
(c) If the juvenile is placed or continued in the custody or guardianship of a relative or other suitable person, any order providing for visitation shall specify the minimum frequency and length of the visits and whether the visits shall be supervised....
(d) If the court retains jurisdiction, all parties shall be informed of the right to file a motion for review of any visitation plan entered pursuant to this section.
N.C. Gen.Stat. § 7B–905.1(a),(c),(d) (2013).
VACATED AND REMANDED.
Judges STROUD and McCULLOUGH concur.
Report per Rule 30(e).