Opinion
No. COA11–1520.
2012-05-1
In the Matter of G.C., D.N.
J. Edward Yeager, Jr. for petitioner-appellee Martin County Department of Social Services. Pamela Newell for guardian ad litem.
Appeal by respondent from orders entered 15 September 2011 by Judge Christopher B. McLendon in Martin County District Court. Heard in the Court of Appeals 9 April 2012. J. Edward Yeager, Jr. for petitioner-appellee Martin County Department of Social Services. Pamela Newell for guardian ad litem.
Robin E. Strickland for respondent-appellant mother.
ERVIN, Judge.
Respondent–Mother Gwendolyn C. appeals from permanency planning orders granting custody of the minor children D.N., born in 1995, and G.C. , born in 2001, to certain of their relatives. Respondent–Mother argues that the trial court erred in the course of determining an appropriate schedule for her visits with the children. After careful consideration of Respondent–Mother's challenges to the trial court's orders in light of the record and the applicable law, we conclude that the trial court's orders should be affirmed.
D.N. will be called “Danny,” a pseudonym used for ease of reading and to protect the juvenile's privacy, throughout the remainder of this opinion.
C.G. will be called “Gary,” a pseudonym used for ease of reading and to protect the juvenile's privacy, throughout the remainder of this opinion.
I. Factual Background
The Martin County Department of Social Services initially became involved with the children in 2009 after receiving a report that Respondent–Mother had been engaging in substance abuse and had not been providing proper care for the children. On 6 July 2010, DSS filed petitions alleging that the children were neglected and dependent juveniles. After the court granted non-secure custody of the children to DSS, they were placed with relatives. On 29 October 2010, the trial court entered a consent order adjudicating the children to be dependent juveniles. The court subsequently held review hearings in November 2010 and February 2011.
A permanency planning hearing was held on 28 June 2011. On 15 September 2011, the trial court entered orders authorizing DSS to cease attempting to reunify the children with Respondent–Mother, adopting a permanent plan under which the children would be placed in the custody of relatives, and granting custody of Gary to his paternal grandparents and granting custody of Danny to a maternal aunt. Respondent–Mother noted an appeal to this Court from the trial courts' orders.
II. Legal Analysis
In challenging the trial court's orders, Respondent–Mother contends the trial court abused its discretion by failing to establish a sufficiently detailed visitation plan, by delegating too much authority to the custodians of the children during the process of establishing a visitation plan, and by failing to take proper account of Gary's wishes for increased visitation with Respondent–Mother. We do not find Respondent–Mother's arguments persuasive.
We review the visitation provisions of a trial court's dispositional order utilizing an abuse of discretion standard. In re C.M., 183 N.C.App. 207, 215, 644 S.E.2d 588, 595 (2007). An abuse of discretion exists in the event that a trial court's decision is “manifestly unsupported by reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). As a result, a trial court order reviewed under an abuse of discretion standard will not be overturned absent “a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id.
Any dispositional order that places a child 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). A trial court may not delegate the decision regarding visitation to a child's custodian. In re E.C., 174 N.C.App. 517, 522, 621 S.E.2d 647, 652 (2005). “An appropriate visitation plan must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised.” Id. at 523, 621 S.E.2d at 652.
In this case, the trial court approved the following visitation arrangement between Danny and Respondent–Mother:
2. That visitation by the mother with the juvenile shall take place every second Sunday [during a specified two hour period] in Cary, NC. Visitation shall be supervised by [the maternal aunt] or someone she deems appropriate.
Although we have omitted the exact visitation times specified in the trial court's order from this opinion in order to protect Danny's privacy, we note that there is a discrepancy concerning the time at which visitation is supposed to occur between the findings of fact and the decretal clauses. The language quoted in the text is taken from the decretal clauses.
3. Once a quarter, caregivers will arrange a supervised visit with both boys and their mother.
4. That reasonable telephonic communication with mother and child shall be allowed as long as it does not interfere with the extra curricular [sic] activities and school work of the child.
Similarly, the trial court approved the following arrangement for visitation between Gary and Respondent–Mother:
2. That visitation by the mother with the juvenile shall take place every third Sunday, in good weather at [a designated location] in Williamston, NC [during a specified two hour period] and in less desirable weather at a place to be arranged by the parties. Visitation shall be supervised by caregivers or someone they deem appropriate.
3. Once a quarter, caregivers will arrange a supervised visit with both boys and their mother.
4. That reasonable telephonic communication with mother and child shall be allowed as long as it does not interfere with the extra curricular [sic] activities and school work of the child.
Initially, Respondent–Mother argues that the trial court improperly allowed the custodians to determine the frequency and duration of visitation sessions. According to the information contained in the record, after determining that custody of the children should be awarded to the paternal grandparents and the maternal aunt, the trial court solicited input from the parties for use in fashioning an appropriate visitation schedule and gave Respondent–Mother an opportunity to comment on the proposed visitation schedule. Although Respondent–Mother's counsel did request that his client be awarded additional visitation, her counsel ultimately expressed agreement with the schedule announced by the trial court. The schedule adopted by the trial court specifies the time and place at which and manner in which visitation between Respondent–Mother and each of the children, individually, is supposed to occur. Although the trial court did not delineate the arrangements for the visits between Danny, Gary, and Respondent–Mother with a similar degree of specificity, it did mandate that such visits be held at least quarterly and allowed the custodians to agree upon a date and time for each visit. We cannot conclude that the adoption of such an approach constitutes an abuse of discretion given the trial court's finding that the custodians live in separate counties, that both boys are involved in extracurricular activities, and that Respondent–Mother does not have a stable living arrangement. Thus, given that the visitation schedule contained in the 15 September 2011 orders is sufficiently specific, we conclude that Respondent–Mother's initial challenge to the trial court's orders lacks merit.
Secondly, Respondent–Mother asserts that the discussion between the trial court and the parties which occurred at the 28 June 2011 hearing indicates the trial court allowed the custodians to determine the visitation plan incorporated in the 15 September 2011 orders instead of making an independent assessment of the best interests of the children. In support of this argument, Respondent–Mother notes that Gary, the younger child, appears to have expressed interest in increased contact with her and argues that the trial court failed to appropriately consider Gary's request. In addition, Respondent–Mother points out that the visitation schedule contained in the 15 September 2011 orders is essentially identical to that suggested by the children's custodians. Finally, Respondent–Mother contends that the visitation schedule adopted in the 15 September 2011 orders represents a seventy-five percent reduction in the extent of her visitation with the children despite the existence of evidence that Respondent–Mother's visits had been going well.
After carefully reviewing the record, we conclude that the trial court made an independent decision with respect to the issue of visitation after providing an appropriate opportunity for input from the parties. Although Gary, the younger child, was not present at the hearing, the trial judge and the parties communicated with the child by telephone. In addition, the trial court provided all parties with an adequate opportunity to be heard with respect to the issue of visitation. The record simply does not support Respondent–Mother's contention that the trial court failed to appropriately make an independent decision with respect to the issue of visitation. As a result, given that the trial court appears to have taken all relevant circumstances into account and provided an adequate opportunity to be heard to all parties, we conclude that Respondent–Mother's second challenge to the visitation provisions of the 15 September 2011 order lacks merit as well.
No issue concerning the appropriateness of the procedure used to contact Gary was raised in the parties' briefs, so we express no opinion about that subject.
III. Conclusion
Thus, for the reasons set forth above, we conclude that neither of Respondent–Mother's challenges to the visitation provisions of the 15 September 2011 orders have merit. As a result, the trial court's orders should be, and hereby are, affirmed.
AFFIRMED. Judges ROBERT C. HUNTER and STROUD concur.
Report per Rule 30(e).