Summary
holding that trial court's findings that parent could not care for her child "without constant assistance, and that such assistance [was] not available to her" supported the conclusion that the child was a dependent juvenile
Summary of this case from In Matter of A.M.Opinion
No. COA05-1510.
Filed December 5, 2006.
1. Child Abuse and Neglect — conclusion of dependency — findings — necessary assistance not available
The trial court did not abuse its discretion by concluding that respondent's children were dependent in that respondent is unable to provide for their care or supervision and lacks an appropriate alternative child care arrangement. Findings, deemed binding, that respondent could not care for her children without constant assistance and that such assistance is not available supported the conclusion.
2. Child Abuse and Neglect — dispositional hearing — evidence considered
The formal rules of evidence do not apply in a child dispositional hearing and the court may consider any evidence it finds relevant. The trial court here did not err by considering a DSS report and a psychological evaluation that were not properly admitted.
3. Child Abuse and Neglect — dependency proceeding — failure to enter timely order — no prejudice
There was no prejudice in a child dependency proceeding from failure to enter a timely order. The order here did not involve termination of parental rights, but changed the permanency plan from reunification to guardianship. Respondent's visitation rights were reduced, so that any delay benefitted her.
4. Child Abuse and Neglect — dependency proceeding — guardian ad litum for parent not appointed
The trial court did not err in a dependency proceeding by failing to appoint a guardian ad litum where mental illness was involved. The petition filed by DSS does not mention any developmental disabilities or limitations and, while respondent's brief mentions her learning limitations, she cites nothing to indicate that her inability to care for her children without constant assistance is due to mental health issues.
5. Child Abuse and Neglect — dependency proceeding — guardianship — financial considerations
The trial court did not violate N.C.G.S. § 7B-1111(a)(2) by halting reunification efforts between a mother and her children based upon the financial impracticality of twenty-four hour help for the mother; that statute governs termination of parental rights based upon poverty rather than guardianship, as here. The governing statutes for this case, N.C.G.S. § 7B-906 and N.C.G.S. § 7B-907, do not bar consideration of the cost of providing services deemed necessary for reunification when making a change to the permanency plan.
Judge WYNN concurring.
Judge TYSON dissenting.
Appeal by respondent mother from order entered 24 March 2005 by Judge James A. Jackson in the District Court in Gaston County. Heard in the Court of Appeals 15 August 2006.
Katharine Chester, for respondent mother. Jill Y. Sanchez, for petitioner Gaston County Department of Social Services.
On 30 April 2002, the Gaston County Department of Social Services ("DSS") filed a removal petition alleging that respondent mother had neglected her three children. Respondent mother stipulated to the dependency of the children, and the petition was amended to assert dependency in lieu of neglect. The court continued DSS's physical and legal custody of the children, and their placement with the maternal grandmother. Review hearings were held throughout 2003, during which time the permanency plan remained reunification with the mother for two of the children and placement with the father for the third child. At a May 2004 review hearing, the court ordered DSS to develop a plan for reunification.
Following a August 2004 permanency planning hearing, the court entered an order ceasing reunification efforts and changing the children's permanent plan to custody by a guardian or court-approved care-taker. The court entered the order on 24 March 2005. Respondent mother appeals. For the reasons discussed below, we affirm.
Respondent is the mother of three minor children: J.J.(1), a girl born in 1994, J.J.(2), a son born in 2000, and J.J.(3), another son, born in 2001. DSS removed the children in April 2002, alleging that respondent mother left cleaning products in the children's reach, left them unsupervised at home, allowed people on drugs and alcohol into the home, missed the children's medical appointments, and failed to keep her hearing aid working properly. On 24 August 2004, the court held a permanency planning hearing at which DSS presented no evidence. A social worker testified that respondent could manage her children with assistance.
Respondent first argues that the court erred in ceasing reunification efforts and changing the permanency plan to guardianship with a court-approved care-taker where all the evidence supported a conclusion that the children were not dependent at the time of the hearing. We disagree.
All dispositional orders following dependency hearings
must contain findings of fact based upon the credible evidence presented at the hearing. If the trial court's findings of fact are supported by competent evidence, they are conclusive on appeal. In a permanency planning hearing held pursuant to Chapter 7B, the trial court can only order the cessation of re-unification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) (internal citations omitted). We review the trial court's conclusions of law de novo. Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
A dependent juvenile is defined as:
A juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or 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) (2006). In entering an order placing a juvenile in the custody of a county department of social services, including a review order, the trial court may stop reunification efforts based on 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) (2006). Respondent contends that at the time of the permanency planning hearing, the children were no longer dependent.
The court made the following findings:
13. That the level of assistance necessary would require supervision of the Respondent/mother for 24 hours a day/7 days a week to ensure the safety and well being [sic] of the children. The Court in particular is concerned with the security of Ms. J and the children; their vulnerability; and the potential for third parties to disturb their well-being in an independent living environment.
14. That the CBS workers can be available for around the clock one-on-one supervision; however, DSS advises, and the ad litem does not have facts to the contrary, that Medicaid funding is not available for 24/7 care on a permanent basis.
* * *
16. DSS advises, and the guardian ad litem does not have facts to the contrary, that there are no known group home resources wherein Respondent/mother, Fay J, could live together with her children and can obtain the help necessary to assist the family at the required level of supervision.
Here, the court found that respondent could not care for her children without constant assistance, and that such assistance is not available to her. While respondent assigned error to several of the trial court's findings and lists them following the title of her first argument section, specifically findings 4, 5, 13-22 and 24, she does not discuss them in her argument. These assignments of error are presumed abandoned, and all of the court's findings of fact are deemed binding. The findings, included those quoted above, support the court's conclusion that the children were dependent in that respondent "is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9). The court did not abuse its discretion, and we overrule this assignment of error.
Respondent also contends that the court erred in considering the DSS report and the psychological evaluation because neither was properly admitted. At a dispositional hearing, the court "may consider any evidence . . . that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-901 (2006). Thus, the formal rules of evidence do not apply to such hearings. In re M.J.G., 168 N.C. App. 638, 648, 608 S.E.2d 813, 819 (2005). This assignment of error is without merit.
Respondent next argues that the court erred in failing to enter a timely order which prejudiced respondent. We do not agree.
"Any order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing." N.C. Gen. Stat. § 7B-907 (2006). An appellant must show prejudice in order to obtain appellate relief for violation of the 30 day period. In re J.L.K., 165 N.C. App. 311, 316, 598 S.E.2d 387, 391, disc, review denied, 359 N.C. 68, 604 S.E.2d 314 (2004). Here, the order states that the hearing came "on August 24 and 31, 2004. . . . and has been further heard and continued on various dates through December 9, 2004." (Emphasis supplied.) The court entered the order on 24 March 2005. The lapse between completion of the hearing and the entry of the order was approximately 3½ months, 2½ months longer than the statutory period. Respondent cites various termination of parental rights ("TPR") cases where prejudice was shown. See In re C.J. B., 171 N.C. App. 132, 614 S.E.2d 368 (2005); In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424, disc, review denied, 359 N.C. 632, 616 S.E.2d 538 (2005); In re T.L.T., 170 N.C. App. 430, 612 S.E.2d 436 (2005). Prejudice in these cases was associated with delay in the final settlement of custody and permanency plans where parental rights were being terminated in favor of adoption.
In the instant case, the order changed the permanency plan from reunification to guardianship, and respondent's visitation rights were not being terminated. In fact, because the order reduced her visitation rights, any delay in the entry of the order actually benefitted respondent in that the reduction of her visitation was delayed. Respondent asserts that her oldest child has had negative behaviors resulting from the delay, but the negative behavior began prior to the August 2004 review hearing. Respondent also asserts that she has become depressed; however, the psychological evaluation of respondent reveals that these symptoms began several months before the August 2004 review hearing. Respondent does not allege any specific prejudice occurring as a result of the 2½ month delay in entry of the court's order.
The dissent concludes that respondent did allege specific prejudice occurring as a result of the 2½ month delay in entry of the court's order. However, the only language on this issue in the mother's brief not directly discussing the mother's depression or the older child's negative behavior is the following:
In the case at Bar, "little more than common sense is necessary" to see that for the mother and these children, their wait has been unconscionable, [discussion of delay in Appellate Entries]. . . .
The trial court found as fact that, the "Respondent/mother, Faye J dearly loves her children and that the children dearly love her and have a strong bond with their mother." The court found, in fact, that the family is so strongly bonded that it "cannot envision that termination of Ms. J's parental right would be in the best interests of the children in this highly bonded family."
[The next paragraph discusses the daughter's negative behaviors]
[discussion of mother's mild depression] When she visited the children, "they loved and hugged on her." Up until the time of the hearing (from which appeal was taken), Faye and her children visited together two afternoons per week. At that hearing, though, visits were reduced to one (1) hour a week.
Considering the level of bonding among these family members, it takes "little more than common sense" to conclude that they have all been prejudiced by the delays in this case. The trial court must be reversed.
This language is essentially a statement that this family is strongly bonded, but without any allegation that the bonding has been harmed in any way by the 2½ month delay in entry of the order, and a statement that the mother's visitation with the children was reduced by the order. The dissent states that "[a]fter 24 August 2004, respondent and her children saw each other only `one (1) hour a week' supervised." However, the order was not signed and filed until March 2005. There is no indication in the briefs or order or record that the visitation change went into effect and was enforced before the order was signed and filed. The mother's brief indicates that "[a]t that hearing . . . visits were reduced," but does not state that this change actually went into effect or that she actually began seeing her children less. Thus, we conclude she suffered no prejudice from the delay.
Respondent also argues that the court erred in failing to appoint a guardian ad litem for respondent where mental illness was the basis of the allegations that the children were dependent. We disagree.
Our Courts have held that
the language of the statute itself . . . requires the appointment of a guardian ad litem only in cases where (1) it is alleged that a juvenile is dependent; and (2) the juvenile's dependency is alleged to be caused by a parent or guardian being " incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile." N.C. Gen. Stat. § 7B-602(b)(1) (2003). Thus, a trial court need not appoint a guardian ad litem pursuant to G.S. § 7B-602(b)(1) unless (1) the petition specifically alleges dependency; and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child.
In re H. W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (2004), cert. denied sub nom. In re H.W., 358 N.C. 543, 599 S.E.2d 46 (2004). The petition filed by DSS does not mention any developmental disabilities or limitations. While respondent's brief mentions her learning limitations (highly functioning mentally retarded) and DSS reports requiring her to cooperate with Developmental Disability Services, she cites nothing in the record indicating that her inability to care for her children without constant assistance is due to her mental health issues. This assignment of error is without merit.
The dissent asserts that the court is halting reunification efforts based on poverty in violation of N.C. Gen. Stat. § 7B-1111(a)(2):
The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
(Emphasis supplied). Here, the court did conclude that because the mother would need twenty-four hour a day help to cope with and care for her children, "reunification is possible but not financially practical." However, N.C. Gen. Stat. § 7B-1111 governs the termination of parental rights rather than changing a permanency plan to guardianship. Here, the court did not terminate the mother's parental rights. Instead, the hearing was a review hearing held pursuant to N.C. Gen. Stat. § 7B-906 (2003) and a permanency planning hearing held pursuant to N.C. Gen. Stat. § 7B-907 (2003). Neither of these statutes bars consideration of the cost of providing the services deemed necessary for reunification when making a change to the permanency plan.
Affirmed.
Judge WYNN concurs in a separate opinion.
Judge TYSON dissents in a separate opinion.