Opinion
No. COA11–1225.
2012-04-17
In the Matter of J.L.
Tonya L. Turner, for petitioner-appellee Pender County Department of Social Services. Mercedes O. Chut, for respondent-appellant mother.
Appeal by respondent mother from order entered 19 July 2011 by Judge R. Russell Davis in Pender County District Court. Heard in the Court of Appeals 27 March 2012. Tonya L. Turner, for petitioner-appellee Pender County Department of Social Services. Mercedes O. Chut, for respondent-appellant mother.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for guardian ad litem.
HUNTER, JR., ROBERT N., Judge.
Respondent mother appeals from the trial court's order ceasing reunification efforts, changing the juvenile J.L.'s permanent plan to guardianship, and appointing maternal relatives as guardians for the juvenile. In three arguments, respondent contends that the trial court failed to make adequate findings of fact to support its order. We affirm.
In April 2008, the Pender County Department of Social Services (“DSS”) first substantiated reports that the juvenile had been mistreated. As a result, the family received in-home services until September 2008. On 5 February 2009, DSS received another report that the juvenile was receiving improper discipline from her stepfather. A social worker observed bruises on the juvenile's face, shoulders, arms, legs, and back. Respondent told the social worker that she did not know the cause of the injuries. On 6 February 2009, DSS filed a petition alleging that the juvenile was abused and neglected, and the juvenile was placed in non-secure custody.
On 12 May 2009, the trial court adjudicated the juvenile abused and neglected. The order placed the juvenile in DSS custody and required respondent and the juvenile's stepfather to follow all recommendations from a parenting class and psychological assessment. The trial court also ordered the stepfather not to have visitation with the juvenile. The permanent plan for the juvenile remained reunification through several subsequent permanency planning hearings, but the juvenile was placed with a maternal cousin in an order entered 18 April 2011.
The trial court also adjudicated the juvenile's sibling neglected. The sibling, who has a different biological father and was later returned to respondent's custody, is not the subject of this appeal.
On 5 May 2011, DSS filed a motion for review, in which it sought “the Courts [sic] direction for intervention regarding the respondent mother's visitation.” DSS filed the motion as a result of respondent's allegations that the juvenile had been sexually abused while in the relative placement. Respondent claimed the juvenile suffered from genital pain and irritation. The juvenile's pediatrician conducted an examination and reported to DSS that there was nothing visibly wrong with the juvenile's genital area, but respondent continued to insist there was a problem. Because of the allegation, the placement family requested that DSS either change the permanent plan or pursue another placement option. Notice of hearing was served on respondent's attorney on 5 May 2011.
The matter came on for hearing on 27 May 2011. Social worker Alexandra Boone testified that, although it was in the trial court's discretion to continue the concurrent permanent plan of reunification, guardianship with the placement family was the best permanent plan to achieve stability for the juvenile. Ms. Boone testified that she was suspicious of respondent's allegations that the placement family had mistreated the juvenile. Further, respondent, even though she was on probation for assisting the stepfather in his abuse of the juvenile, had allowed other men to stay in the home with the juvenile. Ms. Boone also testified that the placement family understood the obligations of guardianship, including the financial burden, and were willing and able to take on those obligations. Respondent testified on her own behalf and denied that she took the juvenile to the pediatrician in order to manufacture abuse allegations or that she allowed the juvenile to have contact with the stepfather.
Ms. Boone testified that the current permanency plan was a concurrent plan of reunification and guardianship, but the prior orders indicate that the plan was reunification.
On 19 July 2011, the trial court entered an order relieving DSS of its duty to continue with reasonable efforts toward reunification, changing the permanent plan for the juvenile to guardianship, and appointing the placement family as the juvenile's guardians. Respondent gave written notice of appeal.
Respondent's first argument on appeal is that the trial court failed to make sufficient findings of fact in its order pursuant to N.C. Gen.Stat. §§ 7B–600 and 7B–907 to support changing the permanent plan to guardianship. We disagree.
The goal of the permanency planning hearing is “to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time.” N.C. Gen.Stat. § 7B–907(a) (2011). Accordingly, N.C. Gen.Stat. § 7B–907 requires that, if a juvenile is not returned home at the conclusion of a permanency planning hearing, the trial court must consider six criteria and “make written findings regarding those that are relevant[.]” N.C. Gen.Stat. § 7B–907(b) (2011). This Court has “not required trial courts to specifically identify the factors set forth in section 7B–907(b), provided that the record demonstrates that the factors were taken into account.” In re T.R.M., 188 N.C.App. 773, 779, 656 S.E.2d 626, 630 (2008).
Here, the trial court made numerous findings addressing the relevant statutory criteria, including:
15. That the family has been provided with unsupervised visits, overnight visits, and the assessment of service needs for the intensive in-home service was coordinated. Appointments were made with Pride of North Carolina for the intensive in-home services in December, 2010.....
16. That due to the mother's inconsistencies throughout the case from her choice of male companions, to not following through with individual therapy and allowing the children that are/were in the custody of the Pender County Department of Social Services to stay with her friends without approval all of which has been discussed with [respondent] numerous times she continues to not follow the recommendations. The lack of compliance and the inconsistencies denotes cause for concern and for the safety and well being [sic] of the above listed child. The mother's possible manipulation of the case and with the providers involved in the case poses much concern regarding the mother's ability to be truthful and report factual information to the agency or the guardian ad litem pertaining to the child's wellbeing.
....
22. That the permanent plan for this child should be changed to guardianship and the Court finds this to be the best plan to achieve a safe, permanent home for the child within a reasonable time period.
23. That it is not in the best interest of the minor child to return to the home of the parents within six months.
....
26. That the conditions that led to the custody of the children by the Pender County Department of Social Services and removal from the home of the parents continue to exist and return of this child to the home of the parents would be contrary to the welfare of the said child.
27. That the Pender County Department of Social Services is to make reasonable efforts to place the minor child in a timely manner in accordance with the permanency plan, to complete any steps necessary to finalize the permanent placement of the child and to document those actions in the child's case plan.
The trial court also added a relevant conclusion of law:
4. That it is in the best interest of the minor child that guardianship be granted to [the placement family]. That the [prospective guardians] are willing and able to provide proper care and supervision and a safe home for the minor child.
We hold that these findings demonstrate that the trial court considered the statutory criteria relevant to this case, including whether the juvenile could be returned to the home within six months, whether guardianship should be established, whether the juvenile should remain in the current placement, and whether DSS has made reasonable efforts to implement the permanency plan. Accordingly, respondent's argument is overruled.
In a related argument, respondent contends that the trial court failed to make sufficient findings to demonstrate that it had considered N.C. Gen.Stat. §§ 7B–907(f) and 7B–600(c) when it appointed guardians for the juvenile. We disagree.
N.C. Gen.Stat. § 7B–600(c) states that: “If the court appoints an individual guardian of the person pursuant to this section, the court shall verify that the person being appointed as guardian of the juvenile understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile.” N.C. Gen.Stat. § 7B–600(c) (2011). Similarly, N.C. Gen.Stat. § 7B–907(f) requires the court to “verify that the person ... being appointed as guardian of the juvenile understands the legal significance of the ... appointment and will have adequate resources to care appropriately for the juvenile.” N.C. Gen.Stat. § 7B–907(f) (2011). We note that neither N.C. Gen.Stat. § 7B–600(c) nor N.C. Gen.Stat. § 7B–907(f) requires that the court make any specific findings in order to make the verification. “We review a trial court's determination as to the best interest of the child for an abuse of discretion.” In re D.S.A., 181 N.C.App. 715, 720, 641 S.E.2d 18, 22 (2007).
Here, the trial court found that the prospective guardians were willing and able to provide proper care and supervision as well as a safe home for the juvenile. This finding, although labeled a conclusion of law, is supported by the evidence in the record and by the testimony presented at the hearing. See Zimmerman v. Appalachian State Univ., 149 N.C.App. 121, 131, 560 S.E.2d 374, 380 (2002) (holding this Court is “ ‘not bound by the label used by the trial court’ “ for findings of fact and conclusions of law (citation omitted)). Accordingly, respondent's argument lacks merit.
Next, we address respondent's contention that the trial court made insufficient findings of fact pursuant to N.C. Gen.Stat. § 7B–507(b) to support its order ceasing reunification efforts. We disagree.
“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:
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) (2011) (emphasis added).
“When 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) (citation omitted). Consequently, we recently held that N.C. Gen.Stat. § 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). Otherwise, “the court's findings do not support its conclusions of law that efforts to reunify respondent with her children should cease[.]” In re Weiler, 158 N.C.App. 473, 480, 581 S.E.2d 134, 138 (2003).
Here, the trial court did not enter such a finding of fact, but it did enter the following conclusion of law:
That pursuant to G.S. 7B–507, the Pender County Department of Social Services is no longer required to make reasonable efforts in this matter to reunify this family as those efforts would clearly be futile or would be inconsistent with the minor child's health and safety.
(emphasis added). Although the trial court did not make a specific finding of fact addressing the prongs of N.C. Gen.Stat. § 7B–507(b), this conclusion of law parallels the language of N.C. Gen.Stat. § 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. Accordingly, we hold that the trial court's findings of fact and conclusion of law that further reunification efforts would be futile satisfy N.C. Gen.Stat. § 7B–507(b). See I.R.C., ––– N.C.App. at ––––, 714 S.E.2d at 498–99 (holding that a conclusion of law supported by findings of fact satisfies N.C. Gen.Stat. § 7B–507(b)); In re T.R.M., ––– N .C.App. ––––, ––––, 702 S.E.2d 108, 111 (2010); In re N.G., 186 N.C.App. 1, 11, 650 S.E.2d 45, 52 (2007), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
Finally, we address respondent's arguments regarding specific findings of fact. First, respondent contends findings of fact five through seventeen and twenty-one are not proper findings of fact. In this section of her argument, respondent does not challenge the sufficiency of the evidence to support these findings. Rather, respondent complains that these findings merely recite the evidence or the testimony given at the hearing without adequately resolving the issues arising from the evidence.
“ ‘There are two kinds of facts: Ultimate [sic] facts, and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts.’ “ Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982) (citation omitted). “The trial court is required to find specific ultimate facts to support the judgment, and the facts found must be sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.” Montgomery v. Montgomery, 32 N.C.App. 154, 156–57, 231 S.E.2d 26, 28 (1977).
Here, findings of fact five through seventeen are proper findings because they are sufficient to support the judgment and to allow for appellate review. Respondent essentially contends that these findings are insufficient ultimate findings of fact. Contrary to respondent's argument, however, not every finding of fact must be an ultimate finding of fact. These findings are evidentiary facts that serve to provide the rationale supporting the trial court's ultimate findings. Furthermore, in addition to these findings, the trial court made findings addressing the ultimate issues, including findings of fact nineteen, twenty, and twenty-two through twenty-eight, as well as conclusions of law. Thus, we hold that findings five through seventeen are proper findings of fact.
As to finding of fact twenty-one, respondent contends the finding incorrectly shifts the burden of proof to her by stating, in part, “[respondent] has not provided enough evidence that she will continue to keep the child safe.” Contrary to respondent's position, however, both N.C. Gen.Stat. §§ 7B–906(b) and 907(c), which govern custody review and permanency planning hearings, provide that the court “shall” consider any evidence, including evidence from a parent, that will aid in its review. Neither statute places a burden on the petitioner to prove allegations, but both require the trial court to make a decision that protects the best interest of the juvenile based on the competent evidence. Thus, the trial court's finding does not establish that it shifted a burden to respondent but merely demonstrates that it complied with the statutes by considering all of the evidence presented.
Finally, respondent contends that findings of fact fifteen and sixteen are not supported by clear and convincing evidence, because no evidence indicates that respondent failed to follow through with family therapy or allowed inappropriate men to stay in her home with the juvenile after the juvenile was abused by the stepfather.
First, we note that the clear and convincing evidence standard applies to grounds to terminate a parent's parental rights, not to review of permanency planning hearings or custody review hearings. N.C. Gen.Stat. § 7B–1111(b) (2011). Instead, in reviewing a permanency planning order, “[w]e review ‘whether there is competent evidence in the record to support the findings and [whether] the findings support the conclusions of law. If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.’ “ In re T.P., ––– N.C.App. ––––, ––––, 718 S.E.2d 716, 718 (2011) (citation omitted). The same standard applies to custody orders. In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
In this case, we hold that findings fifteen and sixteen, specifically the aspects of those findings challenged by respondent, are supported by competent evidence. Ms. Boone testified that respondent had allowed boyfriends to stay in the home with the juvenile and that respondent had failed to interact with the juvenile during supervised visits. Respondent also missed scheduled in-home services appointments and failed to return phone calls intended to arrange further appointments. Only Ms. Boone's intervention prompted the possibility of additional services appointments. Findings of fact fifteen and sixteen thus constitute an accurate representation of Ms. Boone's testimony. Accordingly, we hold that this argument lacks merit and affirm the trial court's order.
Affirmed. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).