Opinion
No. 07-992.
Filed January 15, 2008.
Orange County No. 05 JA 111.
Appeal by respondent-mother from order entered 16 May 2007 by Judge Joseph Moody Buckner in Orange County District Court. Heard in the Court of Appeals 10 December 2007.
Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe, for Orange County Department of Social Services petitioner-appellee.
Annick Lenoir-Peek for respondent-mother appellant.
Respondent-mother appeals from an order of the trial court granting guardianship of the minor child J.S.R. to the child's paternal grandparents. We vacate the order of the trial court and remand for a new hearing.
Orange County Department of Social Services ("DSS") filed a juvenile petition on 14 October 2005 alleging that the minor child was neglected due to improper care and supervision and that he lived in an environment injurious to his health. Specifically, DSS alleged substance abuse by both parents and allegations of abuse and sexual abuse against the child's father. A nonsecure custody order was issued granting legal custody to DSS and placing the minor child with a grandparent. Following a hearing on 1 December 2005, the trial court entered an order on 27 December 2005 adjudicating J.S.R. dependent with the consent of the parties. The allegation of neglect was allowed to remain pending, custody was continued with DSS, and placement was continued with the child's paternal grandparents.
The father is not a party to this appeal.
Review orders were entered on 7 April 2006 and 24 July 2006 continuing custody with DSS and ordering DSS to continue to make reasonable efforts to eliminate the need for placement of the minor child. After a hearing on 2 November 2006, the trial court entered a permanency planning order on 13 December 2006, setting a concurrent permanent plan for J.R.S. of guardianship with his paternal grandparents and reunification with respondent. The trial court ordered DSS to make reasonable efforts to achieve the permanent plan. The matter was set for review on 1 February 2007 but was continued to 15 March 2007. At the March hearing, DSS presented two reports to the trial court and the guardian ad litem presented one report. No testimony was taken from any witnesses, and the hearing consisted of arguments and discussion from respondent's attorney, the guardian ad litem's attorney advocate, and the respondent-father's attorney.
The trial court issued a permanency planning order on 16 May 2007 changing the permanent plan and awarding guardianship of J.S.R. to his paternal grandparents. The trial court granted the grandparents the authority to make all medical and educational decisions for the juvenile, but ordered that visitation between respondent and J.S.R. should continue at a minimum of two hours per week. DSS was ordered to take whatever steps necessary to finalize the permanent plan for J.S.R. Respondent appealed from the order of the trial court.
Respondent raises three issues on appeal: (i) whether the trial court erred in entering a permanency planning order when respondent was not given adequate notice of reports from DSS and the guardian ad litem as required by the Orange County local rules; (ii) whether the trial court failed to hold a full hearing before entering the permanency planning order; and (iii) whether the trial court made its own independent findings of fact and conclusions of law.
As an initial matter, we note that an appeal may be taken in a juvenile matter from an order of the trial court, other than a nonsecure custody order, which changes the legal custody of the juvenile. N.C. Gen. Stat. § 7B-1001(a)(4) (2005). In the instant case the trial court changed legal custody of the minor child from DSS to the child's paternal grandparents in its 16 May 2007 permanency planning order.
We first address respondent's arguments that the trial court (1) failed to hold a full hearing and (2) did not make its own independent determination of the facts in this matter. "In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon[.]" N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2005). The trial court must, therefore, utilize the "`"processes of logical reasoning,"'" based on the evidence presented, and "find the ultimate facts essential to support the conclusions of law." In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations omitted). "Where the trial court's findings are supported by competent evidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary." In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004); see also N.C. Gen. Stat. § 7B-907(b) (2005) ("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."). The trial court "`may properly consider all written reports and materials submitted in connection with [juvenile] proceedings.'" In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003) (quoting In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638 (1983), modified and aff'd, 311 N.C. 586, 319 S.E.2d 567 (1984)). However, "the trial court may not delegate its fact finding duty." In re J.S., 165 N.C. App. at 511, 598 S.E.2d at 660. This means that "the trial court should not broadly incorporate . . . written reports from outside sources as its findings of fact." Id. Finally, statements by attorneys are not competent evidence. In re D.L., A.L., 166 N.C. App. 574, 582, 603 S.E.2d 376, 382 (2004).
Here, the trial court entered an order based solely on three written reports and oral arguments by the attorneys involved in the case. While the trial court had the authority to consider the information contained in the reports, the court neglected its duty to find the ultimate facts when it relied solely on those reports. Neither side presented any witnesses for testimony, the trial court did not examine any witnesses, and the sole information presented on respondent's behalf consisted of arguments by her attorney. This Court reversed a permanency planning order in In re D.L., A.L. where the only evidence offered at the hearing by the county department of social services was a written report. In re D.L., A.L., 166 N.C. App. at 583, 603 S.E.2d at 382. Although the respondent-mother testified in that case, she presented no testimony or evidence having to do with the permanent plan for the juvenile. Id. at 582, 603 S.E.2d at 382. We held in that case the trial court's findings were not supported by competent evidence and the findings did not support the conclusions of law, and the matter was remanded for a new hearing. Id. at 583, 603 S.E.2d at 382. In the instant case no testimony was presented at trial by respondent or DSS regarding the permanent plan and the only evidence presented to the court was in the form of written reports. Therefore, as in In re D.L., A.L., the order of the trial court must be reversed and the matter remanded for further proceedings consistent with this opinion.
Since we remand for a new hearing, we need not address respondent's remaining issue regarding noncompliance with the local rules. Further, any assignments of error not brought forth and argued by respondent are deemed abandoned and we decline to address them. N.C. R. App. P. 28(b)(6) (2007).
Reversed and remanded.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).