Opinion
No. COA12–1497.
2013-06-4
In re K.C., H.C., C.C., and S.C.
Lawrence, Best & Associates, P.A., by Natarlin R. Best, for Edgecombe County Department of Social Services, Petitioner–Appellee. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Respondent–Appellant Mother.
Appeal by Respondent from order entered 20 September 2012 by Judge William C. Farris in District Court, Edgecombe County. Heard in the Court of Appeals 7 May 2013. Lawrence, Best & Associates, P.A., by Natarlin R. Best, for Edgecombe County Department of Social Services, Petitioner–Appellee. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for Respondent–Appellant Mother.
Dennis D. Maxwell, Jr. for Guardian ad Litem.
McGEE, Judge.
The Edgecombe County Department of Social Services (DSS) first became involved in this matter on 29 September 2011. DSS filed a petition on 21 February 2012 (the petition) alleging that Respondent's four children (the juveniles) were neglected and dependent. DSS obtained an order for nonsecure custody on that same date. Pursuant to the order for nonsecure custody, DSS placed the juveniles with the parents of Respondent's husband (the stepfather). At the time DSS filed the petition, Respondent, the juveniles, and the stepfather were residing with the stepfather's parents. The petition alleged that Respondent and the stepfather abused drugs around the juveniles and committed domestic violence against each other. The petition further alleged that Respondent and the stepfather lacked stable housing, and that the juveniles, while under Respondent's care, did not attend school regularly. An order continuing custody with DSS was entered on 29 March 2012, and, in DSS's discretion, placed the juveniles with the stepfather's parents. Visitation between Respondent and the juveniles was to be supervised by the stepfather's parents, or another person designated by DSS.
In April 2012, upon Respondent's request, the juveniles were placed with Respondent's cousin. However, the juveniles were removed from that placement and placed in foster care when Respondent's cousin was arrested for drug trafficking in May 2012.
A hearing on the petition alleging neglect and dependence was conducted on 26 June 2012. The trial court entered its adjudication and disposition order on 1 August 2012 and entered an amended adjudication and disposition order on 20 September 2012. In the amended order, the trial court adjudicated the juveniles neglected and continued placement of the juveniles in licensed foster homes. Respondent appeals.
I.
“The role of this Court in reviewing a trial court's adjudication of neglect ... is to determine ‘(1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact[.]’ “ “If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary.”
In re S.C.R., ––– N.C.App. ––––, ––––, 718 S.E.2d 709, 711 (2011) (citations omitted).
II.
In Respondent's first argument, she contends that “there can be no neglect where the adjudication order specifically found that ‘at the time of the filing of the petition, the children were well cared for and doing well in school.’ “ We disagree.
The trial court made the following relevant findings of fact:
3. Presently the juveniles are in the legal custody of the Edgecombe County Department of Social Services. The children are currently placed in licensed foster homes.
....
6. Prior to DSS filing the petition, [Respondent] placed the children in environments injurious to the welfare of the children. The mother took two of the children along with her and a person she knew to be involved in illegal drugs.
7. At the time of the filing of petition, the children were well cared for and doing well in school. The care, housing and food were jointly provided by Respondent ... and [Respondent's] father and mother in law[.] The stepfather ... sold the family's food stamps in exchange for money.
8. The [trial] court finds through testimony and evidence presented that the minor children are neglected as shown by the following circumstances:
NEGLECT
The parents of the juveniles have subjected the juveniles ranging in age from one to fifteen to an environment injurious to their welfare as a result of their drug use, domestic violence, and instability. The mother and stepfather have a severe substance abuse problem that involves the abuse of prescription drugs and use of marijuana daily. The mother and stepfather have also involved two of the children in the purchase and larceny of drugs. [Respondent] has placed the children in an environment injurious to their welfare in taking two of the children in a car along with a person that she knew to be involved in illegal drugs. Neither the mother nor the stepfather has stable housing of their own. They have resided with the parents of the stepfather, who are utilized as a placement resource for the children since the family came under the agency purview for services on September 29, 2011. The children were not attending school regularly this school year, while the mother and stepfather were in the home, but have been regularly attend[ing] school since they have resided with the [stepfather's parents] and have also done well in school. The mother admits to having a drug problem. Neither the mother nor the stepfather has consistently been involved in substance abuse treatment to address their drug use. The mother has only had one of the three recommended urine drug screenings. The stepfather had sold food stamps for drugs. The children were placed with the parents of the stepfather and were not to be removed as part of a safety plan until the mother and stepfather addressed the case plan. Housing and food were provided by the [stepfather's parents]. The mother missed her counseling session on February 15, 2012 for herself and the children and took the children to Virginia.
It is clear from the trial court's findings that “the children were well cared for and doing well in school” because of the care provided by the stepfather's parents, not by Respondent. In making a determination of neglect in these circumstances, where the juveniles are in a kinship placement, it is appropriate for the trial court to look at the prior care given to the juveniles by Respondent. In re K.J.D., 203 N.C.App. 653, 657–61, 692 S.E.2d 437, 441–44 (2010). Respondent's argument that she cannot be found in neglect of the juveniles because the juveniles are receiving good care by others is without merit.
III.
Respondent argues that certain findings of fact were improperly found by the trial court, or were otherwise made in error. We agree.
The North Carolina Juvenile Code mandates that an “adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law.” “[T]he trial court's findings must consist of more than a recitation of the allegations” contained in the juvenile petition. “[T]he 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 .’ “ The findings need to be stated with sufficient specificity in order to allow meaningful appellate review.
In re S.C.R., ––– N.C.App. at –––– 718 S.E.2d at 711–12 (citations omitted). In the present case, the trial court's finding of fact number eight is copied from the petition alleging neglect. An order finding neglect must show that the trial court found the ultimate facts based upon the evidence presented to it at the hearing, and based upon the trial court's independent, logical reasoning. Id. Finding of fact number eight fails in this regard.
Respondent also challenges finding of fact six, arguing that “even a close and careful reading of this finding leaves this Court wondering where [Respondent] ‘took two of the children along with her.’ “ We agree that this finding of fact is unclear.
There are no other findings of fact supporting the trial court's conclusion of law that the juveniles were neglected. Because the order fails to include proper and sufficient ultimate findings of fact to support this conclusion, we reverse the adjudication and disposition order and remand to the trial court for further action. Id. at ––––, 718 S.E.2d at 713.
IV.
Respondent argues that the trial court's limitation “on visitation to phone contact only is not supported by findings that [Respondent] forfeited her right to visit with her children[.]” We agree.
We address this issue so that error may be avoided upon remand. “Any dispositional order ... under which the juvenile's placement is continued 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) (2011).
In the absence of findings that the parent has forfeited their right to visitation or that it is in the child's best interest to deny visitation “the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place[,] and conditions under which such visitation rights may be exercised.” Here, the trial court's order contains no such findings of fact.
In re E.C., 174 N.C.App. 517, 522–23, 621 S.E.2d 647, 652 (2005) (citation omitted). Upon remand, if the trial court continues placement of the juveniles outside of Respondent's care, it must either include an appropriate visitation schedule, or make findings supporting a conclusion that Respondent has forfeited her right to visitation, or that denial of visitation is in the juveniles' best interests. Id.
Reversed and remanded. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).