Opinion
No. COA04-360
Filed 19 April 2005 This case not for publication
Appeal by respondents from order entered 27 August 2003 by Judge Jeanie R. Houston in Wilkes County District Court. Heard in the Court of Appeals 3 November 2004.
Paul W. Freeman, Jr., for petitioner-appellee. Hall Hall Attorneys at Law, P.C., by Susan P. Hall, for respondent-appellant-mother. M. Victoria Jayne, for respondent-appellant-father.
Wilkes County Nos. 01 J 159, 160.
Respondent-mother and respondent-father (collectively "respondents") appeal from a permanency planning order relieving the Wilkes County Department of Social Services ("DSS") from efforts to reunify the minor children, K.F. and M.F., with respondents, approving a permanent plan of adoption, and initiating proceedings to terminate respondents' parental rights. We affirm.
K.F. and M.F. (the "children") were born to respondents in Massachusetts on 11 January 2000 and 15 February 2001 respectively. Shortly after M.F.'s birth, respondents moved from Massachusetts to North Carolina. In October 2001, at age eight-months, M.F. weighed approximately twelve pounds, and although hospitalized for a failure to thrive, bruises were observed on her body and a full body x-ray showed fractures in her ribs and left arm, all in various stages of healing. Respondents maintained that M.F.'s injuries had occurred in day-care and that M.F.'s bruises were caused by K.F. The children were placed in the legal custody of DSS, but no charges of child abuse were filed against respondents. Respondents stipulated to neglect and entered voluntary child support agreements, each agreeing to pay $163 per month. Respondents also agreed to follow the directives in DSS' "Family Services Case Plan." According to the plan, respondents were to obtain stable employment, retain a stable residence, pay child support, attend parenting classes, and obtain psychological evaluations and IQ tests.
The children were placed together in a foster home, and in November 2001, after approximately one-month in foster care, they each underwent developmental evaluations. M.F. gained approximately four pounds and her appetite improved. Although, her learning, behavior, and motor skills were still below average, her foster parents reported she had improved in those areas. K.F.'s learning, behavior, and motor skills were also below average. As with M.F., the foster parents reported K.F. had made substantial improvements under their care. The results of a second evaluation in August 2002 were favorable. K.F. no longer showed indications of a failure to thrive, both children's learning, behavior, and motor skills improved significantly, and both children moved from below average to an average range for their respective age groups. DSS agreed to investigate a relative placement for the children in view of respondents' desire for placement of the children with the maternal-grandmother and paternal-grandfather (the "grandparents"), who were co-habitating. However, Massachusetts authorities denied placement of the children with the grandparents due to the paternal-grandfather's criminal record. After the children had been in DSS custody for twelve months, a permanency planning hearing was scheduled. The hearing was held 22 January 2003 and 13 June 2003.
On 22 January 2003, the first day of the permanency planning hearing, respondents' social worker (the "social worker") reported on respondents' progress. Between October 2001 and January 2003, respondents each had three to four jobs and respondent-mother was currently unemployed due to pregnancy. During the same time period, respondents changed residences twice and were presently $345 in arrears in rent payments for their current residence. Respondent-mother's last child support payment was received 24 October 2002. As a result of missing payments, she was $428 in arrears in her support payments. Respondent-father's payments were also in arrears. His last child support payment was received 25 September 2002, and his arrearage totaled $621. Respondents successfully completed their parenting classes. Additionally, both obtained psychological evaluations and took their IQ tests.
Their evaluating psychologists recommended respondent-mother but not respondent-father receive additional counseling. Respondent-mother failed to attend the counseling sessions, stating she did not realize the sessions were mandatory. Both complied with DSS guidelines, by visiting K.F. and M.F. for one hour each month.
By 13 June 2003, the second day of the hearing, several circumstances changed. Respondent-mother moved to Massachusetts to stay with her mother, the maternal-grandmother, pending the birth of respondents' third child (the "baby"). Respondent-father moved to Massachusetts, obtained a job, and started residing in his mother's home. In March 2003, the baby was born. One week after birth, the baby was placed in the legal custody of the Massachusetts Department of Social Services ("MA DSS"). Immediately thereafter, respondents started residing with respondent-father's grandmother and were residing with her as of the second day of the hearing. In an effort to comply with the earlier recommendation, respondent-mother started counseling sessions, and respondents planned to obtain their own apartment. Additionally, both respondents were employed and collectively earned eighteen dollars per hour; yet, neither had paid child support for the children since approximately three months prior to the first day of the hearing. Although respondents contacted DSS twice, they never scheduled visitation, never visited either child after moving to Massachusetts, and never indicated they wanted custody or were prepared to resume custody of the children.
On 27 August 2003, the trial court entered a permanency planning order relieving DSS from efforts to reunify the children with respondents, approving a permanent plan of adoption, and initiating proceedings to terminate respondents' parental rights. From this order, respondents appeal separately. With the exception of the first issue, we address respondents' assertions collectively.
I. Respondent-Mother's Motion for a Continuance
Respondent-mother asserts the trial court erred by denying her motion for a continuance of the permanency planning hearing based on her attorney's late notification of his appointment as her counsel. Under N.C. Gen. Stat. § 1A-1, Rule 40(b), "[a] continuance may be granted only for good cause shown and upon such terms and conditions as justice may require." "A motion for a continuance is addressed to the sound discretion of the trial court[,] . . . is generally not favored[,] [and] . . . is not reviewable absent a clear abuse of discretion. The burden of showing sufficient grounds for a continuance rests with the party seeking it." Pickard Roofing Co. v. Barbour, 94 N.C. App. 688, 691-92, 381 S.E.2d 341, 343 (1989) (citations omitted). With regard to juvenile proceedings,
[t]he court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-803 (2003).
In the instant case, the trial court did not request additional evidence or indicate additional information was needed for the best interests of the children. The motion neither asserted that the parties required a reasonable time for expeditious discovery, nor did it direct the trial court's or this Court's attention to any extraordinary circumstances necessary for the proper administration of justice or for the best interests of the children. Moreover, the trial court had appointed respondent-mother's counsel on 18 November 2002. Therefore, respondent-mother should have been aware of her counsel's appointment as of 18 November 2002, providing her ample time to contact him prior to the first day of the hearing, 22 January 2003, which she failed to do. Furthermore, we note the second day of the hearing was delayed until 13 June 2003, approximately five-months after the first day, again providing respondent-mother and her counsel ample time to remedy any perceived disadvantage due to her counsel's late awareness of his appointment. Accordingly, the trial court did not abuse its discretion in denying respondent-mother's motion for a continuance.
II. The Rule 52(a)(1) Requirement to Find the Facts Specially
Respondents assert the trial court erred by referencing a social worker's court summary in finding of fact fifteen in lieu of specially finding the facts regarding DSS' use of reasonable efforts to eliminate the need for placement of the minor children. We disagree.
North Carolina General Statutes § 1A-1, Rule 52(a)(1) requires that "[i]n all actions tried upon the facts without a jury[,] . . . the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." In applying Rule 52(a)(1), we remain cognizant that "[t]here are two kinds of facts, ultimate facts and evidentiary facts. Ultimate facts are the final facts required to establish a [petitioner's case] or a [respondent's] defense, whereas evidentiary facts are subsidiary facts which tend to prove the ultimate facts." In re Brenner, 83 N.C. App. 242, 250, 350 S.E.2d 140, 146 (1986).
Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts[.] [Rather,] it . . . require[s] specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.
Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982). Therefore, to comply with Rule 52(a)(1), the trial court's findings of fact must constitute "a specific statement of the facts on which the rights of the parties are to be determined and . . . must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment." Id., 305 N.C. at 451, 290 S.E.2d at 657.
Respondents base their assertion that finding of fact number fifteen does not comply with Rule 52(a)(1) on In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003). In In re Harton, this Court concluded the trial court erred by failing to find the ultimate facts because it made a single finding of evidentiary fact and merely adopted the DSS and guardian ad litem reports as its remaining findings. Id., 156 N.C. App. at 660, 577 S.E.2d at 337. See also In re J.S., ___ N.C. App. ___, ___, 598 S.E.2d 658, 660 (2004) (holding the trial court's findings of fact, including one finding consisting only of an incorporation of court reports, were not findings of ultimate fact sufficiently specific to allow meaningful appellate review).
In full, finding of fact number fifteen states, "As more particularly appears from the [social worker's] Court Summary, [DSS] has utilized reasonable efforts to eliminate the need for placement of the children." In contrast to In re Harton, the trial court in the instant case did not merely adopt DSS' court summary as its finding of fact; rather, the trial court referenced DSS' court summary as the source of the particular evidentiary facts on which the court based its independent finding of ultimate fact that "[DSS] has utilized reasonable efforts to eliminate the need for placement of the children." See generally N.C. Gen. Stat. § 7B-507 (2003) (requiring "findings as to whether [DSS] has made reasonable efforts to eliminate the need for placement of the juvenile"). Similarly, we reject respondents' contention that the trial court violated Rule 52(a)(1) in finding of fact ten, by referencing the children's developmental evaluations "for more specific Findings of Fact[,]" before summarizing the children's developmental progress in foster care and finding "that removal of the children from their [foster parents' home] and plac[ing] [them] into the home of the [respondents] would be detrimental to the children's well-being and would likely cause significant regression in the children's developmental progress." Although the better practice is to summarize pertinent portions of DSS court summaries and evaluations, we hold the trial court in the instant case made independent findings of ultimate fact specific enough to allow meaningful appellate review, and accordingly, did not violate Rule 52(a)(1)'s requirement, to "find the facts specially," by referencing the court summary in finding of fact number fifteen and the children's developmental evaluations in finding of fact ten.
III. Challenged Findings of Fact and Conclusions of Law
Respondents assert: (1) findings of fact twelve, thirteen, and fifteen are not supported by competent evidence and (2) conclusions of law two and five are not supported by the findings of fact. It is well established that findings of fact supported by competent evidence are conclusive on appeal, even if there is evidence to support a contrary finding. In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Furthermore, findings of fact not challenged on appeal "are deemed supported by competent evidence." In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). It is equally well established that conclusions of law will be upheld if supported by the findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
As discussed above, finding of fact fifteen states that "[DSS] has utilized reasonable efforts to eliminate the need for placement of the children." "Reasonable efforts" is defined by N.C. Gen. Stat. § 7B-101(18) (2003) as "[t]he diligent use of preventive or reunification services by a department of social services when a juvenile's remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time." Competent evidence shows DSS made reasonable efforts to eliminate the need for placement of the children by presenting respondents with a "Family Services Case Plan" and aiding respondents in the plan's implementation so they might improve the conditions that led to DSS' removal of the children. DSS instructed respondents to: (1) maintain stable jobs and a stable residence; (2) attend parenting classes; (3) receive psychological evaluations and comply with appropriate follow-up counseling; (4) provide financial support for the children through voluntary support payments; and (5) visit the children monthly.
Respondents also argue findings of fact twelve and thirteen are not supported by competent evidence. Finding of fact number twelve states:
[Respondents] have made little progress in remedying those conditions which led to the removal of the children from [respondents'] home. Neither [respondent] accepts responsibility for the children's removal. It is apparent that neither [respondent] is currently able to provide suitable care for the children in a safe, permanent home.
Furthermore, finding of fact number thirteen states:
Now that the [respondents] are residing in the State of Massachusetts, continued efforts to work with the [respondents] in an attempt to eliminate the need for placement would be futile. This is supported by the [respondents'] failure to recognize any responsibility which they might have to the children and the fact that the [respondents] have now had another child removed from their care by the State of Massachusetts.
The evidence reflects that while residing in North Carolina, respondents attended parenting classes, received psychological evaluations and IQ tests, but failed to maintain stable jobs or a stable residence. After moving to Massachusetts, respondents changed residences and on the second day of the hearing were planning another change of residence. On the first day of the hearing, respondents were in arrears paying child support, and despite respondent-father's employment since February 2003 in Massachusetts and respondent-mother's employment in March 2003, neither resumed paying child support. Furthermore, respondents indicated that they did not want custody of the children but rather wanted the children placed with the grandparents. Moreover, testimony by a developmental pediatrician indicated that the children thrived in their foster parents' home and cautioned that relocation of the children into respondents' home would be detrimental to the developmental progress they achieved in foster care. Accordingly, competent evidence supports findings of fact twelve and thirteen.
Conclusion of law two states, "It is contrary to the best interests and welfare of the juveniles to be returned to the home of either [respondent]." Conclusion of law five states, "Further efforts to reunify the children with [respondents] would be futile and inconsistent with the children's need for a safe, permanent home within a reasonable period of time." As discussed above, competent evidence in the record supports findings of fact twelve, thirteen, and fifteen, and we hold these findings of fact along with the unchallenged findings of fact support conclusions of law two and five.
IV. The Findings of Fact Required Under N.C. Gen. Stat. § 7B-907
Respondents assert the trial court erred by failing to specially make the findings of fact required under N.C. Gen. Stat. § 7B-907 (2003). As stated in N.C. Gen. Stat. § 7B-907(a), "[t]he purpose 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." To this end, N.C. Gen. Stat. § 7B-907(b) provides in pertinent part that:
At the conclusion of the [permanency planning] hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:
(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
(6) Any other criteria the court deems necessary.
The trial court's permanency planning order need not specifically identify any of the findings of fact as being made pursuant to any of the § 7B-907(b) factors, . . . as long as the trial court makes findings of fact on the relevant § 7B-907(b) factors and does not "simply `recite allegations,'" but rather "through processes of logical reasoning from the evidentiary facts find[s] the ultimate facts essential to support the conclusions of law."
In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004) (quoting In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)).
Regarding N.C. Gen. Stat. § 7B-907(b)(1), findings of fact twelve and thirteen, discussed above, clearly indicate that returning the children to respondents' home within the six-month period would be impossible because "efforts . . . to eliminate the need for placement would be futile" and returning the children to conditions similar to those that necessitated their removal would not be in their best interests. With respect to N.C. Gen. Stat. § 7B-907(b)(2), finding of fact six sets forth that "the State of Massachusetts . . . notified [DSS] that the children's placement into the State of Massachusetts was denied." Therefore, placement of the children with the grandparents was precluded, and no other relatives were proffered as placements or came forward to request custody.
With regard to N.C. Gen. Stat. § 7B-907(b)(3), finding of fact seventeen states that "[t]here are no barriers to the adoption of the children[,]" which indicates adoption should be pursued especially in light of findings of fact six, twelve, and thirteen. Concerning N.C. Gen. Stat. § 7B-907(b)(4), finding of fact sixteen states that "[t]he children are doing well in their present foster care placement[,]" indicating no change in the children's placement is necessary. Because the hearing, sub judice, was the initial permanency planning hearing, N.C. Gen. Stat. § 7B-907(b)(5) does not apply, and N.C. Gen. Stat. § 7B-907(b)(6) merely gives the trial court discretion to consider other criteria it deems necessary. Accordingly, the trial court properly made the findings required under N.C. Gen. Stat. § 7B-907(b).
We have carefully considered respondents' remaining arguments and find them to be without merit. For the foregoing reasons, the trial court's order is hereby affirmed.
Affirmed.
Judge HUNTER concurs.
Judge LEVINSON concurs in the result.
Report per Rule 30(e).