Opinion
No. COA12–1252.
2013-06-4
In the Matter of K.M.
Stephanie Sonzogni for petitioner-appellee Carteret County Department of Social Services. Rebekah W. Davis for respondent-appellant mother.
Appeal by respondent-mother from order entered 31 January 2012 by Judge Jerry F. Waddell in Carteret County District Court. Heard in the Court of Appeals 15 May 2013. Stephanie Sonzogni for petitioner-appellee Carteret County Department of Social Services. Rebekah W. Davis for respondent-appellant mother.
Ellis & Winters LLP, by Lenor Marquis Segal, for guardian ad litem.
ELMORE, Judge.
Respondent-mother appeals from the trial court's permanency planning order ceasing reunification efforts with her daughter, K.M. After careful review, we affirm.
The Carteret County Department of Social Services (DSS) began investigating K.M.'s family after receiving a report in February 2009 alleging that K.M.'s father had sexually abused K.M.'s older half-sister (and his stepdaughter), A.K. The parents entered into a safety plan with DSS and the juveniles were placed outside the home. Three months later, the parents violated the safety plan and advised that they were not going to cooperate. DSS therefore filed a juvenile petition on 21 May 2009 alleging that A.K. was abused and dependent and that K.M. was dependent. At the same time, DSS obtained nonsecure custody of the juveniles.
K.M.'s father was a party to the trial court proceedings, but does not appeal.
On 15 March 2010, the parents stipulated to the following facts, inter alia: that the father admitted to touching A.K. inappropriately on at least one occasion; that the father used inappropriate discipline and caused injury to A.K. on at least one occasion; that A.K. disclosed the father's inappropriate contact to respondent-mother but she did not believe A.K. and took no further protective action; that both parents indicated they would no longer cooperate with DSS; that respondent-mother left K.M. unsupervised with the father before it was determined that unsupervised contact was safe; and that the parents lacked an alternative child care arrangement. In an adjudication order entered on 15 March 2010, the trial court concluded that A.K. was abused and dependent and that K.M. was dependent. In a subsequent disposition order, the trial court continued custody of the juveniles with DSS.
The trial court conducted a permanency planning hearing over the course of four days between September 2011 and January 2012. At the time of the hearing, K.M. was placed in a foster home. A.K., however, was living with her maternal aunt (Mrs. Jay) and Mrs. Jay's family in Indiana. Mrs. Jay wished to be considered as a relative placement for K.M. DSS had conducted an ICPC (Interstate Compact on the Placement of Children) study on the Jays, and the placement was approved.
The trial court entered a permanency planning order on 31 January 2012, concluding that (1) it was in K.M.'s best interest to remain in the custody of DSS; (2) K.M. could not be returned home immediately or within the next six months; (3) reasonable efforts at reunification would be futile or inconsistent with K.M.'s best interest; and (4) a permanent plan of guardianship with Mrs. Jay was in K.M.'s best interest. Respondent-mother now appeals.
I.
In her first argument, respondent-mother challenges the trial court's conclusions of law made pursuant to N.C. Gen.Stat. §§ 7B–507 and 7B–907 (2011), as well as several findings of fact which support the trial court's conclusions.
Pursuant to N.C. Gen.Stat. § 7B–907(a) (2011), “[i]n any case where custody is removed from a parent, ... the judge shall conduct ... a permanency planning hearing within 12 months after the date of the initial order removing custody” and at least every six months thereafter. “The purpose of the permanency planning hearing shall be to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time.” Id. The statute further provides that “[a]t the conclusion of the hearing, if the juvenile is not returned home, the court shall consider [six] criteria and make written findings regarding those that are relevant[,]” including “[w]hether 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[.]” N.C. Gen.Stat. § 7B–907(b).
“Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and [whether] the findings support the conclusions of law.” In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005). “If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal.” Id.
Here, the trial court also ceased reunification efforts with the parents, pursuant to N.C. Gen.Stat. § 7B–507(b). This statute provides:
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) (2011).
“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) (citations omitted). “The trial court may ‘only order the cessation of reunification 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 N.G., 186 N.C.App. 1, 10, 650 S.E.2d 45, 51 (2007) (quoting In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
A.
We first address respondent-mother's challenges to several findings of fact which support the conclusions of law made pursuant to N.C. Gen.Stat. §§ 7B–507(b) and 907(b). Respondent-mother takes exception to finding of fact numbers 11–13, 20–27, 29–30, 36–37, 40, 42, 46, and 48. She does not contest the remaining findings of fact. We therefore presume that they are supported by competent evidence, and consequently, they are binding on appeal. See In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). Additionally, we find that finding of fact numbers 23–25 and 36 are unnecessary to affirm the trial court's conclusions of law and decline to address them. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (“[W]e agree that some of [the challenged findings] are not supported by evidence in the record. When, however, ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error.”) (citation omitted). We address the challenged findings of fact in turn.
Finding of Fact Numbers 11–13, 46, and 48
Finding of fact numbers 11 through 13 concern the testimony of K.M.'s therapist, Danielle Mead. The court found, inter alia, that Ms. Mead provided therapy to K.M. but has observed both parents during visits; that Ms. Mead had to step in on occasion where a visit was too intense; that the father never accepted responsibility for his actions, was short with K.M., and was defensive; that respondent-mother had room for improving her parenting skills but with guidance could parent appropriately; that she was uncertain whether K.M. could be returned home within six months; that another foster placement would do more harm to K.M.; that K.M. loves her sister; and that placement with the Jays in Indiana could provide K.M. with the permanency she needs. In finding of fact numbers 46 and 48, the trial court reiterated some of the factual findings based on Ms. Mead's testimony. Respondent-mother argues that the trial court has mischaracterized Ms. Mead's testimony and that it instead supports reunification. We disagree.
First, we note that respondent-mother does not actually claim that these findings are lacking in evidentiary support. Rather, she essentially argues that in weighing Ms. Mead's testimony, the trial court should have made different factual findings and come to different conclusions regarding K.M.'s permanent plan. However, it is not our duty to re-weigh the evidence and substitute our judgment for that of the trial court. See In re Hughes, 74 N.C.App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, he alone determines which inferences to draw and which to reject.”) (citation omitted). We have reviewed Ms. Mead's testimony and conclude that it supports the challenged findings of fact. As noted by the guardian ad litem (GAL), the trial court accurately summarized Ms. Mead's testimony in each instance. Therefore, respondent-mother's challenge to these findings of fact is without merit.
Finding of Fact Numbers 29 and 30
Here, the trial court made findings pertaining to the testimony of Chris Boyle, a psychologist who performed evaluations on respondent-mother and the father. In finding number 29, the trial court found that the father was not forthcoming to Mr. Boyle, that he had psychological characteristics found in sexual predators, and that Mr. Boyle wished to perform additional testing on the father. In finding number 30, the trial court found that respondent-mother has low intellectual functioning which affects her ability to parent, that she has little confidence when dealing with others, and that she appears to be dependent on the father. Respondent-mother takes issue with Mr. Boyle's testing methods and argues that his evaluations were not inconsistent with reunification.
However, respondent-mother has again failed to challenge the evidentiary support for the findings, and as the GAL submits, the trial court's factual findings in numbers 29 and 30 are accurate synopses of Mr. Boyle's testimony. Furthermore, respondent-mother failed to object when Mr. Boyle was tendered as an expert, and she failed to object to the trial court's finding in number 28, that Mr. Boyle used “accepted testing measures.” Therefore, respondent-mother cannot now challenge Mr. Boyle's qualification as an expert or his testing measures.
Finding of Fact Numbers 20–22, 26–27
In finding of fact numbers 20 through 22, the trial court made findings based on the testimony of the father's stepfather (Mr. Fray) and a law enforcement officer, Sergeant Dennis Veal. The trial court found that in 2009, the father got into a violent fight with his stepbrother (Mr. Fray's son), and that the stepbrother sustained severe injuries requiring hospitalization. Sergeant Veal responded to the incident and concurred that the stepbrother's injuries were severe. Mr. Fray also testified that he had to protect himself from the father with a rifle, that the father had threatened Mr. Fray's wife (the father's mother) in the past, and that he and the father got into a past physical altercation. Additionally, in finding of fact number 26, the trial court made findings regarding the condition of the parents' mobile home. Respondent-mother and the father rented a lot for their mobile home from Mr. Fray but were evicted for nonpayment of rent. Mr. Fray testified that upon vacating, the parents damaged the trailer, left broken windows, and left it in disarray. Lastly, in finding of fact number 27, the trial court found that “[the father] has unresolved and untreated issues with anger. He did not successfully complete anger management treatment with Curtis Smith or any other provider.”
Respondent-mother does not appear to challenge the trial court's findings that the father did not complete anger management or that the parents left Mr. Fray's trailer in disarray. She, however, argues that the father's complicated relationship with Mr. Fray and his family does not support a broader finding that the father had untreated issues with anger because the fight occurred in 2009, the father was not criminally charged, and he no longer speaks to Mr. Fray. Thus, respondent-mother essentially argues that the trial court should have come to a different conclusion regarding the significance of Mr. Fray's testimony. We again reject such a claim as it is the duty of the trial judge to determine the weight and credibility to be given to evidence. See Hughes, 74 N.C.App. at 759, 330 S.E.2d at 218. Moreover, finding of fact numbers 20–22 and 26 amply support the finding that respondent-father has unresolved issues with anger. We therefore reject respondent-mother's argument to the contrary.
Finding of Fact Number 37
In this finding of fact, the trial court made various findings regarding Mrs. Jay's ability to provide a suitable placement for K.M. Respondent-mother specifically challenges the trial court's finding that Mrs. Jay “has the financial wherewithal to maintain the placement.” She argues that this finding is not supported by the evidence because the Jay family receives food stamps and Medicaid and is supported solely by Mr. Jay's $2,500 per month salary. Even if the evidence would support respondent-mother's characterization, the trial court's finding is supported by its own analysis of the ICPC study and Mrs. Jay's testimony that her family has the financial wherewithal to care for another child. “As this Court has clarified, ‘[w]here 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 K.S., 183 N.C.App. 315, 323, 646 S.E.2d 541, 545 (2007) (quoting In re J.S., 165 N.C.App. 509, 511, 598 S.E.2d 658, 660 (2004)) (emphasis in original). We therefore reject respondent-mother's argument.
Finding of Fact Numbers 40 and 42
Here, the trial court made findings regarding the GAL observations of the parents and their relationship with K.M., many of which were negative. Respondent-mother argues that these findings should be discounted because the GAL does not like the father. She also argues that they are not truly factual findings because they are merely recitations of the GAL's opinion. We disagree.
The GAL's testimony was based on her own personal observations of the family, and the trial court is required to consider the GAL's testimony at a permanency planning hearing. SeeN.C. Gen.Stat. § 7B–907(b). Furthermore, the statute specifies that “[t]he court may consider any evidence, including hearsay ..., that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition.” Id. In the instant case, the trial court apparently deemed the GAL's testimony to be relevant, reliable, and necessary to determine the needs of K.M. Therefore, we find no error in finding of fact numbers 40 and 42.
B.
Next, we address respondent-mother's challenges to the trial court's conclusions of law. In accordance with N.C. Gen.Stat. § 7B–907(b), the trial court concluded that “[t]he minor child cannot be returned home immediately or within the next 6 months.” In accordance with N.C. Gen.Stat. § 7B–507(b), the trial court concluded that “[c]ontinued reasonable efforts to achieve reunification are futile or inconsistent with the minor child's best interests.” Respondent-mother argues that these conclusions of law are not supported by competent evidence or the findings of fact.
We disagree, and conclude that the findings of fact support the trial court's challenged conclusions of law. The trial court ultimately found that the parents failed to make sufficient progress in correcting the conditions which lead to removal. This ultimate finding is supported by the factual findings discussed in the previous section as well as unchallenged findings that respondent-mother failed to complete therapy for issues related to the father's inappropriate behavior, that the GAL has concerns regarding respondent-mother's dependence on the father and failure to attend therapy, and that the parents were evicted in 2010. Additional relevant unchallenged findings of fact include findings that K.M. would benefit from a placement with the Jays because they are caring for her sister A.K.; that the Jays are committed to K.M.'s best interest, have a good relationship with K.M., and have sufficient support and resources; that the GAL thought K.M. would benefit from placement with the Jays; that K.M. has been in an out of home placement for over two and a half years; and that K.M. is at a critical age and a stable placement is in her best interest. These findings are sufficient to support the conclusions that reunification efforts would be futile or inconsistent with K.M.'s best interest and that she cannot be returned home immediately or within the next six months. We therefore reject respondent-mother's challenges to these conclusions of law.
II.
Next, respondent-mother argues that the trial court erred in ordering a disposition that included a placement with the Jay family in Indiana and a permanent plan of guardianship.
Pursuant to our Juvenile Code, a judge has broad discretion at a permanency planning hearing to craft an appropriate disposition for the juvenile:
At the conclusion of the hearing, the judge shall make specific findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time. The judge may appoint a guardian of the person for the juvenile pursuant to G.S. 7B–600 or make any disposition authorized by G.S. 7B–903....
N.C. Gen.Stat. § 7B–907(c) (2011). “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) (citations omitted). “An abuse of discretion occurs when the trial court's ruling ‘is so arbitrary that it could not have been the result of a reasoned decision.’ “ Chicora Country Club, Inc. v. Town of Erwin, 128 N.C.App. 101, 109, 493 S.E.2d 797, 802 (1997) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). Respondent-mother contends that the trial court abused its discretion by placing K.M. hundreds of miles away with a family about which little was known. Instead, she argues, the trial court should have tried unsupervised visitation. We disagree.
We conclude that the trial court's findings of fact demonstrate that its disposition was the result of a reasoned decision. In finding of fact numbers 32 through 35, 38, and 39, the trial court made the following unchallenged findings of fact regarding the disposition: that K.M.'s older sister, A.K., was living with the Jay family in Indiana and that Mrs. Jay expressed her interest in being considered a relative placement for K.M.; that since June 2011, Mrs. Jay has been in contact with K.M. on a daily basis; that respondent-mother is estranged from her extended family due to her husband's behavior; that Mrs. Jay is a nursing student and her husband is employed full time; that Mrs. Jay has support from her husband's family; that K.M.'s GAL believes K.M. would benefit from the placement; and that an ICPC study was completed on the Jays and the placement was approved. The trial court also found that Mrs. Jay understands the legal significance of the placement, is financially capable and committed to K.M.'s needs, has a good relationship with K.M., has a stable home, and has investigated schools, doctors, and therapists for K.M. We find the foregoing findings of fact sufficient to support the trial court's disposition, and therefore reject respondent-mother's argument.
III.
Lastly, respondent-mother argues that the trial court erred by ordering the cessation of reunification efforts without making findings of fact or conclusions of law regarding the parents' constitutionally protected status.
A parent has a constitutional right to the custody, care, and control of his or her children. See Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). However, “a natural parent may lose [her] constitutionally protected right to the control of [her] children in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with his or her constitutionally protected status.” In re D.M., 211 N.C.App. 382, ––––, 712 S.E.2d 355, 357 (2011) (quotations ommitted). “While this analysis is often applied in civil custody cases under Chapter 50 of the North Carolina General Statutes, it also applies to custody awards arising out of juvenile petitions filed under Chapter 7B.” Id. at ––––, 712 S.E.2d at 357 (emphasis added) (citation omitted).
In the instant case, the trial court did not make any findings regarding whether respondent-mother forfeited her constitutionally protected status. DSS and the GAL argue that such findings were not necessary because the trial court did not terminate respondent-mother's parental rights, remove or alter custody of K.M., or award guardianship. We agree with DSS and the GAL.
The trial court had previously given custody of the juvenile to DSS and merely continued custody in the permanency planning order at issue. This order in no way changed or altered the custody of the juvenile. A trial court needs only to make a finding concerning whether a parent is unfit or has acted inconsistently with his or her constitutionally protected parental rights when making a permanent custody determination. See id., 211 N.C.App. at ––––, 712 S.E.2d at 357 (“[T]he trial court specifically found that ‘[n]either parent is unfit to parent[,]’ and thus it could not award permanent custody to the maternal grandmother in the absence of findings of fact and conclusions of law that respondent-father had acted inconsistently with his constitutional rights as a parent.”) (emphasis added) (citation omitted). The cases to which respondent-mother cites are distinguishable from the instant case because they involve permanent custody decisions, where custody of the juveniles in question was altered. Therefore, because the trial court here was not making a permanent custody determination, we hold that it was not required to make findings that respondent-mother was unfit or had acted inconsistently with her constitutionally protected status. Accordingly, we reject respondent-mother's argument.
Affirmed. Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).