Opinion
No. COA18-849
04-02-2019
In the MATTER OF: N.T., R.T., A.T., E.T., H.T., D.T., T.T., G.T., and M.T.
Reece & Reece, Smithfield, by Mary McCullers Reece for respondent-appellant mother. Rebekah W. Davis, for respondent-appellant father. James Edward Yeager, Jr., for appellee Martin County Department of Social Services. Matthew D. Wunsche, Durham, for appellee guardian ad litem.
Reece & Reece, Smithfield, by Mary McCullers Reece for respondent-appellant mother.
Rebekah W. Davis, for respondent-appellant father.
James Edward Yeager, Jr., for appellee Martin County Department of Social Services.
Matthew D. Wunsche, Durham, for appellee guardian ad litem.
BERGER, Judge.
Respondent-mother and Respondent-father (collectively, "Respondents") appeal from an order eliminating reunification as a permanent plan and awarding guardianship or adoption of their minor children, N.T. ("Nancy"), R.T. ("Rowena"), A.T. ("Ann"), E.T. ("Elly"), H.T. ("Hilary"), D.T. ("Dan"), T.T. ("Tom"), and G.T. ("Gary"), (collectively, "the children" or "the juveniles") to a relative or court-approved caretaker. Respondent's ninth child M.T. reached the age of majority between the filing of the order and its appeal. We affirm in part and remand in part.
Pseudonyms are used throughout the opinion to protect the identity of the juveniles and for ease of reading.
Factual and Procedural Background
On September 15, 2015, Martin County Department of Social Services ("MCDSS") received a report about the suspected neglect of the children. The allegations included that Respondents had placed the juveniles with another family because of an infestation of fleas and roaches in their home and that the home was not suitable to live in; that Respondents had allowed the juveniles' Medicaid to lapse and were not able to obtain the juveniles' medicine; that Respondent-mother had not been home-schooling the juveniles and some of them were so far behind that they could not read; and that Respondent-mother had been inappropriately disciplining the children.
MCDSS social workers had visited the home. They noted that the home was in disorder, all the dishes were cleared out of the cupboards, and baking soda had been scattered throughout the home. Borax had been spread around the corners of the rooms in an attempt to address the roach and flea problem. Moreover, Respondent-mother informed MCDSS that the main water pipe had broken, causing the water to be cut off for eleven days during the repair and that an increase in bugs in the home had led Respondents to place the children with another family.
Regarding medical treatment, medical records from 2013 to 2014 revealed that Dan and Gary were hemophiliacs and had been prescribed three treatments each week. They frequently had received less than three per week because Respondents were too busy to attend to them or they had relied on the children to administer the medicine themselves. In terms of schooling, MCDSS noted that some of the juveniles were behind, and only one of the school-aged children had appeared to be at the proper grade level. In regard to discipline, Respondent-mother informed MCDSS that she used a variety of disciplinary measures, including time-outs, groundings, extra chores, and spankings. She acknowledged two instances in which she spanked the children until another had to intervene. She further admitted that timeouts included the withholding of food, drink, and use of the restroom for an hour.
Dr. Kristy Matala ("Dr. Matala") conducted a Child/Family Evaluation ("CFE") on Respondents and all the children. Dr. Matala made several conclusions, including that the children have been emotionally and physically abused and neglected, and that there were concerns about sexual abuse in the home. It was specifically noted that Elly and Hilary were being sexually abused by Tom, Dan, and Gary. For example, Tom had sexually abused his sisters, Elly and Hilary, by urinating in their mouths and touching them vaginally and anally.
On October 22, 2015, MCDSS filed juvenile petitions alleging that Nancy, Rowena, Ann, Elly, Hilary, Dan, Tom, and Gary were neglected, and nonsecure custody orders were entered. On May 31, 2016, all eight children were adjudicated neglected. An Initial Disposition Order was entered July 11, 2016, setting the permanent plan for reunification with Respondents. In its first review order entered October 17, 2016, the trial court made several conclusions, including maintaining reunification as the permanent plan and granting parents supervised visitation with most of the children. In its second review order entered December 13, 2016, the trial court ordered MCDSS to continue making reasonable efforts to eliminate the need for placement with MCDSS, and implemented a detailed plan in furtherance of the goal of reunification.
The next review order ("Review Order") was entered October 24, 2017, and it is from this Review Order that Respondents appeal. In the Review Order, the trial court ceased reunification efforts with Respondents and changed the permanent plan for the children to either guardianship or adoption with a relative or court-approved caretaker.
On appeal, Respondents argue that the trial court erred when it (1) ceased reunification efforts because it may not cease reunification efforts at the initial permanency planning hearing; (2) failed to make the required findings to cease reunification because the trial court incorrectly relied on a repealed statute; and (3) did not make the required findings as to Gary, who was at least fourteen years of age at the time of the hearing. Respondent-father further argues that the trial court did not make the required findings as to Anne regarding visitation. We affirm in part and remand in part.
Standard of Review
"[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. If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal." In re P.O. , 207 N.C. App. 35, 41, 698 S.E.2d 525, 530 (2010) (citations omitted). Unchallenged findings of fact are deemed supported by the evidence and binding on appeal. Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). The trial court's findings of fact need "not quote the precise language" stated in the applicable statutes as long as the trial court's written findings "embrace[ ] the substance of the statutory provisions." In re L.M.T. , 367 N.C. 165, 169, 752 S.E.2d 453, 456 (2013). Moreover, "[i]t is the province of the fact-finder to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re N.B. , 240 N.C. App. 353, 359, 771 S.E.2d 562, 566 (2015) (citations and quotation marks omitted).
On appeal,
[t]his Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, ... whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition. 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. The trial court's conclusions of law are reviewed de novo on appeal.
Matter of K.L. , ––– N.C. App. ––––, ––––, 802 S.E.2d 588, 591 (2017) (citations and quotation marks omitted).
Analysis
At a permanency planning hearing
the court shall consider the following criteria and make written findings regarding those that are relevant:
(1) Services which have been offered to reunite the juvenile with either parent whether or not the juvenile resided with the parent at the time of removal or the guardian or custodian from whom the child was removed.
(2) Reports on visitation that has occurred and whether there is a need to create, modify, or enforce an appropriate visitation plan in accordance with G.S. 7B-905.1.
(3) Whether efforts to reunite the juvenile with either parent clearly would be unsuccessful or inconsistent with the juvenile's health or safety and need for a safe, permanent home within a reasonable period of time. The court shall consider efforts to reunite regardless of whether the juvenile resided with the parent, guardian, or custodian at the time of removal. If the court determines efforts would be unsuccessful or inconsistent, the court shall schedule a permanency planning hearing within 30 days to address the permanent plans in accordance with this section and G.S. 7B-906.2, unless the determination is made at a permanency planning hearing.
(4) Reports on the placements the juvenile has had, the appropriateness of the juvenile's current foster care placement, and the goals of the juvenile's foster care plan, including the role the current foster parent will play in the planning for the juvenile.
(5) If the juvenile is 16 or 17 years of age, a report on an independent living assessment of the juvenile and, if appropriate, an independent living plan developed for the juvenile.
(6) When and if termination of parental rights should be considered.
(7) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-906.1(d) (2017).
Moreover, if at the permanency planning hearing the trial court determines that reunification efforts are unreasonable,
the court shall make written findings as to each of the following, which shall demonstrate lack of success:
(1) Whether the parent is making adequate progress within a reasonable period of time under the plan.
(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.
(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.
(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.
N.C. Gen. Stat. § 7B-906.2(d) (2017). Thus, the trial court is required to "make [it] clear that the trial court considered the evidence in light of whether reunification 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. The trial court's written findings must address the statute's concerns." Matter of K.L. , ––– N.C. App. at ––––, 802 S.E.2d at 592 (citations and quotation marks omitted).
I. Review Hearings and Permanency Planning Hearings
Respondents argue that the trial court did not make the required findings under Section 7B-906.1(d), specifically subsections (1), (2) and (4), because the trial court incorrectly relied on a repealed statute, N.C. Gen. Stat. § 7B-907. Although the trial court did cite to a repealed statute, its findings were sufficient to meet the requirements of Section 7B-906.1(d)(1), (2) and (4).
First, the trial court did make findings regarding what services were offered to reunite the parents to the children pursuant to Section 7B-906.1(d)(1). The trial court noted that the parents made an effort in achieving the goals set forth in their case plan and in following prior directives to achieve reunification, such as completing parenting classes, obtaining employment, faithfully visiting the juveniles, enrolling in therapy, and addressing roach infestations in the home. Thus, the trial court did make findings addressing the services that Respondents needed to make and had made. However, the trial court ultimately concluded that "despite the modest progress of the respondent-parents," there was sufficient evidence to conclude that adequate process had not been made within a reasonable period of time for reunification. Accordingly, the trial court adequately addressed Section 7B-906.1(d)(1).
The trial court also adequately addressed visitation pursuant to Section 7B-906.1(d)(2). The trial court stated that some children should "maintain some visitation with the respondent-parents" but not all the children. Specifically regarding visitation with Respondent-father, the trial court stated that he "always has positive interactions with the juveniles, especially the boys. There is an obvious bond between respondent-father and the boys." However, the trial court found that "risk of further abuse or neglect to the juveniles if returned to either parent remains high, given each parent's psychological problems, lack of genuine commitment to addressing psychological problems, and bleak psychological prognosis." Given the trial court's findings of concern regarding Respondents' psychological problems, the trial court's findings regarding visitation were proper and in accordance with Section 7B-906.1(d)(2).
The trial court made relevant findings regarding the appropriateness and goals of each child's placement according to 7B-906.1(d)(4). While the trial court did not explicitly state the goals or the role of the foster parents, the trial court sufficiently detailed the progress each child had made academically, mentally, and socially in their current placements. The trial court also noted any challenges each child continues to face and any recommendations made by their therapists to address their challenges moving forward. The trial court further detailed what type of placement each child would benefit from based on the evidence regarding their academic and emotional levels. Thus, the trial court's findings sufficiently satisfy Section 7B-906.1(d)(4).
Because the trial court made sufficient findings which adequately addressed the requirements of Section 7B-906.1(d)(1), (2) and (4), we affirm the Review Order.
II. Reunification
Respondents argue that the trial court failed to make sufficient findings under Section 7B-906.2 to cease reunification. Respondents further argue that the trial court should not have ceased reunification efforts at the review hearing. We disagree.
A. Respondent-mother
Respondent-mother challenges Findings #40 and #42, and argues that the evidence did not support section 7B-906.2(d)(4), "[w]hether the parent is acting in a manner inconsistent with the health or safety of the juvenile." She further contends that the Review Order should be vacated and remanded because the trial court's conclusion that reunification should cease was not supported by the evidence. We disagree.
The challenged trial court's findings state:
40. Given the lack of progress made by the respondent-parents and their psychological issues as detailed above, efforts to reunite the juveniles with either respondent-parent clearly would be unsuccessful and futile, and would be inconsistent with the juveniles' health, safety and need for a safe, permanent home within a reasonable period of time.
42. Respondent-mother has acted in a manner inconsistent with her parental rights. Specifically, she has improperly supervised the juveniles and engaged in a level of physical and emotional discipline of the juveniles that it was tantamount to abuse, and she has not adequately addressed her mental health needs.
In support of these findings, the trial court made several other findings:
39. Despite the modest progress of the respondent-parents ... neither respondent-parent has made adequate progress within a reasonable period of time toward the goal of reunification. This is evidenced by their lack of understanding of what brought the juveniles into care, as documented by numerous professionals, including Amy James, Ph.D., who performed recent psychological evaluations on each parent.
44. The risk of further abuse or neglect to the juveniles if returned to either parent remains high, given each parent's psychological problems, lack of genuine commitment to addressing psychological problems, and bleak psychological prognosis.
Despite these findings, Respondent-mother argues that two of her therapists, Dr. Robert David Morrow ("Dr. Morrow") and Dr. Laurie Sowers ("Dr. Sowers"), noted a change. Dr. Morrow, a licensed marriage and family therapist at CareNet Counseling, noted improvement, but stated that he was "hesitant" to encourage reunification because he had not met the children. Although Appellant-mother's individual therapist, Dr. Sowers, wrote in a letter that Appellant-mother had been "cooperative and compliant," the letter did not state whether or not she acknowledged responsibility for the juveniles' abuse, just that she has been "receptive to feedback" and "open to self-examination."
In addition, Dr. Amy James ("Dr. James") testified that Appellant-mother had the "same difficulties" from her first evaluation because she "was still unable to grasp the concept that her children had been victimized" and at least one of her children had been "sexually victimized by her." Further, Dr. James testified that Respondent-mother could not "recognize her own role in the problems of the family to include the physical abuse and the sexual abuse that was occurring in the home, to accept the responsibility, and to work on a plan." Licensed professional counselor Linda Whitley ("Ms. Whitley") testified that she stopped working with Respondents because they both failed to "accept any responsibility ... regarding allegations which were made against them." She further testified that it appeared as if Respondents "were going through the motions of doing what the Court asked them to do." Kevia Griffin ("Ms. Griffin"), a DSS social worker assigned to this case from September 2016 testified that she had "not seen any change within the parents as far as accepting responsibility for the things that had taken place when the children were in their care." She also noted gaps within their therapy.
The trial court found that Respondent-mother had made "some progress," but after considering all the evidence, the trial court determined that the "modest progress" was not enough to continue reunification. "[I]t is [the trial] judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re T.R.M. , 208 N.C. App. 160, 164, 702 S.E.2d 108, 111 (2010) (citation and quotation marks omitted).
After reading the medical reports and listening to testimony, the trial court made appropriate findings of fact which supported its conclusion that reunification between Respondent-mother and her children should cease to be a permanent plan. Because the trial court did not abuse its discretion in ceasing reunification, we affirm the Review Order.
B. Respondent-father
Respondent-father challenges Finding #43 and argues that it did not sufficiently address Section 7B-906.2(d)(4), "[w]hether the parent is acting in a manner inconsistent with the health or safety of the juvenile." He further argues that the trial court did not adequately address Section 7B-906.2(d)(2), "[w]hether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile." Also, Respondent-father argues that the trial court's conclusion that reunification should cease was not supported by the evidence. We disagree.
Finding #43 states:
Respondent-father has acted in a manner inconsistent with his parental rights. Specifically, he has improperly supervised the juveniles and engaged in a level of physical and emotional discipline of the juveniles that it was tantamount to abuse, and he has not adequately addressed his mental health needs.
In addressing the statutory requirements under Section 906.2(d)(2) and (4), the trial court made several findings, including the following:
38. The respondent-parents have made some progress in achieving the goals set forth in their case plan and in following prior directives of this Court. They have participated in a plan of reunification to a certain extent. ...
39. Despite the modest progress of the respondent-parents ... neither respondent-parent has made adequate progress within a reasonable period of time toward the goal of reunification. This is evidenced by their lack of understanding of what brought the juveniles into care, as documented by numerous professionals, including Amy James, Ph.D., who performed recent psychological evaluations on each parent.
44. The risk of further abuse or neglect to the juveniles if returned to either parent remains high, given each parent's psychological problems, lack of genuine commitment to addressing psychological problems, and bleak psychological prognosis.
These findings demonstrate that Respondent-father had not been "actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile" pursuant to Section 7B-906.2(d)(2). Moreover, the trial court noted that "some progress" had been made, but not adequate progress to accomplish the goal of reunification. The trial court further noted that "Respondent-father's prognosis is guarded. He has engaged in therapy for over a year and has made little progress." In fact, family therapy had been cancelled at one point because "it became increasingly clear that little to no progress was being made." Thus, the evidence sufficiently addresses Section 7B-906.2(d)(2).
In addition, these findings address "[w]hether the parent is acting in a manner inconsistent with the health or safety of the juvenile" in accordance with Section 7B-906.2(d)(4). The findings indicate that Respondent-father had improperly supervised the juveniles, engaged in a level of physical and emotional discipline of the juveniles that was tantamount to abuse, and he had not adequately addressed his mental health needs. The trial court's findings sufficiently address Section 7B-906.2(d)(4). Because the trial court's findings are supported by the evidence, we affirm the Review Order.
Respondent-father further challenges the evidentiary support for several findings of fact. He specifically contends that Findings #5, #18, #20(c), #29, and #30 are not supported by the evidence. We disagree.
In Finding #5, Respondent-father argues that the CFE incorrectly concluded that it was probable that all of the children had been abused and that each child was behind academically by several grade levels. This argument is without merit because the CFE states that "Based on all the evidence available, it is probable that [the juveniles] have been emotionally and physically abused by [Respondents]." Thus, the trial court accurately concluded that the children had been abused. Moreover, the CFE found that "All the children are reportedly academically delayed ... the children's delays and reports are consistent with educational neglect. Whatever schooling [Respondent-mother] administered was insufficient and resulted in academic delays for her children." This finding was supported by the stipulated facts for adjudication stating that the children were grade levels behind where they should be. Therefore, we conclude that there was sufficient evidence to support Finding #5.
Respondent-father next challenges the observations of Dr. Morrow, stated in Finding #18, as not being reflective of his views on the parents' progress. However, the findings are supported by Dr. Morrow's testimony. Although the trial court did not indicate every positive observation Dr. Morrow made, the trial court did make note that Respondents "have acknowledged using inappropriate methods of discipline in the past and have worked on alternative forms of punishment other than corporal punishment." Thus, the record reflects that Finding #18 was supported by the evidence.
Respondent-father also challenges Finding #20(c) and argues that Dr. Whitley's assessment that he does not see the younger girls as victims of a sexual assault is incorrect. However, the trial court made this finding based on Dr. Whitley's testimony, which states that she had to stop family therapy with both parents because she observed that both parents "saw little or no concern for the girls that were the victims of sexual abuse." Thus, the trial court's Finding in #20(c) is supported by the evidence.
Additionally, Respondent-father contends that, contrary to Finding #29, the children's therapists had never recommended expanding visits and that it was indicative of the parents' lack of progress. In support, Respondent-father refers to a finding in a MCDSS report made in 2016; however, the report referred to "supervised visitation between the boys and their younger siblings," not supervised visitation between the children and their parents. Furthermore, in that same report, MCDSS made note of any issues between the children and the parents during visitations, which speaks to the parents' progress with the children during visitation. Accordingly, the evidence supports the trial court's Finding #29.
Respondent-father also argues that the trial court mischaracterized Respondent-mother's slideshow as depicting "the whole picture of [their] home prior to the removal of the juveniles." He asserts that the slideshow was to "illustrate the bond between the parents and the children," and that Respondent-mother testified to this assertion. Even if that was the purpose of the slideshow, Respondent-mother also conceded that the purpose of the slideshow was not to deny any allegations but to illustrate that "through it all, yes, we love our children." She further said that "memories are one thing, and after time, can be distorted and yet pictures can't lie." Thus, it's clear that Respondent-mother was attempting to illustrate a "reality" based on pictures and not attempting to address the allegations against her. Therefore, we find that the trial court's finding was supported by the evidence.
Because the trial court's findings of fact are appropriate and support the trial court's conclusions, the trial court did not abuse its discretion when it concluded that reunification efforts should cease between Respondent-father and his children. Accordingly, we affirm the Review Order.
Finally, Respondent-father argues that at least seven findings of fact were filled with conclusions of law. However, when conclusions are "fully supported by the trial court's ... findings of fact ... mislabeling [i]s inconsequential" to the case. In re R.A.H. , 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007). Because we have determined that the trial court's findings of fact support its conclusion that reunification between Respondent-father and his children should cease, we dismiss this argument and affirm the Review Order.
C. Respondents
Respondents argue that the trial court erred when it removed reunification as a permanent plan and ceased reunification efforts at the initial permanency planning hearing. We disagree.
After conducting an initial disposition hearing, the trial court may conclude in its initial disposition order "that there is compelling evidence warranting continued reunification efforts." N.C. Gen. Stat. § 7B-901(c) (2017). However,
[r]eunification shall remain a primary or secondary plan unless the court made findings under G.S. 7B-901(c) or makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile's health or safety.
N.C. Gen. Stat. § 7B-906.2(b). Additionally, before eliminating reunification as a permanent plan, the trial court is required to make written findings
as to each of the following, which shall demonstrate lack of success:
(1) Whether the parent is making adequate progress within a reasonable period of time under the plan.
(2) Whether the parent is actively participating in or cooperating with the plan, the department, and the guardian ad litem for the juvenile.
(3) Whether the parent remains available to the court, the department, and the guardian ad litem for the juvenile.
(4) Whether the parent is acting in a manner inconsistent with the health or safety of the juvenile.
N.C. Gen. Stat. § 7B-906.2(d).
Here, Respondents rely on Matter of C.P. , ––– N.C. App. ––––, 812 S.E.2d 188 (2018), and argue that the trial court should not have eliminated reunification as a permanent plan in its first permanency planning order, which is the Review Order on appeal. In Matter of C.P. , this Court stated:
"At any permanency planning hearing, the court shall adopt concurrent permanent plans and shall identify the primary plan and secondary plan. Reunification shall remain a primary or secondary plan unless" certain findings are made. N.C. Gen. Stat. § 7B-906.2(b) (2015) (emphasis added). The statutory requirement that "reunification shall remain" a plan presupposes the existence of a prior concurrent plan which included reunification. Thus, reunification must be part of an initial permanent plan. [In Matter of C.P. ], even though the trial court found that Respondent-mother "presents a risk to the health and safety of the juvenile" and that "[r]eunification efforts ... would be futile," the trial court erred in failing to include reunification as part of the initial concurrent plan.
The same cannot be said of reunification efforts, however. Pursuant to Section 7B-906.1(g), a trial court "shall inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan may result in an order of the court in a subsequent permanency planning hearing that reunification efforts may cease." N.C. Gen. Stat. § 7B-906.1(g) (2015) (emphasis added). However, despite the plain language of Section 7B-906.1(g), a prior panel of this Court has held that a trial court can cease reunification efforts at the first permanency planning hearing if necessary findings of fact were made that showed reunification would be unsuccessful or not in the juvenile's interests. In re: H.L. , –––, N.C. App. ––––, ––––, 807 S.E.2d 685, 693 (2017).
Matter of C.P. , ––– N.C. App. at ––––, 812 S.E.2d 188 at 191.
However, unlike in Matter of C.P. , where the trial court heard the adjudication, disposition and permanency planning hearings on the same day, and then entered an order ceasing reunification, id. at ––––, 812 S.E.2d at 191, here, the trial court included reunification as part of the initial plan in its Initial Disposition Order entered July 11, 2015. The trial court found the "permanent plan for the juveniles at this time is reunification with the respondent parents. ... [T]he primary plan is reunification with the respondent-parents as a family unit, and the secondary plan is custody or guardianship with a relative or other court-approved caretaker." Subsequent review orders entered on October 17, 2016 and December 13, 2016 leading up to the entry of the Review Order maintained the current plan and ordered MCDSS "to make reasonable efforts ... to implement the permanent plan." Thus, an initial permanent plan of reunification existed in a "prior concurrent plan," and reunification could be properly removed as a permanent plan provided the trial court complied with Section 7B-906.2(b). The trial court complied with this section by making the following findings:
39. Despite the modest progress of the respondent-parents ... neither respondent-parent has made adequate progress within a reasonable period of time toward the goal of reunification. This is evidenced by their lack of understanding of what brought the juveniles into care, as documented by numerous professionals, including Amy James, Ph.D., who performed recent psychological evaluations on each parent.
40. Given the lack of progress made by the respondent-parents and their psychological issues as detailed above, efforts to reunite the juveniles with either respondent-parent clearly would be unsuccessful and futile, and would be inconsistent with the juveniles' health, safety and need for a safe, permanent home within a reasonable period of time.
42. Respondent-mother has acted in a manner inconsistent with her parental rights. Specifically, she has improperly supervised the juveniles and engaged in a level of physical and emotional discipline of the juveniles that it was tantamount to abuse, and she has not adequately addressed her mental health needs.
43. Respondent-father has acted in a manner inconsistent with his parental rights. Specifically, he has improperly supervised the juveniles and engaged in a level of physical and emotional discipline of the juveniles that it was tantamount to abuse, and he has not adequately addressed his mental health needs.
44. The risk of further abuse or neglect to the juveniles if returned to either parent remains high, given each parent's psychological problems, lack of genuine commitment to addressing psychological problems, and bleak psychological prognosis.
Thus, by the time the trial court filed its Review Order on October 24, 2017, two hearings had been held, and both parties were aware of the concurrent plan. At issue here, however, is that Section 7B-906.1(g) states a trial court "shall inform the parent, guardian, or custodian that failure or refusal to cooperate with the plan may result in an order of the court in a subsequent permanency planning hearing that reunification efforts may cease." N.C. Gen. Stat. § 7B-906.1(g) (emphasis added).
However, despite the plain language of Section 7B-906.1(g), a prior panel of this Court has held that a trial court can cease reunification efforts at the first permanency planning hearing if necessary findings of fact were made that showed reunification would be unsuccessful or not in the juvenile's interests. In re: H.L. , ––– N.C. App. ––––, ––––, 807 S.E.2d 685, 693 (2017).
Matter of C.P. , ––– N.C. App. at ––––, 812 S.E.2d at 191. In its corresponding footnote, Matter of C.P. further states:
Respectfully, it appears that our Court in H.L. did not focus on Section 7B-906.1(g) in its entirety. The second sentence of that section requires prior notice be provided to a parent before reunification efforts may be ceased. Thus, the statutory language precludes eliminating reunification efforts at the permanency planning hearing in this case, as appellant never received the mandated notice. However, case law requires us to follow H.L. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.") This issue will need to be resolved through an en banc hearing with this Court, or a decision from the North Carolina Supreme Court.
Id. at –––– n.3, 812 S.E.2d at 191 n.3.
As discussed above, we have already determined that the findings made by the trial court were supported by the evidence and adequately addressed the statutory requirements to eliminate reunification as a permanent plan. These findings then support the trial court's conclusion that reunification efforts may be ceased. Therefore, the Review Order removing reunification as a permanent plan and ceasing reunification efforts is affirmed.
III. Juveniles Fourteen Years of Age and Older
Respondents argue that the Review Order should be vacated and remanded because the trial court did not make the required findings as to Gary, who was at least fourteen at the time of the hearing. We remand for additional findings addressing the issues required by the statute.
At every permanency planning hearing, the trial court is required to make additional written findings for a juvenile who has attained the age of fourteen years:
(1) The services provided to assist the juvenile in making a transition to adulthood.
(2) The steps the county department of social services is taking to ensure that the foster family or other licensed placement provider follows the reasonable and prudent parent standard as provided in G.S. 131D-10.2A.
(3) Whether the juvenile has regular opportunities to engage in age-appropriate or developmentally appropriate activities.
N.C. Gen. Stat. § 7B-912(a) (2017).
Here, the trial court made the following findings regarding Gary.
b. [Gary] continues to do well along with his brother, [Dan], in his current placement with Carl and Debbie Smith. He was promoted to the 8th grade even though he continues to struggle academically. [Gary] continues to have therapy with Teresa Lee at Pitt Counseling, and also receives services from Sylvan Learning Center. [Gary] has had a lot of anxiety about this court hearing because he feared being moved to the home of his paternal grandparents. He especially does not want to return home with the parents. Ms. Lee recommended reducing the visits for [Gary] with his parents and for group therapy to take place with his siblings only, as opposed to involving the parents. This is to reduce anxiety, help him form healthy, long lasting relationships, and reduce the aggression he continues to display.
Although the trial court made some findings, it did not adequately address the required findings in Section 7B-912(a). However, the Review Order need not be vacated because the record contains sufficient evidence from which the trial court could make additional findings under the statute. Accordingly, we remand to the trial court to make the required findings as to Gary.
IV. Visitation
Respondent-father challenges Finding #48 and argues that it was not supported by the evidence. He also argues that the trial court should not have left the decision about Ann's visitation with Respondent-father up to her.
An order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile consistent with the juvenile's health and safety. The court may specify in the order conditions under which visitation may be suspended.
If the juvenile is placed or continued in the custody or placement responsibility of a county department of social services, the court may order the director to arrange, facilitate, and supervise a visitation plan expressly approved or ordered by the court. The plan shall indicate the minimum frequency and length of visits and whether the visits shall be supervised.
N.C. Gen. Stat. § 7B-905.1(a), (b) (2017).
In the present case, the challenged finding states the following:
48. ... [Ann] had previously written a letter saying she did not want to visit the parents either. The Court finds it is not in [Ann's] best interest that she be required to attend visitation unless she desires to do so and that visitation is approved by her therapist.
In light of this finding, the trial court ordered that Respondent-father "may visit once every two weeks with [Ann], " the visits "shall last for one hour," and the visits "shall be supervised by MCDSS or someone the agency designates for that purpose." Thus, the trial court's Review Order complied with Section 7B-905.1 by providing a "framework" for visitation, which included both the minimum frequency of visitation and the length of each visit. In re N.B. , 240 N.C. App. at 364, 771 S.E.2d at 570.
Moreover giving Ann discretion was permissible because the trial court did not delegate Ann's custodian complete discretion over her visitation rights; instead, the trial court established the required "framework" and granted Ann discretion based on the evidence. See In re T.H. , 245 N.C. App. 131, 781 S.E.2d 718 (2016) (unpublished) (determining that trial court's order specifying the minimum frequency and length of the visitation satisfied Section 7B-905.1, and that the trial court did not abuse its discretion in permitting the child's foster parents to determine details of visitation between the child and her parents). In making its findings, the trial court relied on a guardian ad litem's report, which stated that "during the past several home visits that [Ann] has begun to act out with negative behaviors" and that Ann's depression had increased. Also, at the permanency planning hearing a guardian ad litem testified that Ann has "been really clear in expressing her desire not to visit" her parents. Therefore, the trial court's Review Order satisfied the requirements of Section 7B-905.1 and were appropriate under the circumstances of the case.
Conclusion
For the reasons stated above, we affirm in part and remand in part for findings consistent with this opinion.
AFFIRMED IN PART; REMANDED IN PART.
Report per Rule 30(e).
Judges MCGEE and MURPHY concur.