Opinion
No. COA02-559
Filed 20 May 2003 This case not for publication
Appeal by respondent from order entered 31 December 2001 by Judge M. Patricia DeVine in District Court, Orange County. Heard in the Court of Appeals 13 February 2003.
Carol J. Holcomb, for petitioner-appellee Orange County Department of Social Services; and Karen Davidson, for Guardian ad Litem. Winifred H. Dillon for respondent-appellant.
Orange County No. 01 J 86.
The Orange County Department of Social Services (DSS) filed a juvenile petition on behalf of R.T.W. (the juvenile) alleging neglect and dependency on 24 August 2001. The petition alleged that the juvenile was neglected in that he "does not receive proper care, supervision, or discipline from [his] parent" and he "lives in an environment injurious to [his] welfare." The petition alleged that the juvenile was dependent in that his "parent . . . is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement." In an attachment to the petition, it was alleged that respondent, the fifteen-year-old mother of the juvenile, did not want "to parent" the juvenile. It was further alleged that the juvenile was conceived after respondent was raped by respondent's half-brother. The attachment further alleged that the juvenile lived with respondent, respondent's ten-year-old brother, and the juvenile's maternal grandmother, in the maternal grandmother's home. It was further alleged that the home had no electricity other than an extension cord running from the home to the juvenile's great-grandparents' home located two houses away, that the home had no water supply, and that lead-based paint was peeling from the walls inside the home. It was alleged that respondent attended school and had a part-time job, that the juvenile's maternal grandmother was unemployed and an alcoholic, and that the family was unable to locate alternative housing. It was also alleged that there was no relative able to provide for the custody and care of the juvenile. The petition was noticed for a prehearing conference to be held on 29 August 2001, noting that a nonsecure custody order had been entered and that the juvenile had been placed in the temporary custody of DSS. At that prehearing conference, a memorandum of agreement and order was entered, allowing visitation by respondent to be coordinated by DSS and setting a nonsecure custody hearing for 6 September 2001. Respondent and her attorney agreed to the hearing being held beyond the seven-day period normally required. The juvenile's father also entered into an agreement with DSS that his next hearing would be on 1 November 2001.
Following the 6 September 2001 nonsecure custody hearing, the trial court entered a custody order on 22 October 2001 making the single finding of fact that:
1. Present in Court were Charlene Enns, Social Worker for the Orange County Department of Social Services and the Department's attorney, Carol J. Holcomb; Director, Guardian ad Litem Program, Gretchen Aylsworth; Attorney Guardian ad Litem, Karen Davidson; Respondent/mother's Attorney, Jo Ann Ragazzo; and Respondent/father's Attorney, Brian Westrom.
The trial court concluded, in part:
2. That there is reasonable factual basis to believe that those matters as alleged in the Petition are true and the parent, guardian or custodian consents to non-secure custody.
3. It is in the best interest of the juvenile that non-secure custody be continued and that he be placed in foster care/a home approved by the court/a facility operated by the petitioner/a facility approved by the court.
4. Reasonable efforts to prevent or eliminate the need for placement of the juvenile have been made by the Orange County Department of Social Services.
The trial court ordered continuing nonsecure custody and placement authority with DSS and an adjudication for 4 October 2001 as to respondent and 1 November 2001 as to the father.
Following the 4 October 2001 adjudication, the trial court entered a custody order on 1 November 2001, finding that:
1. Present in Court were Janet Martin, Social Worker for the Orange County Department of Social Services and the Department's attorney, Carol J. Holcomb; Guardian ad Litem, Angela Garcia-Lamarca; Director, Guardian ad Litem Program, Gretchen Aylsworth; Attorney Guardian ad Litem, Karen Davidson; Respondent/mother . . . ; and her Attorney, Jo Ann Ragazzo.
2. A Court Report was submitted by Janet Martin, Social Worker for the Orange County Department of Social Services, which was admitted into evidence as her testimony, a copy of which shall be included in the file of this action and the statements of fact contained [t]herein shall be included here in as findings of fact.
3. A Court Report was submitted by Angela Garcia-L[a]marca, the Guardian ad Litem, which was admitted into evidence as her testimony, a copy of which shall be included in the file of this action and the statements of fact contained therein shall be included herein as findings of fact.
The trial court made the following pertinent conclusions of law:
2. As to Respondent/mother . . ., the above-named juvenile is a dependent juvenile within the meaning and scope of N.C.G.S. 7A-517(13) in that he is a juvenile in need of assistance or placement because he has no parent, guardian or custodian responsible for his care or supervision or whose parent, guardian, or custodian is unable to provide for [his] care or supervision or lacks an appropriate alternative child care arrangement.
3. As to Respondent/grandmother . . ., the above-named juvenile is a neglected juvenile within the meaning and scope of N.C.G.S. 7A-523(21) in that he is a juvenile who does not receive proper care, supervision, or discipline from his parents, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of the law. In determining whether a juvenile is a neglected juvenile, it is relevant whether . . . that juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
4. That it is in the best interest of the juvenile named above that custody and placement authority be granted to the Orange County Department of Social Services as remaining in the custody and/or home of [his] parent, guardian caretaker or prior custody is contrary to [his] welfare and best interest.
5. Reasonable efforts to prevent or eliminate the need for placement of the juvenile have been made by the Orange County Department of Social Services.
The trial court ordered, inter alia, that the custody of the juvenile continue with DSS pending future evaluation of respondent's progress by the trial court; that respondent remain at her placement; that neither respondent nor the juvenile return to the juvenile's maternal grandmother's home on 21 November 2001; and that respondent participate in therapy. The trial court set a review hearing for 1 November 2001.
Following the hearing on 1 November 2001, the trial court filed a custody order on 31 December 2001, in which it made essentially the same three findings of fact as in the November order. The trial court concluded in pertinent part:
2. That it is in the best interest of the juvenile named above that non-secure custody and placement authority be granted to the Orange County Department of Social Services as remaining in the custody and/or home of [the juvenile's] parent, guardian caretaker or prior custodian is contrary to [the juvenile's] welfare and best interest.
3. Reasonable efforts to prevent or eliminate the need for placement of the juvenile have been made by the Orange County Department of Social Services.
4. The placement and care of the juvenile are the responsibility of the Orange County Department of Social Services and the Orange County Department of Social Services shall provide and arrange for foster care or other appropriate placement of this juvenile.
5. Reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease in that such efforts 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 ordered, inter alia, that custody of the juvenile continue with DSS, that reunification efforts immediately cease, that all visits cease between the juvenile and respondent, his maternal grandmother and other family members, and that the permanent plan for the juvenile be adoption. The trial court also ordered that a petition to terminate respondent's parental rights be filed within sixty days and that the matter be reviewed on 7 February 2002.
Respondent appeals from the 31 December 2001 custody order. Respondent has not set forth an argument in support of assignments of error 1, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, and 16 and these assignments or error are deemed abandoned. N.C.R. App. P. 28(b)(6); State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 593-94 (1975).
I.
Respondent argues the trial court erred by failing to comply with the provisions in N.C. Gen. Stat. §§ 7B-905, 906, and 907 in that the trial court (a) did not make sufficient findings of fact to support its conclusions of law in the 31 December 2001 order and (b) the trial court's written order was not filed until sixty days after the 1 November 2001 hearing.
We must first determine the type of proceeding from which respondent is appealing. Respondent argues that the trial court failed to comply with the requirements of (1) N.C.G.S. § 7B-905 for dispositional orders, (2) N.C.G.S. § 7B-906 for review of custody orders, and (3) N.C.G.S. § 7B-907 for permanency planning hearings. Neither the 1 November 2001 order nor the 31 December 2001 order set forth the statute under which the trial court was proceeding. The trial court had previously announced that the 4 October 2001 hearing would be an adjudication as to respondent. The order entered 1 November 2001 following the 4 October 2001 hearing is in part consistent with the trial court's previous pronouncement as to the purpose of the 4 October 2001 hearing. The 1 November 2001 order made an adjudication that as to respondent, the juvenile was a dependent juvenile as defined by statute. The trial court also adjudicated that as to his maternal grandmother, the juvenile was a neglected juvenile within the statutory definition. During the 4 October 2001 hearing, the trial court also conducted a dispositional hearing, during which the trial court reviewed reports from interested parties. Therefore, in the 1 November 2001 order, the trial court also made a disposition as to the parties involved in the adjudication portion of the hearing. The trial court concluded that it was in the juvenile's best interest that custody and placement authority be granted to DSS and that reasonable efforts to prevent the need for placement of the juvenile had been made by DSS. The trial court ordered that respondent remain at her placement and undergo treatment, and also ordered that the juvenile remain in the custody of DSS pending review of respondent's progress. The dispositional portions of the 1 November 2001 order comply with the dispositional alternatives listed in N.C. Gen. Stat. § 7B-903(a) (2001).
The trial court in its written order cited both N.C. Gen. Stat. § 7A-517(13) in defining dependency, which was repealed and replaced in July 1999 by N.C. Gen. Stat. § 7B-101(9) (2001), and N.C. Gen. Stat. § 7A-523(21) in defining neglect, which was repealed and replaced in July 1999 by N.C. Gen. Stat. § 7B-101(15) (2001). However, in the transcript of the proceedings, it appears the trial court did make determinations of dependency and neglect under Chapter 7B while in open court. In any matter, the trial court's discussion of neglect and dependency remain essentially unaffected in substance by this change.
A trial court is required to conduct a review hearing within ninety days from the date of the dispositional hearing, pursuant to N.C. Gen. Stat. § 7B-906 (2001). In the present case, the trial court met that requirement and scheduled a hearing for 1 November 2001 to review its decision from the 4 October 2001 hearing. Respondent appeals from the 1 December 2001 order that resulted from that review hearing.
Though not before us, the trial court's decision to designate a permanent plan of adoption following the 1 November 2001 hearing appears to have been inappropriate. Although a permanency planning hearing under N.C. Gen. Stat. § 7B-907 "may be combined, if appropriate, with a review hearing required by G.S. 7B-906," the judge must designate such a hearing as a permanency planning hearing. N.C.G.S. § 7B-907(a) (2001). It does not appear from the record that the trial court so designated the 1 November 2001 hearing. Further, under N.C. Gen. Stat. § 7B-507(c) (2001), the trial court is to direct that a permanency planning hearing be held within 30 calender days after a hearing in which the court determines that reasonable efforts to eliminate the need for the juvenile's placement are not required or shall cease. The 1 November 2001 hearing was the first time the trial court made such determination; however, it does not appear that any further hearing was held on permanency planning.
In a review hearing pursuant to N.C.G.S. § 7B-906, the trial court is required to consider the following criteria and make written findings regarding those that are relevant:
(1) Services which have been offered to reunite the family, or whether efforts to reunite the family clearly would be futile or inconsistent with the juvenile's safety and need for a safe, permanent home within a reasonable period of time.
(2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.
(3) Goals of the foster care placement and the appropriateness of the foster care plan.
(4) A new foster care plan, if continuation of care is sought, that addresses the role the current foster parent will play in the planning for the juvenile.
(5) Reports on the placements the juvenile has had and any services offered to the juvenile and the parent, guardian, custodian, or caretaker.
(6) An appropriate visitation plan.
(7) . . . .
(8) When and if termination of parental rights should be considered.
(9) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-906(c) (2001). N.C. Gen. Stat. § 7B-906(d) (2001) permits the trial court to enter any disposition authorized under N.C.G.S. § 7B-903, including "continuing the placement under review or providing for a different placement as is deemed to be in the best interests of the juvenile." However, the trial court is authorized to take these actions only after making the required findings of fact under N.C.G.S. § 7B-906(d).
N.C.G.S. § 7B-906(c) and (d) specifically require the trial court to make appropriate findings of fact when reviewing an order pursuant to N.C.G.S. § 7B-906. An examination of the 1 December 2001 order reveals that the trial court did not make the appropriate findings of fact.
"In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . ." N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2001). Our Supreme Court noted in Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982), that "a proper finding of facts requires a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment."
Our Supreme Court has stated that "[t]he requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead `to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.'" Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (quoting Montgomery v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29 (1977)). A trial court is only required to make ultimate findings of fact, as opposed to evidentiary findings of fact. Armstrong v. Armstrong, 322 N.C. 396, 405-06, 368 S.E.2d 595, 600 (1988). "Ultimate facts are the final facts required to establish [petitioner's] cause of action or [respondent's] defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts." Smith v. Smith, 336 N.C. 575, 579, 444 S.E.2d 420, 422 (1994) (citations omitted). "Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted). See also Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000) (noting that "mere recitations of the evidence" are not the ultimate findings required, and "do not reflect the processes of logical reasoning" required) (citation omitted); Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988) (holding that the trial court failed to find the "ultimate facts" where "[f]or the greater part, [the findings of fact] are only recitations of the evidence. They merely set forth, sometimes verbatim, the contents of letters exchanged between petitioner and respondent."). The trial court is required to make the determination of the ultimate findings of fact in its order. Shore v. Norfolk National Bank of Commerce, 207 N.C. 798, 799, 178 S.E. 572, 572-73 (1935) (holding that the trial court must specifically find the facts and cannot simply "indicate from what source the facts may be gleaned"); In re Harton, ___ N.C. App. ___, ___, 577 S.E.2d 334, 337 (2003) ("When a trial court is required to make findings of fact, it must make the findings of fact specially.") (citation omitted).
The findings of fact as stated by the trial court in the present case do not meet these requirements. As shown above, both the 1 November 2001 and 31 December 2001 orders listed three findings of fact: (1) a statement concerning who was present at the hearing; (2) a statement that DSS made a report and that the trial court incorporated that report as the findings of fact; and (3) a statement that the juvenile's guardian ad litem made a report and that the trial court incorporated that report as the findings of fact. Respondent argues that, while the trial court can consider written reports in making its decision, the trial court must still make findings of fact based on the credible evidence in these reports if it chooses to rely on them. We agree.
The use of reports by the trial court in a disposition or a review is clearly permitted by our statutes. See N.C. Gen. Stat. § 7B-901 (2001); In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638 (1983), modified and affirmed, 311 N.C. 586, 319 S.E.2d 567 (1984). However, in no way does this authority allow a trial court to delegate its factfinding duty. In re Harton, ___ N.C. App. at ___, 577 S.E.2d at 337 (citation omitted). The trial court's conclusions in the 31 December 2001 order cannot be supported solely by the incorporation of the reports by DSS and the juvenile's guardian ad litem. While the trial court can use these reports in making its findings of fact, it is not appropriate for the trial court to broadly incorporate these written reports as the findings of fact. We must remand this case to the trial court for appropriate findings consistent with the requirements of N.C.G.S. § 7B-906.
Respondent also argues the trial court erred in not entering a written order from the 1 November 2001 hearing within thirty days as required by N.C.G.S. § 7B-906(d). Petitioner points out that the portion of the statute directing that the order resulting from a review hearing be entered no later than thirty days from the hearing did not become effective until 1 January 2002, after the date of the review hearing at issue. Compare N.C.G.S. § 7B-906(d) (2001), with N.C.G.S. § 7B-906(d) (repealed). Therefore, even though the written order was not entered until 31 December 2001, the thirty-day requirement did not apply in the present case.
II.
Respondent also argues the trial court erred in its conclusions that petitioner made reasonable efforts to prevent the need for placement of the juvenile and that further efforts at reunification would be futile. "A `conclusion of law' is the court's statement of the law which is determinative of the matter at issue [and] . . . must be based on the facts found by the court . . . ." Montgomery, 32 N.C. App. at 157, 231 S.E.2d at 28-29 (citations omitted). We are unable to review this assignment of error without appropriate findings of fact by the trial court. We remand to the trial court for appropriate findings of fact.
Remanded.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).