In re: S.P. & J.P. ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1190
Filed: 1 October 2019
Surry County, Nos. 17 JA 48-49
IN THE MATTER OF: S.P. and J.P.
Appeal by Respondent-Father from order entered 21 August 2018 by Judge
William F. Southern, III in Surry County District Court. Heard in the Court of
Appeals 5 September 2019.
Susan Curtis Campbell for petitioner-appellee Surry County Department of
Social Services.
Peter Wood for respondent-appellant father.
James N. Freeman, Jr. for guardian ad litem.
MURPHY, Judge.
Respondent-Father (“Edouard”1) appeals from an order appointing the
Johnsons as guardians of his minor children, Arthur and Cesar. Because no oral
testimony was received at the hearing, we vacate the trial court’s order and remand
for further proceedings.
BACKGROUND
1 Pseudonyms are used for all relevant persons throughout this opinion to protect the juveniles’
identities and for ease of reading.
IN RE: S.P. & J.P.
Opinion of the Court
On 11 July 2017, the Surry County Department of Social Services (“DSS”) filed
petitions alleging that Arthur and Cesar were neglected juveniles. DSS alleged the
children did not receive proper care, supervision, or discipline from their parents and
lived in an environment injurious to their welfare due to their parents’ significant
substance abuse. DSS obtained nonsecure custody of the children and placed them
with the Johnsons, a couple related to the children’s mother.
After a hearing on 17 August 2017, the trial court entered an order on 12
September 2017 adjudicating the children to be neglected juveniles. In its disposition
order, entered the same day, the trial court continued custody of the children with
DSS, ordered the parents to comply with the Family Services Case Plans they had
entered into with DSS, and granted the parents bi-weekly supervised visitation with
the children.
The trial court entered review hearing orders on 31 January 2018 and 22
March 2018. It found the children were doing well in their placement with the
Johnsons and that the parents were making only limited progress on the
requirements of their case plans. The trial court continued custody of the children
with DSS and directed they remain in placement with the Johnsons. The parents
were ordered to comply with DSS requests and the provisions of their case plans and
to submit to immediate drug screening. The trial court modified visitation to two
visits per month to be supervised by the Johnsons.
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IN RE: S.P. & J.P.
Opinion of the Court
On 27 June 2018, the trial court conducted a permanency planning hearing.
The trial court entered its order from that hearing on 23 July 2018 and entered an
amended order on 21 August 2018. In that order, the trial court found the parents
had not made satisfactory progress on their case plans. The trial court set the
primary plan for the children as guardianship and the secondary plan as reunification
and appointed the Johnsons as guardians of the children. The trial court relieved
DSS from further responsibility in the case, discharged the guardian ad litem for the
children, released the parents’ appointed counsel, and held no further hearings were
required in the case. The parents were granted a minimum of one two-hour visit with
the children each month, to be supervised by the Johnsons, and the Johnsons were
authorized to expand visitation in their discretion. Edouard filed timely notice of
appeal.
ANALYSIS
Edouard argues the trial court erred by (1) delegating “its judicial
responsibility by granting the [Johnsons] excessive discretion over [his] visitation
rather than setting specific terms[,]” (2) “awarding guardianship to nonparents
without verifying that the guardians understood the legal significance and had
adequate resources[,]” and (3) terminating “juvenile court custody without [following]
the mandates of [N.C.G.S.] § 7B-911 or opening a case under . . . Chapter 50.”
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IN RE: S.P. & J.P.
Opinion of the Court
We first address Edouard’s argument challenging the trial court’s decision to
award guardianship to the Johnsons. Our review of a permanency planning hearing
is well established:
This Court’s 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. The trial court’s conclusions are
reviewable de novo on appeal.
In re P.O., 207 N.C. App. 35, 41, 698 S.E.2d 525, 530 (2010) (internal citations and
quotation marks omitted).
N.C.G.S. § 7B-906.1(j) states:
(j) If the court determines that the juvenile shall be placed
in the custody of an individual other than a parent or
appoints an individual guardian of the person pursuant to
G.S. 7B-600, the court shall verify that the person receiving
custody or being appointed as guardian of the juvenile
understands the legal significance of the placement or
appointment and will have adequate resources to care
appropriately for the juvenile.
N.C.G.S. § 7B-906.1(j) (2017).
We have previously addressed the requirement of testimony at the
permanency planning hearing to support a permanency planning order. In re J.T.,
252 N.C. App. 19, 796 S.E.2d 534 (2017); In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91
(2010); In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004). In In re J.T., at the
permanency planning hearing, the trial court heard statements from attorneys and
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IN RE: S.P. & J.P.
Opinion of the Court
“accepted into evidence court reports submitted by the guardian ad litem and a DSS
social worker and incorporated those reports by reference in its orders.” In re J.T.,
796 S.E.2d at 536. We stated that “reports incorporated by reference in the absence
of testimony are insufficient to support the trial court’s findings of fact.” Id.
Accordingly, we held that “[b]ecause the trial court did not hear evidence at either of
the permanency planning hearings, the findings in the court’s orders were
unsupported by competent evidence, and its conclusions of law were in error.” Id.
In so holding, we found support in In re D.Y. and In re D.L.:
The determinative facts of the present case are
indistinguishable from those in this Court’s prior decisions
in In re D.Y., 202 N.C. App. 140, 688 S.E.2d 91 (2010), and
In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004), in
which court reports were the only admissible evidence
offered by DSS at the permanency planning hearings. The
trial court’s findings of fact thus were based only on the
court reports, prior orders, and the arguments of counsel.
In both cases, this Court held that the trial court’s
conclusions of law were in error without additional
evidence offered to support the trial court’s findings of fact,
and this Court reversed the permanency planning orders.
Id. at 21, 796 S.E.2d at 536 (citations omitted).
This case is indistinguishable from the aforementioned cases. Here, the only
evidence before the trial court consisted of the reports offered by DSS and the
guardian ad litem. The trial court heard no testimony at the permanency planning
hearing. The entirety of the evidentiary portion of the permanency planning hearing
consists of the following:
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IN RE: S.P. & J.P.
Opinion of the Court
THE COURT: If we can have the preparers of the report
sworn?
(The preparers of the report were sworn.)
The trial court then asked if DSS had anything further, whereupon counsel presented
their arguments to the court. While the trial court could consider the reports as
evidence, these reports and arguments made by counsel alone, without testimony, are
insufficient to support the trial court’s findings of fact. See In re J.T., 796 S.E.2d at
536. Thus, the trial court’s conclusions of law were erroneous. We vacate the order
and remand for further proceedings. Because we must vacate the trial court’s order,
we need not address Edouard’s remaining arguments.
CONCLUSION
For the reasons stated herein, the trial court’s order is vacated and remanded.
VACATED AND REMANDED.
Chief Judge McGEE and Judge COLLINS concur.
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