In re J.C. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-268
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
IN THE MATTER OF:
J.C., J.C. Johnston County
Nos. 13 JA 101-02
Appeal by respondent-mother from order entered 12 December
2013 by Judge Resson Faircloth in Johnston County District
Court. Heard in the Court of Appeals 9 September 2014.
No brief filed for petitioner-appellee Johnston County
Department of Social Services.
No brief filed for guardian ad litem.
Richard Croutharmel, for respondent-appellant mother.
CALABRIA, Judge.
Respondent-mother (“respondent”) appeals from the trial
court’s permanency planning order which, inter alia, ceased
reunification efforts with respondent. We affirm in part and
vacate and remand in part.
I. Background
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On 27 June 2013, the Johnston County Department of Social
Services (“DSS”) filed petitions alleging that respondent’s
minor children (“the juveniles”) were neglected and dependent,
based upon unresolved conflicts between respondent and the
juveniles’ father, which included false reports of sexual abuse
of the juveniles by the juveniles’ father that had been
fabricated by respondent. After a hearing, the trial court
entered an order which adjudicated the juveniles as neglected
and dependent. In its subsequent disposition order, the trial
court placed the juveniles in the custody of their paternal
grandmother and ordered respondent to have supervised visits
with the juveniles every other week at a supervised visitation
center at her expense. Respondent appealed the adjudication and
disposition orders to this Court, which affirmed both orders. In
re J.C., J.C., ___ N.C. App. ___, 760 S.E.2d 778 (2014).
On 23 September 2013, respondent filed a motion for review
in the trial court seeking, inter alia, reconsideration of the
visitation plan. On 13 November 2013, the trial court conducted
a permanency planning hearing. At the conclusion of the
hearing, the trial court orally concluded that it was in the
juveniles’ best interests to return to their father’s custody,
changed the permanent plan to reunification with the father,
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ordered DSS to cease reunification efforts with respondent, and
ordered that visitation with respondent would be supervised by
DSS until they could find a suitable replacement supervisor. On
12 December 2013, the trial court entered a written order
consistent with its statements from the bench, with the
exception that the court ordered respondent’s visitation to
continue to be supervised at a visitation center at her expense.
Respondent appeals.
II. Appellate Jurisdiction
As an initial matter, we note that on 31 March 2014,
respondent filed a petition for writ of certiorari with this
Court in which she asserted that her appeal from the order
ceasing reunification efforts was interlocutory pursuant to N.C.
Gen. Stat. § 7B-1001(a)(5) (2013), which limits the
circumstances under which a respondent may appeal from an order
ceasing reunification efforts which were not present in the
instant case. However, “[a]ny order, other than a nonsecure
custody order, that changes legal custody of a juvenile” is
appealable to this Court. N.C. Gen. Stat. § 7B-1001(a)(4)
(2013). In the instant case, the trial court’s permanency
planning order returned the juveniles to their father’s custody.
Thus, pursuant to N.C. Gen. Stat. § 7B-1001(a)(4), the trial
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court’s order was appealable as an order changing custody, and
respondent’s petition for writ of certiorari is dismissed as
moot. See In re J.V. & M.V., 198 N.C. App. 108, 111, 679 S.E.2d
843, 844-45 (2009).
III. Subject Matter Jurisdiction
Respondent first argues that the trial court failed to make
sufficient findings in its permanency planning order to
establish its subject matter jurisdiction over the instant case.
Specifically, respondent contends that because the juveniles and
their parents were involved in a previous neglect case in
Kentucky, the trial court was required to make specific
jurisdictional findings pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act. We disagree.
Respondent previously made this same argument in her appeal
of the prior neglect and dependency adjudication and disposition
order entered in this case. In J.C., we rejected the argument:
Although this Court has recognized that
making specific findings of fact related to
a trial court’s jurisdiction under N.C. Gen.
Stat. § 50A-201(a)(1) would be the better
practice, the statute states only that
certain circumstances must exist, not that
the court specifically make findings to that
effect. Therefore, so long as the trial
court asserts its jurisdiction and there is
evidence to satisfy the statutory
requirements, the trial court has properly
exercised subject matter jurisdiction.
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___ N.C. App. at ___, 760 S.E.2d at 780 (internal quotations and
citations omitted). In the instant case, respondent
acknowledges that the evidence from the permanency planning
hearing demonstrates that “neither the parents nor the children
continue to live in Kentucky[.]” As in respondent’s previous
appeal, this is sufficient to establish the trial court’s
jurisdiction to enter the permanency planning order. See id.
(Holding that jurisdiction was established when “the evidence
shows that the juveniles have continuously resided with a parent
in North Carolina since December of 2011”). This argument is
overruled.
IV. Cessation of Reunification Efforts
Respondent contends the evidence and the trial court’s
findings of fact do not support its order changing the permanent
plan to reunification with the juveniles’ father and ceasing
reunification efforts with respondent. We disagree.
A court may order DSS to cease reunification efforts if it
makes a written finding of fact that “[s]uch 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)(1)
(2013). “This Court reviews an order that ceases reunification
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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). “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.” In re Robinson,
151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (internal
quotations and citations omitted).
In the instant case, the trial court found that further
efforts toward reunification with respondent would be “futile
and inconsistent with the juveniles’ health, safety and need for
a permanent home within a reasonable period of time[.]” The
court then further found that respondent failed to provide
verification she had completed a psychological evaluation;
failed to visit the juveniles; failed to recognize her role in
the juveniles’ placement; failed to cooperate with DSS’s
attempts to provide services; and failed to make progress on her
case plan since May 2013. Each of these findings is supported
by the testimony of the social worker who supervised
respondent’s case at the time of the permanency planning
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hearing. Specifically, the social worker described respondent’s
history of resisting DSS involvement and lack of progress on her
case plan, her conflicting statements about her responsibility
in contributing to the juveniles’ current situation, and her
failure to attend visitation. Although, as respondent contends
on appeal, her own testimony contradicted some of the social
worker’s testimony, it was the trial court’s responsibility to
weigh the conflicting testimony and make appropriate findings of
fact. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434,
435 (1984). Ultimately, the trial court’s findings, which were
supported by competent evidence, supported the trial court’s
decision to cease reunification efforts. This argument is
overruled.
V. Visitation
Respondent argues that the visitation portion of the trial
court’s order was erroneous for two reasons. First, respondent
contends that the trial court lacked the authority to order her
to pay the costs of supervised visitation. However, that
argument has already been rejected by this Court in respondent’s
previous appeal. See J.C., ___ N.C. App. at ___, 760 S.E.2d at
782 (“[I]n the best interests of the juvenile, the trial court
has the authority to set conditions for visitation, as the trial
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court did in this case by requiring respondent to pay the costs
of visitation.”). In addition, respondent contends that the
written visitation order conflicts with the trial court’s oral
pronouncement regarding visitation and therefore must be
vacated. We agree with this contention.
“[A] judgment is entered when it is reduced to writing,
signed by the judge, and filed with the clerk of court.” N.C.
Gen. Stat. § 1A-1, Rule 58 (2013). Thus, “[a]nnouncement of
judgment in open court merely constitutes ‘rendering’ of
judgment, not entry of judgment.” Abels v. Renfro Corp., 126
N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997). “If the written
judgment conforms generally with the oral judgment, the judgment
is valid.” Edwards v. Taylor, 182 N.C. App. 722, 727, 643
S.E.2d 51, 54 (2007). However, if there is a discrepancy
between the written order and the oral rendering of the order in
open court as reflected by the transcript, the transcript is
considered dispositive. See State v. Sellers, 155 N.C. App. 51,
59, 574 S.E.2d 101, 106-07 (2002).
In the instant case, the trial court heard arguments
regarding respondent’s ability to pay for supervised visitation
and her objections to the imposition of those costs. DSS
specifically recommended that respondent continue her visits
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with the juveniles at a visitation center at respondent’s
expense. At the conclusion of the hearing, the trial court made
two statements which constituted its order regarding visitation:
“I’m going to adopt the recommendations put for[th] by the
Department with the exception that DSS will supervise until they
can find a replacement[,]” and “I’m adopting every
recommendation [by DSS] with the exception of the visitation
will be at Social Services every other week.” Nonetheless, in
its written order, the trial court directly contradicted the
order it rendered from the bench, instead adopting DSS’s
recommendation by ordering that respondent’s visitation would
continue to be at a visitation center at respondent’s expense.
The difference between the trial court’s pronouncement in
open court and its written order is substantive and the change
in the written order cannot be said to generally conform to the
court’s oral statement. The written judgment directly
contradicts the trial court’s statements from the bench, and as
a result, the portion of the trial court’s order regarding
visitation must be vacated and remanded for entry of an amended
order which accurately reflects the trial court’s oral
disposition. See id. We note that
[i]t is the duty of the trial judge to
ensure that a written order accurately
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reflects his or her rulings before it is
signed, and to modify the order if it is not
correct. It is also the duty of counsel
preparing the order to ensure that it
accurately reflects the trial court's
findings and rulings.
State v. Veazey, 191 N.C. App. 181, 196, 662 S.E.2d 683, 692
(2008) (Steelman, J., concurring in the result).
VI. Conclusion
The trial court had subject matter jurisdiction to enter
the permanency planning order. The trial court properly found
the necessary facts which supported its decision to cease
reunification efforts with respondent, and accordingly, that
portion of the trial court’s order is affirmed. The court was
authorized to order respondent to participate in supervised
visits at a visitation center at respondent’s expense. However,
the trial court instead ordered, in open court, that respondent
would have supervised visits at DSS. Since the trial court’s
written order contradicted its oral disposition, the portion of
the trial court’s order regarding visitation is vacated and
remanded for a new order which is consistent with the court’s
oral pronouncement.
Affirmed in part and vacated and remanded in part.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).