In re: K.L. & R.E. , 254 N.C. App. 269 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-80
Filed: 5 July 2017
Cumberland County, No. 14 JA 12-13
IN THE MATTER OF: K.L. and R.E.
Appeal by respondent from order entered 12 May 2016 by Judge Toni S. King
in Cumberland County District Court. Heard in the Court of Appeals 5 June 2017.
Christopher L. Carr for petitioner Cumberland County Department of Social
Services and Beth A. Hall for guardian ad litem (joint brief).
Appellate Defender’s Office, by Assistant Appellate Defender Annick Lenoir-
Peek, for respondent-appellant.
TYSON, Judge.
Respondent-mother appeals from an order entered, which removed
reunification as a concurrent permanent plan for her children, K.L. and R.E. We
reverse and remand.
I. Background
This case returns to the Court for a second time. In re K.L., __ N.C. App. __,
778 S.E.2d 104, 2015 WL 4898180 (unpublished). Cumberland County Department
of Social Services (“DSS”) filed a petition, which alleged Respondent-mother’s
children A.J., K.L. and R.E. were seriously neglected and dependent juveniles on 14
January 2014.
IN RE: K.L & R.E.
Opinion of the Court
The allegations of neglect were asserted after DSS received reports alleging
Respondent-mother had abused her autistic grandson, while he was in her care, and
that her adult children also reported that she abused them as children. DSS
voluntarily dismissed the allegations of serious neglect and dependency. Pursuant to
stipulations between the parties, the trial court adjudicated the juveniles to be
neglected at a hearing on 9 June 2014. A.J. has reached the age of majority and is no
longer part of this case.
The trial court’s disposition order retained physical and legal custody of the
juveniles with DSS, and decreed for DSS to continue to make reasonable efforts
towards reunification of the children with Respondent-mother. Following a hearing
on 1 December 2014, the court entered a permanency planning order (“15 January
2015 order”). The court concluded the permanent plan was to place K.L. and R.E.
into the custody of their married adult sibling (“Ms. E.”) Respondent-mother
appealed to this Court.
In her initial appeal, Respondent-mother argued the trial court had improperly
ceased reunification efforts. She asserted no appropriate findings were made, as
required by N.C. Gen. Stat. § 7B-906.1(e)(1), to explain why it would not be possible
for K.L. and R.E. to be returned to her custody within the next six months. She also
asserted the court had not verified whether Ms. E. understood the legal significance
-2-
IN RE: K.L & R.E.
Opinion of the Court
of the custodianship pursuant to N.C. Gen. Stat. § 7B-906.1(j). In re K.L., 2015 WL
4898180 at *4-5.
This Court held that the order appealed from did not show the trial court had
ceased reunification efforts. The trial court’s order specifically directed DSS to
continue efforts to eliminate the need for continued placement of the juveniles outside
of the home and DSS should continue efforts to reunify the juveniles with
Respondent. Id. at *4.
This Court further held the trial court’s 15 January 2015 order made
minimally sufficient findings to comply with N.C. Gen. Stat. § 7B-906.1(e)(1) and (j).
The case was remanded for the trial court to enter a specific visitation schedule with
the juveniles. Id. at *5-8.
On 19 January 2016, a permanency planning hearing was held. On 12 May
2016, the court entered a subsequent permanency planning order which listed a
visitation schedule, as required by this Court upon remand. The court also found
that reasonable efforts to reunify the family would be futile, that the permanent plan
was “previously achieved” and that legal and physical custody of K.L. and R.E. should
remain with Ms. E. Respondent-mother again appeals to this Court.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(5)
(2015).
-3-
IN RE: K.L & R.E.
Opinion of the Court
III. Issues
Respondent-mother asserts the trial court improperly ceased reunification
efforts and failed to follow statutory requirements, prior to granting permanent
custody to Ms. E. Respondent-mother also argues the court violated the requirements
of N.C. Gen. Stat. § 7B-906.1(n) and N.C. Gen. Stat. § 7B-905.1(d).
IV. Standard of Review
“This 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.” 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 N.G., 186 N.C.
App. 1, 10–11, 650 S.E.2d 45, 51 (2007) (citation and internal quotation marks
omitted), affirmed per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008). The trial court’s
conclusions of law are reviewed de novo on appeal. In re D.H., 177 N.C. App. 700, 703,
629 S.E.2d 920, 922 (2006) (citation omitted).
V. Ceasing Reunification Efforts
A. Purpose of Permanency Planning Hearing
Our Juvenile Code provides:
Review hearings after the initial permanency planning
hearing shall be designated as subsequent permanency
-4-
IN RE: K.L & R.E.
Opinion of the Court
planning hearings. The subsequent permanency planning
hearings shall be held at least every six months thereafter
or earlier as set by the court to review the progress made
in finalizing the permanent plan for the juvenile, or if
necessary, to make a new permanent plan for the juvenile.
N.C. Gen. Stat. § 7B-906.1(a) (2016).
This Court affirmed the 15 January 2015 order, which included a finding that
DSS should continue reunification efforts and that custody with a relative to be the
permanent plan. This Court concluded the trial court’s permanency planning order
did not cease reunification efforts. In re K.L, 2015 WL 4898180 at *4.
B. Statutory Requirements
1. N.C. Gen. Stat. § 7B-906.1(d)
At each permanency planning hearing, the trial 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
-5-
IN RE: K.L & R.E.
Opinion of the Court
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 consider
other permanent plans of care for the juvenile
pursuant to G.S. 7B-906.2.
(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) (2016) (emphasis supplied).
The trial court’s order 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.” In re L.M.T., 367 N.C. 165, 167–68, 752 S.E.2d 453, 455 (2013)
(quotation marks omitted).
At the 19 January 2016 permanency planning hearing, DSS social worker
Stacy Williams testified and DSS offered her report into evidence. Ms. Williams
-6-
IN RE: K.L & R.E.
Opinion of the Court
testified her recommendation was to close the case. She admitted DSS had not been
working toward the juveniles’ reunification with Respondent-mother. Ms. Williams
acknowledged DSS had offered no services to Respondent-mother, since the entry of
her prior notice of appeal in January 2015.
The court made no specific inquiry or findings regarding visitations which had
already occurred. The DSS social worker testified only that the agreed upon
visitation schedule included unsupervised overnight visits.
The trial court made the following finding:
14. That the Court finds that reasonable efforts to reunify
the family would be futile and inconsistent with the
juveniles health, safety, and need for a safe, permanent
home within a reasonable period of time.
No record evidence shows any basis to support such a finding.
The trial court found Respondent-mother had completed “many Court ordered
services,” except family therapy, which had not been offered, prior to the permanency
planning hearing. The court also found, “there has not be a substantial change in
circumstances since the entry of the December 1, 2014 Permanency Planning Order.”
Further hearings had been continued seven times since the 1 December 2014
hearing. No permanency planning hearing had been held since 1 December 2014.
The court released the guardian ad litem on 8 December 2014, prior to Respondent’s
entry of her notice of appeal from the 15 January 2015 order.
DSS made no efforts to recommend or provide services under the ordered
-7-
IN RE: K.L & R.E.
Opinion of the Court
concurrent plan of reunification. No evidence supports and DSS cannot now assert
that a change in the permanent plan was justified, based upon Respondent-mother’s
failure to complete steps necessary to reunify with her children, when she had
completed all required steps and completion of the final family therapy step was
denied to her.
The order addresses the success of the juveniles’ placement with their sibling,
Ms. E. The remaining statutory factors in N.C. Gen. Stat. § 7B-906.1(d) are
inapplicable to the present case. However, the court’s findings do not satisfy the
multiple layers of inquiry and conclusions as are required by our Juvenile Code.
We reject DSS’ argument that by adopting the findings in the previous court
orders, the trial court accomplished its statutory duty of making findings pursuant
to N.C. Gen. Stat. § 7B-906.1(d). These prior findings were the basis of the disposition
order, which provided custody with Ms. E. as the primary plan, and also required
reunification efforts with Respondent-mother to continue. To subsequently remove
reunification as a concurrent permanent plan requires properly admitted evidence to
support findings of fact to allow the court to conclude “efforts to reunite the juvenile
with either parent clearly would be futile or inconsistent with the juvenile’s health or
safety and need for a safe, permanent home within a reasonable period of time.” N.C.
Gen. Stat. § 7B–906.1(d)(3).
Upon remand, no additional evidence was presented or admitted to support
-8-
IN RE: K.L & R.E.
Opinion of the Court
the trial court’s finding that “efforts to reunite the family 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.” Without additional evidence and proper findings
of fact in support, the trial court’s conclusion to cease reunification efforts must be
vacated.
2. N.C. Gen. Stat. § 7B-906.1(e)
At any permanency planning hearing where the juvenile is
not placed with a parent, the court shall additionally
consider the following criteria and make written findings
regarding those that are relevant:
(1) Whether it is possible for the juvenile to be placed
with a parent within the next six months and, if not,
why such placement is not in the juvenile’s best
interests.
(2) Where the juvenile’s placement with a parent is
unlikely within six months, whether legal
guardianship or custody with a relative or some
other suitable person should be established and, if
so, the rights and responsibilities that should
remain with the parents.
(3) Where the juvenile’s placement with a parent is
unlikely within six months, whether adoption
should be pursued and, if so, any barriers to the
juvenile’s adoption.
(4) Where the juvenile’s placement with a parent is
unlikely within six months, whether the juvenile
should remain in the current placement, or be placed
in another permanent living arrangement and why.
(5) Whether the county department of social services
-9-
IN RE: K.L & R.E.
Opinion of the Court
has since the initial permanency plan hearing made
reasonable efforts to implement the permanent plan
for the juvenile.
(6) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-906.1(e) (2015) (emphasis supplied).
The trial court concluded that return of the juvenile to Respondent-mother’s
custody “would be contrary to the welfare and best interest of the juvenile[s].”
Respondent-mother argues the trial court failed to make the relevant inquiries
required by N.C. Gen. Stat. § 7B-901.1(e) when a child is not placed with a parent.
This Court addressed a similar argument in Respondent’s previous appeal. We
held that evidence in the record minimally supported the trial court’s finding, “[t]hat
return of the juveniles would be contrary to the welfare and best interests of the
juveniles inasmuch as the juveniles are in need of more adequate care and
supervision than can be provided by [Respondent-mother] at this time and
[Respondent-mother is] in need of additional services.” In re K.L., 2015 WL 4898180at *5.
This Court’s prior opinion further specified that Respondent-mother’s
psychological assessment recommended she participate in family counseling and that
the juveniles’ therapist should determine when such therapy was appropriate. In
December 2014, DSS informed the court that the juveniles’ therapist believed “that
the children were not ready to engage in family therapy at this time.”
- 10 -
IN RE: K.L & R.E.
Opinion of the Court
At the January 2016 hearing, DSS social worker Williams testified “the last
service the Respondent-mother was supposed to complete” was family therapy. Ms.
Williams testified she had “spoken to the therapist on several different occasions” and
the therapist indicated “it was not a good time to have [Respondent-mother] in
therapy sessions.” She also stated the juveniles were no longer in regular therapy
sessions. She indicated the therapist “really didn’t have an opinion” on the children
spending more time with their mother, because she had not met Respondent-mother.
In the order currently before us, the trial court found the juveniles’ therapist
had “discharged” them from therapy services, while also finding that it had previously
“found that Respondent-mother and the juveniles should engage in therapy.”
While this “discharge” of the juveniles without the family therapy having
actually occurred is questionable, this finding provides minimal support for the
conclusion that returning K.L. and R.E. to Respondent-mother within six months
may not have been possible or contrary to their best interests. Upon remand and at
future permanency planning hearings, the trial court should further inquire whether
family therapy remains necessary. If not, it should be removed from the plan as a
step Respondent-mother is to accomplish.
3. N.C. Gen. Stat. § 7B-906.1(i)
- 11 -
IN RE: K.L & R.E.
Opinion of the Court
Respondent asserts the trial court applied the incorrect standard in assessing
whether or not to change legal custody from Ms. E. back to Respondent-mother. As
this issue needs to be addressed on remand, we agree.
Here, the trial court found there had not been “a substantial change in
circumstances” since the 15 January 2015 order providing Ms. E. primary custody of
K.L. and R.E. “Substantial change in circumstances” is the legal test to review a
change of custody between two parties in a Chapter 50 civil custody action.
DSS argues the present case is controlled by In re A.C., __ N.C. App. __, 786
S.E.2d 728 (2016). In the case of In re A.C., the trial court had previously, by written
order, awarded the respondent-mother sole legal and physical custody of A.C. Id. at
__, 786 S.E.2d at 733. In the same written order, the court had waived further review
hearings and relieved DSS of its responsibilities. Id. at __, 786 S.E.2d at 732.
The trial court in In re A.C. had not entered a civil custody order pursuant to
N.C. Gen. Stat. § 7B–911, but expressly retained juvenile court jurisdiction pursuant
to N.C. Gen. Stat. § 7B–201. Id. at __, 786 S.E.2d at 733.
After receiving sole custody, the respondent-mother left A.C. in the care of
A.C.’s aunt. The aunt filed a “Motion to Reopen, Motion to Intervene, and Motion in
the Cause for Child Custody” within the juvenile proceeding. The motion alleged “a
substantial change in circumstances” since the earlier order had granted respondent-
mother sole custody of A.C. Id. at __, 786 S.E.2d at 732. The court conducted a
- 12 -
IN RE: K.L & R.E.
Opinion of the Court
hearing on the aunt’s motion to modify custody and entered a “Review Order”
granting aunt “the sole legal and physical custody of [A.C.]” Id. at __, 786 S.E.2d at
732. Our Court held “the court was obliged to resolve a custody dispute between a
parent and a nonparent in the context of a proceeding under Chapter 7B.” Id. at __,
786 S.E.2d at 733.
Because the trial court had allowed A.C.’s aunt and caretaker to intervene and
seek custody of A.C. from the respondent-mother after custody had been awarded to
the respondent-mother, the appellate court’s review of the trial court’s review order
awarding custody to the aunt as intervenor also required “recourse to legal principles
typically applied in custody proceedings under N.C. Gen. Stat. Chapter 50, in addition
to those governing abuse, neglect, and dependency proceedings under Chapter 7B.”
Id. at __, 786 S.E.2d at 733. “[O]nce the custody of a minor child is judicially
determined, that order of the court cannot be modified until it is determined that (1)
there has been a substantial change in circumstances affecting the welfare of the
child; and (2) a change in custody is in the best interest of the child.” Id. at __, 786
S.E.2d at 742 (citing Hibshman v. Hibshman, 212 N.C. App. 113, 121, 710 S.E.2d 438,
443 (2011) (citation and ellipsis omitted)).
The trial court in In re A.C., was controlled by N.C. Gen. Stat. § 7B-1000(a)
(2015) which provides that the “court may modify or vacate the order in light of
changes in circumstances or the needs of the juvenile.” See id. at __, 786 S.E.2d at
- 13 -
IN RE: K.L & R.E.
Opinion of the Court
734. This Court held “the burden fell upon intervenor to demonstrate ‘changes’
warranting a modification of the custody arrangement established by the . . . review
order.” Id. at __, 786 S.E.2d at 734. Further, “such changes must have either occurred
or come to light subsequent to the establishment of the status quo which [aunt]
sought to modify.” Id. at __, 786 S.E.2d at 734 (citation omitted).
The trial court in In re A.C. had previously relieved DSS of further duties and
waived further review hearings. The court modified its previous award of custody in
response to a “Motion to Reopen, Motion to Intervene and Motion in the Cause.” Id.
at __, 786 S.E.2d at 732.
Here, the parties were before the trial court at a subsequent permanency
planning review hearing after remand from this Court. At this subsequent
permanency planning hearing, the trial court appears to have attempted to cease
reunification efforts based upon a lack of substantial change in circumstances since
the entry of the previous order. The analysis in In re A.C. is inapplicable.
Respondent-mother was not required to show a substantial change in circumstances
to retain the concurrent plan of reunification.
This Court’s decision in In re J.S., __ N.C. __, 792 S.E.2d 861 (2016) is relevant
here. “The plain language of § 7B–1000(a) states that it is applicable to an order
entered after a review hearing at which the trial court considers whether to modify
- 14 -
IN RE: K.L & R.E.
Opinion of the Court
or vacate a previously entered order ‘in light of changes in circumstances or the needs
of the juvenile.’” Id. at __, 792 S.E.2d at 863. The permanency planning order in In
re J.S. stated it was “entered pursuant to N.C. Gen. Stat. § 7B–906.1.” Id. at __, 792
S.E.2d at 864. We held “that entry of a permanency planning order is governed by
N.C. Gen. Stat. § 7B–906.1 and not by N.C. Gen. Stat. § 7B–1000.” Id. at __, 792
S.E.2d at 864. Here the court’s order is titled, “Permanency Planning Order” and
indicates the “hearing is being held pursuant to N.C. Gen. Stat. § 7B-906.1(e).”
At a permanency planning hearing:
(i) The court may maintain the juvenile’s placement under
review or order a different placement, appoint a guardian
of the person for the juvenile pursuant to G.S. 7B-600, or
order any disposition authorized by G.S. 7B-903, including
the authority to place the child in the custody of either
parent or any relative found by the court to be suitable and
found by the court to be in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-906.1(i) (2016).
Neither Respondent-mother nor DSS need show a “substantial change in
circumstances” to seek modification under the statute. The trial court was required
to address custody and reunification as permanent plans and to consider the best
interest of the juveniles. The trial court found it was “in the best interests of [the
juveniles] that permanent legal and physical custody remain” with Ms. E.
The trial court conflated the requirements of Chapters 50 and 7B and included
an unnecessary and improper test of “substantial change in circumstances” at this
- 15 -
IN RE: K.L & R.E.
Opinion of the Court
stage of permanency planning. It is unclear from the brief transcript and minimal
findings whether the inclusion of this erroneous standard impacted the permanent
plan ordered by the court. Upon remand the court is to review the permanent plans
of custody with a relative and reunification with Respondent-mother under only the
correct statutory standard set forth in § 7B-906.1(i).
4. N.C. Gen. Stat. § 7B-906.2
Respondent-mother contends the trial court failed to make the inquiry
required in N.C. Gen. Stat. § 7B-906.2. DSS concedes N.C. Gen. Stat. § 7B-906.2 is
applicable since the case was pending on 1 October 2015.
a. § 7B-906.2(b)
N.C. Gen. Stat. § 7B-906.2(b) requires reunification remain a primary or
secondary plan, unless the court makes the requisite findings of fact showing 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) (2016). DSS argues the trial
court’s order complied with § 7B-906.2(b) by incorporating by reference the findings
contained in previous orders.
Rule 52 of the Rules of Civil Procedure requires that in all actions tried upon
the facts without a jury, “the court shall find the facts specially and state separately
its conclusions of law . . . .” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2015). The
- 16 -
IN RE: K.L & R.E.
Opinion of the Court
documents incorporated may support a finding of fact; however, merely incorporating
the documents by reference is not a sufficient finding of fact.
“[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.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
Findings of fact must show that the trial court has reviewed the evidence
presented and found the facts through a process of logical reasoning. In re O.W., 164
N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004) (“the trial court must, through
‘processes of logical reasoning,’ based on the evidentiary facts before it, ‘find the
ultimate facts essential to support the conclusions of law.’”) (quoting In re Harton,
156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)).
This Court has repeatedly stated that “the trial court’s findings must consist
of more than a recitation of the allegations” contained in the juvenile petition. In re
O.W., 164 N.C. App. at 702, 596 S.E.2d at 853; Coble v. Coble, 300 N.C. 708, 712, 268
S.E.2d 185, 189 (1980) (“The 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.’” (citation omitted)).
- 17 -
IN RE: K.L & R.E.
Opinion of the Court
Here, the trial court’s unsupported conclusory statement that “reasonable
efforts to reunify the family would be futile and inconsistent with the juveniles’ health
[or] safety” does not meet the statutory or prior case law’s requirements and must be
vacated.
b. § 7B-906.2(d)
N.C. Gen. Stat. § 7B-906.2(d) requires the court make specific written findings
as to each of the following, “which shall demonstrate [the parent’s] 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.
Here, the trial court’s order contains a finding of fact that prior to the initial
appeal, Respondent-mother completed many “Court ordered services.” No other
finding mentions Respondent-mother’s progress, shortcomings, or failures to
accomplish, with respect to the permanent plan. Unchallenged testimony shows DSS
had offered no assistance or services to Respondent-mother since her notice was filed
in the prior appeal.
- 18 -
IN RE: K.L & R.E.
Opinion of the Court
The court’s order makes no mention of Respondent-mother’s cooperation or
lack of cooperation with DSS. Ms. Williams, DSS’ only witness at the hearing, offered
no testimony in this regard.
Respondent-mother testified at the hearing she remained willing to “do
whatever that was asked of her” and that she had completed all of the other services
and steps DSS had asked her to complete. She testified she had not been asked to do
anything since January 2015. DSS did not cross-examine Respondent-mother nor
offer any rebuttal evidence to refute her testimony.
c. § 7B-906.2(c)
N.C. Gen. Stat. § 7B-906.2(c) provides that “[i]n every subsequent permanency
planning hearing,” “the court shall make written findings” about the efforts DSS has
made towards achieving the primary and secondary plans in effect prior to the
hearing. The trial court made no findings of whether DSS had made reasonable
efforts to reunite Respondent with her children.
The trial court’s order “must 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.” In re A.E.C., 239 N.C. App. 36, 42, 768 S.E.2d 166, 170
(2015), cert. allowed, __ N.C.__, 796 S.E.2d 791 (2017). While the written findings
- 19 -
IN RE: K.L & R.E.
Opinion of the Court
do not need to quote the exact language of the statute, the trial “court’s written
findings must address the statute’s concerns.” Id.As stated previously, Ms. Williams testified DSS had provided no reunification
efforts following the 15 January 2015 order. The record on appeal shows DSS
completely disregarded its statutory duty to “finalize the primary and secondary”
plans until relieved by the trial court. See N.C. Gen. Stat. § 7B-906.2(b).
This Court cannot infer from the minimal findings that reunification efforts
would be futile or inconsistent with the juveniles’ health or safety. See In re A.E.C.,
239 N.C. App. at 43, 768 S.E.2d at 171. See also, In re T.W. __ N.C. App. __, __, 796
S.E.2d 792, 795-96 (2016) (holding “if reunification efforts are not foreclosed as part
of the initial disposition pursuant to N.C. Gen. Stat. § 7B–901(c), the court may
eliminate reunification as a goal of the permanent plan only upon a finding made
under N.C. Gen. Stat. § 7B–906.2(b). Only when reunification is eliminated from the
permanent plan is the department of social services relieved from undertaking
reasonable efforts to reunify the parent and child.”).
The trial court’s conclusion of law that reunification would be futile is error
without any evidence in the record to support the findings of fact. In re J.T., __ N.C.
__, __, 796 S.E.2d 534, 536 (2017). We reverse the trial court’s order as it relates to
cessation of reunification efforts.
C. Constitutionally Protected Status
- 20 -
IN RE: K.L & R.E.
Opinion of the Court
Respondent also argues the trial court’s conclusion of law that she is unfit, has
acted inconsistently with her constitutionally protected status as a parent, and has
abdicated her responsibilities as a parent is completely unsupported by any finding
of fact. We agree.
The trial court must clearly “address whether respondent is unfit as a parent
or if her conduct has been inconsistent with her constitutionally protected status as
a parent, should the trial court . . . consider granting custody or guardianship to a
nonparent.” In re P.A., 241 N.C. App. 53, 66–67, 772 S.E.2d 240, 249 (2015).
Findings in support of the conclusion that a parent acted inconsistently with
the parent’s constitutionally protected status are required to be supported by clear
and convincing evidence. See Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503
(2001) (holding that “a trial court’s determination that a parent’s conduct is
inconsistent with his or her constitutionally protected status must be supported by
clear and convincing evidence” (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71
L. Ed. 2d 599, 603 (1982)).
“The clear and convincing standard requires evidence that should fully
convince. This burden is more exacting than the preponderance of the evidence
standard generally applied in civil cases, but less than the beyond a reasonable doubt
standard applied in criminal matters.” In re A.C., __ N.C. at __, 786 S.E.2d at 734
- 21 -
IN RE: K.L & R.E.
Opinion of the Court
(citing Scarborough v. Dillard’s, Inc., 363 N.C. 715, 721, 693 S.E.2d 640, 643 (2009),
cert. denied, 563 U.S. 988, 179 L.Ed.2d 1211 (2011)).
This Court’s inquiry must be “whether the evidence presented is such that a
[fact-finder] applying that evidentiary standard could reasonably find the fact in
question.” Id. at __, 786 S.E.2d at 734 (internal quotation marks and citations
omitted).
No findings of fact in the trial court’s order addresses, whether Respondent-
mother was unfit or how she was acting inconsistently with her protected status as a
parent at the time of the hearing. The trial court’s conclusion is unsupported by
findings of fact.
We reverse the order awarding permanent custody to Ms. E. and remand.
Upon remand, the district court must “address whether respondent is unfit as a
parent or if her conduct has been inconsistent with her constitutionally protected
status as a parent.” In re P.A., 241 N.C. App. at 66, 772 S.E.2d at 249. In light of the
lack of any services offered by DSS since Respondent-mother’s notice in the prior
appeal, further evidence should be taken and proper findings of fact supported by the
required evidentiary standard and burden must be made to support the conclusions
of law. See id.
VI. N.C. Gen. Stat. §§ 7B-906.1(n) and 7B-905.1(d)
- 22 -
IN RE: K.L & R.E.
Opinion of the Court
Respondent-mother argues the trial court committed reversible error when it
waived holding further reviews. We agree.
The trial court may not waive permanency planning hearings unless “the court
finds by clear, cogent, and convincing evidence each of the following”:
(1) The juvenile has resided in the placement for a period
of at least one year.
(2) The placement is stable and continuation of the
placement is in the juvenile’s best interests.
(3) Neither the juvenile’s best interests nor the rights of
any party require that review hearings be held every six
months.
(4) All parties are aware that the matter may be brought
before the court for review at any time by the filing of a
motion for review or on the court’s own motion.
(5) The court order has designated the relative or other
suitable person as the juvenile’s permanent custodian or
guardian of the person.
N.C. Gen. Stat. § 7B-906.1(n) (2016) (emphasis supplied).
Our statutes and cases require the trial court to address all five criteria, make
findings of fact to support its conclusion, and hold its failure to do so is reversible
error. In re P.A., 241 N.C. App. at 66, 772 S.E.2d at 249 (“The trial court must make
written findings of fact satisfying each of the enumerated criteria listed in N.C. Gen.
Stat. § 7B–906.1(n), and its failure to do so constitutes reversible error.”). See also In
- 23 -
IN RE: K.L & R.E.
Opinion of the Court
re L.B., 184 N.C. App. 442, 447, 646 S.E.2d 411, 413–14 (2007) (construing
predecessor statute, N.C. Gen. Stat. § 7B–906(b) (2005)).
DSS concedes the trial court failed to comply with these mandatory provisions
of the statute. DSS asserts even though the exact language was not set forth in the
court’s order, “it is clear that it was the intent of the trial court.” It is not the role of
the appellate court to try to interpret “the intent of the trial court.”
The trial court failed to specifically address whether the juveniles best
interests or a right of a party required reviews every six months under the third prong
of § 7B-906.1(n) and failed to make any finding at all regarding the fourth
requirement. That portion of the trial court’s order purporting to end judicial review
hearings in this case is reversed for lack of supported and written findings of fact on
all five criteria set forth in N.C. Gen. Stat. § 7B-906.1(n).
VII. Conclusion
The Juvenile Code’s requirements must be followed prior to making a
supported conclusion whether to grant Ms. E. permanent custody of K.L. and R.E.
We reverse and remand for additional findings in accordance with N.C. Gen. Stat. §
7B-906.2 before reunification with Respondent-mother as a goal of the permanent
plan can be eliminated.
- 24 -
IN RE: K.L & R.E.
Opinion of the Court
Upon remand, the trial court must also make inquiry and enter necessary
findings according to N.C. Gen. Stat. §§ 7B-906.1(n) and 905.1(d) before further
review hearings may be waived.
The order appealed from is vacated in part and reversed in part. This cause is
remanded to the district court for further proceedings as are consistent with this
opinion. It is so ordered.
VACATED IN PART; REVERSED IN PART AND REMANDED.
Chief Judge McGEE and Judge INMAN concur.
- 25 -