In re: T.D.N. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-787
No. COA22-240
Filed 6 December 2022
Brunswick County, No. 18 JA 110
IN THE MATTER OF: T.D.N.
Appeal by Respondent-Mother from an order entered 16 September 2021 by
Judge Pauline Hankins in Brunswick County District Court. Heard in the Court of
Appeals 21 September 2022.
Mark L. Hayes, for Respondent-Mother.
Jane R. Thompson, for Brunswick County Department of Social Services,
Petitioner-Appellee.
N.C. Administrative Office of the Courts Guardian ad Litem Program, by
Michelle FormyDuval Lynch, for Guardian ad Litem.
WOOD, Judge.
¶1 Respondent-Mother appeals the modification of a permanency planning order
that terminated efforts to reunite Mother with her child. We hold competent evidence
supports the trial court’s factual findings, but certain factual findings, legal
conclusions, and decrees are materially inconsistent. We vacate and remand the
order.
I. Background
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¶2 On 24 February 2017, Todd1 was born to Mother and Father. Todd has medical
diagnoses which affect his development such that he experiences seizures and
requires constant medical attention.
¶3 On 18 November 2019, Brunswick County Department of Social Services
(“DSS”) visited Mother’s home after receiving a concerning report that Mother had
been impaired while caring for Todd. While DSS was at Mother’s home, Mother was
not able to stand without support, spoke with slurred speech, and was not able to
properly focus. Mother was belligerent toward DSS, Father, and law enforcement,
who soon arrived upon the request of DSS. DSS later took custody of Todd and
removed him from the home.
¶4 On 27 November 2019, the trial court continued nonsecure custody of Todd
with DSS and ordered Mother to have a minimum of one hour supervised visitation
with Todd every week. The trial court further ordered Mother to work with DSS to
develop a case plan to “allow her to be intricately [sic] involved in the child’s care.”
¶5 On 12 December 2019, the trial court conducted another nonsecure custody
hearing and continued custody with DSS. The trial court ordered Mother to cooperate
with medical staff at Duke Hospital where Todd frequently was seen due to his
developmental diagnoses.
1 A pseudonym is used here to protect the identity of the child.
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¶6 On 31 March 2020, the trial court adjudicated Todd a neglected juvenile.
Mother stipulated that she was not able to properly care for or supervise the child at
the time of the 18 November 2020 incident and that she “created an environment
injurious to the welfare of the juvenile.” The trial court cited Mother’s mental
instability as a contributing factor in the initial adjudication order. This same day,
the trial court entered a disposition order. The trial court ordered Todd to remain in
the legal and physical custody of DSS. Mother and Father were permitted
unsupervised time with Todd for four and a half hours every day. DSS was ordered
to pursue reunification efforts between Todd and his parents while they worked to
comply with their case plans. The case plans had Father and Mother pursue mental
health treatment, cooperate with Todd’s in-home nursing staff, re-establish
occupational and speech therapy services for Todd, and dispose of Todd’s expired
prescription medications.
¶7 On 19 August 2020, the trial court entered a review order and authorized DSS
to begin a trial home placement with Mother. However, on 30 October 2020, the trial
court entered a permanency planning order which modified Mother’s contact with
Todd due to concerns about her ability to properly supervise or care for him by herself
following a home visit by a DSS worker on 30 September 2020. On that day, a DSS
worker visited the home and observed Todd alone in the living room. Mother was
nowhere to be seen, and, after forty-five minutes of repeated attempts to have
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someone answer the door, the DSS worker gained entry with the aid of law
enforcement. Mother was found asleep in her bed while Todd stood in hot bathwater.
When Mother came-to, she was “incoherent” and “had to brace herself while walking.”
Until this incident, DSS recommended that Mother should receive custody of Todd at
the next hearing. The trial court ordered Todd could remain in Mother’s home but
that Mother “shall be supervised at all times around [Todd] by an individual vetted
and approved by the Department.” DSS had in-home nursing care provide nineteen
hours of supervision while Father supervised five hours after he finished work for the
day. At this point, Todd remained in DSS’ custody and reunification with Mother
remained a primary plan.
¶8 Shortly after the previous incident, Mother enrolled in a twelve-week drug
rehabilitation program. Todd was removed from Mother’s home and placed in a foster
home on 12 November 2020, while Mother was absent. Todd remained in foster care
after Mother’s return.
¶9 On 31 December 2020, the trial court ordered DSS to arrange for Todd to
participate in a developmental screening. This was necessary so that DSS could
coordinate daycare services for Todd; however, Mother refused to consent to the
screening.
¶ 10 On 11 January 2021, the trial court entered another permanency planning
order which relieved DSS of reunification efforts with Father, largely due to Father
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not having housing and his unwillingness to participate in services to assist him in
finding housing. However, Father was still permitted to visit with Todd unsupervised
and was allowed to serve as a respite provider. Todd’s foster parents noted Todd
“struggled with engaging with the other children and appears to lack social skills”
but believed that he could excel if placed in a program with proper assistance and
training. Todd bit other children in the home. He was not permitted to be placed in
a daycare due to Mother’s objections to immunizations for religious reasons. He was
subsequently placed in the home of a married couple without other children where
the foster parents noticed that Todd appeared to struggle with separation anxiety.
Mother was able to participate in shared parenting with these providers. At this
time, Mother was willing to attend an inpatient treatment program so that she could
work to regain her ability to properly care for Todd. The trial court noted that Mother
was making adequate progress with her case plan and was cooperating with the
court, DSS, and the Guardian ad Litem. However, the trial court did not return
custody of Todd to Mother “as it is contrary to the juvenile’s health and safety,
however, it may be possible within the next six months, provided his parents are able
to satisfactorily complete the requirements of the Family Services Case Plan and
demonstrate an ability to provide proper care for the child.” Thus, Todd remained in
DSS’ legal and physical custody.
¶ 11 On 18 February 2021, the trial court entered another permanency planning
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order maintaining Todd in the custody of DSS and reinstating reunification efforts
with Father. The court noted that Todd was currently residing in his fourth foster
home but that there were no concerns about his well-being. Mother, at this time, was
able to visit with Todd for a minimum of one hour per week and remained opposed to
immunizing him. The court noted that during a visit, Mother became concerned
about a diaper rash and accused the social worker of sexually abusing Todd. The
caregiver took him to the doctor and confirmed that Todd merely suffered from a
diaper rash. The trial court noted that Mother was “relentlessly” calling Todd’s foster
parents from 9:00 p.m. to 2:00 a.m. and questioning and criticizing their care of Todd.
DSS reported that she had done this with other placement providers as well. These
incidents took place almost one year after Mother participated in a comprehensive
clinical assessment on 13 March 2020. The assessment recommended that Mother
take part in an outpatient program “to manage depressive symptoms and anxiety.”
¶ 12 On 20 May 2021, the trial court entered an order denying DSS’ request to have
Todd vaccinated because he was enrolled in a daycare that did not require
vaccinations. Mother remained opposed to Todd receiving any vaccinations for
religious reasons and from fear that, due to his Epilepsy and other medical issues, he
might suffer greater harm.
¶ 13 During the hearing, a medical expert testified that he did not see a problem
with Todd receiving vaccinations, but he would not vaccinate Todd against Mother’s
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wishes. On this same day, the trial court entered another permanency planning
order. The order did not materially alter the prior order except that visitation with
the parents was modified, and the trial court noted that Mother continued to call the
foster parents at odd hours of the night and had called Todd to tell him that he would
be coming home with her that day.
¶ 14 On 16 September 2021, the trial court entered another permanency planning
order and eliminated reunification with the parents as a permanent plan due to
inadequate progress in their case plan to address the issues that led to Todd coming
into the custody of DSS. In its order, the trial court referenced several incidents
tending to show Mother had not demonstrated mental stability and was no longer
cooperating with DSS. For instance, Mother accused the foster parents of not feeding
Todd and claimed he was losing weight, although his pediatrician confirmed his
weight gain. Mother “would not allow the nursing staff to complete required tasks,
like evaluating [Todd’s] vitals.” Mother missed therapy appointments and tested
positive for Fentanyl on 19 July 2021. The trial court found concerns about Mother’s
use of her prescribed medications due to DSS’ report. Additionally, Mother and
Father continued to raise suspicions with Todd’s placement and said that Todd “will
die in foster care.” In another instance, Mother falsely alerted the hospital that Todd
had been kidnapped and pointed to bruises on his body which she claimed were needle
marks. She alleged that he had been subjected to abuse. The examining doctor did
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not notice any issues but ordered a chest and pelvic X-Ray due to Mother’s concerns.
Mother, at one point, called 911 to have an officer visit Todd’s placement provider to
perform a welfare check at approximately midnight before also contacting a detective
with concerns about her son. An anonymous report from “[Mother’s] friend” was
made to the Horry County Abuse and Neglect Hotline alleging abuse to Todd. Mother
claimed that Todd had a broken rib before an X-Ray revealed otherwise. Mother
eventually revoked her consent to allow Columbus County Schools to conduct a child
development assessment of Todd so that he could enter kindergarten. In sum, the
trial court noted generally that Mother had “not demonstrated mental stability” and
was “minimally cooperating with the Department and the Guardian ad Litem.”
¶ 15 The trial court ordered Mother and Father to continue with their case plans,
Mother to cooperate with medical service providers, and Mother to “participate in a
psychological assessment that includes a parental capacity assessment.” The trial
court noted that Todd was now four years old and in his sixth foster home, had
learned some sign language, and was potty trained. Although the daycare had not
reported any concerns during pick-up and drop-off, DSS expressed concerns that
Mother returned Todd to the caretaker numerous times naked or wearing pullups,
although being potty trained.
¶ 16 The trial court made findings about many other occurrences to support its
finding that Mother had not demonstrated mental stability and was no longer
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cooperating with DSS. Finally, the court found that
51. Continued efforts toward reunification clearly would
be unsuccessful, futile, inconsistent and contrary to the
health, safety and best interests of the child to secure a
safe, stable home within a reasonable period of time and
the Department should continue to be relieved of same.
52. That legal custody of the juvenile cannot be returned
to the parents today as it is contrary to the juvenile’s health
and safety, however, it may be possible within the next six
months, provided his parents are able to satisfactorily
complete the requirements of the Family Services Case
Plan and demonstrate an ability to provide proper care for
the child.
¶ 17 Upon these findings, the trial court relieved DSS of reunification efforts and
established the new concurrent plan, “the primary plan being custody with a court-
approved caregiver and the secondary plan being guardianship.”
¶ 18 On 14 December 2021, Mother filed a timely notice of appeal of the permanency
planning order alleging that material portions of the order were improperly
contradictory and that several findings of fact were not supported by competent
evidence.
II. Standard of Review
¶ 19 We review a permanency planning order to determine “whether there is
competent evidence in the record to support the findings and whether the findings
support the conclusions of law.” In re J.T., 252 N.C. App. 19, 20, 796 S.E.2d 534, 536
(2017) (quoting In re P.O., 207 N.C. App. 35, 41, 698 S.E.2d 525, 530 (2010)). “If the
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trial court’s findings of fact are supported by any competent evidence, they are
conclusive on appeal.” Id. Conclusions of law are reviewed de novo. Id.III. Discussion
¶ 20 After a child is adjudicated neglected and the court orders an initial
disposition, the court holds review or permanency planning hearings. N.C. Gen. Stat.
§ 7B-906.1(a) (2021). At the conclusion of each permanency planning hearing, the
court must make specific findings as to the best permanent plan to achieve a safe,
permanent home for the juvenile within a reasonable period of time. Id. By statute,
[r]eunification shall be a primary or secondary plan unless
the court made written findings under G.S. 7B-901(c) or
G.S. 7B-906.1(d)(3), the permanent plan is or has been
achieved . . . , or the court 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) (emphasis added). Since here the trial court did not
make findings pursuant to sections 7B-901(c) or 7B-906.1(d)(3) and did not conclude
that the permanent plan was unachieved, we look to see if the trial court made
“written findings that reunification efforts clearly would be unsuccessful or would be
inconsistent with the juvenile’s health or safety.” Id. We note here that the trial
court did appropriately make both findings. Within this framework, we now consider
Mother’s arguments.
A. Material Contradictions
¶ 21 Mother first argues that several findings, conclusions, and decrees materially
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contradict others within the trial court’s order. As with orders terminating parental
rights,
[i]t is not unusual for an order . . . to include both favorable
and unfavorable findings of fact regarding a parent’s
efforts to be reunited with a child, and the trial court then
weighs all the findings of fact and makes a conclusion of
law based upon the findings to which it gives the most
weight and importance.
In re A.B., 239 N.C. App. 157, 166, 768 S.E.2d 573, 578 (2015). Such competing
findings are not forbidden and should be encouraged. See In re A.B. J.B., 245 N.C.
App. 35, 47, 781 S.E.2d 685, 693 (2016). However, this Court cannot uphold an order
supported by findings which “are actually antagonistic, inconsistent, or contradictory
such that the reviewing court cannot ‘safely and accurately decide the question.’ ”
Spencer v. Spencer, 70 N.C. App. 159, 168, 319 S.E.2d 636, 643-44 (1984) (quoting
Lackey v. Hamlet City Bd. of Ed., 257 N.C. 78, 84, 125 S.E.2d 343, 347 (1962)).
¶ 22 Here, Mother specifically challenges findings of fact 24 and 52, conclusion of
law 4, and decrees 5 and 8. She claims these writings are irreconcilable with the
cessation of reunification efforts.
[Finding] 24. There are continued concerns regarding
medications that [Mother] is currently taking, and the
Department would like for [Mother] to receive a medication
evaluation.
[Finding] 52. That legal custody of the juvenile cannot be
returned to the parents today as it is contrary to the
juvenile’s health and safety, however, it may be possible
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within the next six months, provided his parents are able
to satisfactorily complete the requirements of the Family
Services Case Plan and demonstrate an ability to provide
proper care for the child.
[Conclusion] 4. [Mother] should make her best efforts to
fully comply with the goals and objectives of her case plan.
[Decree] 5. The Respondent parents are ordered to work
with the social worker, the placement providers and the
treatment team at Duke in a productive manner moving
forward.
[Decree] 8. [Mother] shall participate in a psychological
assessment that includes a parental capacity assessment.
¶ 23 Competent evidence in the record supports finding of fact 24. Though Mother
urges this Court to consider the contradictory nature of DSS’ recommended
medication evaluation when reunification efforts have ceased, the trial court is not
prohibited from noting DSS’ concerns. Although DSS is seeking to be relieved of
reunification efforts with Mother, nothing precludes Mother from continuing to
address DSS’ and the trial court’s concerns in an attempt to ultimately reunify with
her child. The court did not order termination of mother’s parental rights. It changed
“the primary plan [to] custody with a court-approved caregiver and the secondary
plan [to] guardianship.”
¶ 24 Finding of fact 52, on the other hand, is troubling. Immediately preceding this
finding, in finding 51, the trial court writes, “[R]eunification clearly would be
unsuccessful [and] futile.” This finding is necessary before the trial court may allow
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DSS to cease reunification efforts with the parents in accordance with N.C. Gen. Stat.
§ 7B-906.2(b) (2021) (“Reunification shall be a primary or secondary plan unless the
court . . . makes written findings that reunification efforts clearly would be
unsuccessful . . . .”). In finding 52, by contrast, the court states that reunification
“may be possible within the next six months.” A finding that “reunification clearly
would be unsuccessful [and] futile” and a finding that reunification “may be possible
within the next six months,” are materially contradictory. Reunification cannot be
both futile and possible. This contradiction amounts to more than a mere clerical
error and cannot be reconciled with the previous finding in order to relieve DSS of
reunification efforts. See In re A.S., 275 N.C. App. 506, 511, 853 S.E.2d 908, 912
(2020); In re A.P.W., 378 N.C. 405, 2021-NCSC-93, ¶ 31 (“the trial court satisfied the
substance of N.C.G.S. § 7B-906.2(b) by finding that ‘[i]t is not possible for the children
to be returned to the home of a parent or within the next six months and it would be
contrary to the children’s health and safety and their general welfare to be returned
to the home of a parent.’ ”). Certainly, reunification “efforts” by DSS could be “futile”
based on mother’s uncooperative history but be “possible” if Mother changes her
behaviors. We emphasize, however, that a permanency planning order directs the
efforts of DSS—not the efforts of Mother to regain reunification. In re E.A.C., 278
N.C. App. 608, 2021-NCCOA-298, ¶ 37. Though “[t]he focus of [Section 7B-906.2(b)]
is on the actions of the parents,” In re J.M., 276 N.C. App. 291, 2021-NCCOA-92, ¶
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24, the permanency planning order must direct DSS “to make efforts toward
finalizing the primary and secondary permanent plans.” N.C. Gen. Stat. § 7B-
906.2(b) (2021).
¶ 25 Also in finding 51, the trial court states that DSS should “continue” to be
relieved of reunification efforts when the prior primary plan had been reunification.
Standing alone, this apparent oversight might be considered clerical error or needless
“surplusage” as the Guardian ad Litem suggests. Yet, taken together, “the internal
inconsistencies of the order go far beyond” this one issue, and we cannot ignore it. In
re A.B., 239 N.C. App. 157, 167, 768 S.E.2d 573, 579 (2015).
¶ 26 Contrary to the Guardian ad Litem and DSS’ contention, this case is
distinguishable from In re M.T.-L.Y. In that case, the mother also alleged a
contradiction in the findings of fact.
In finding of fact 30, the trial court found that “[t]here is a
slim likelihood of reunification with [Mother] within the
next six months as [she] may have completed some of the
court ordered requirements in [Virginia],” but “has failed
to provide verification of this to date.” (emphasis added).
But finding of fact 33 determined that “[Mother is] not
making adequate progress within a reasonable period of
time under the plan.”
In re M.T.-L.Y., 265 N.C. App. 454, 467, 829 S.E.2d 496, 505 (2019). This Court did
not take issue with the apparent contradiction when “the trial court was merely
performing its statutory mandate in determining the likelihood of reunification
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between [the child] and Mother in the following months” consistent with the
requirements of N.C. Gen. Stat. § 7B-906.1(e)(1). Id. at 467, 829 S.E.2d at 506. More
specifically, this Court held that the finding could not have been contradictory
because “partially performing a required condition does not necessarily preclude a
conclusion that the performance is inadequate.” Id. Here, by contrast, the finding
that reunification efforts would clearly be unsuccessful and futile and DSS’ release
from all reunification efforts most certainly would thwart the possibility of Mother
being reunited with her child given the court’s findings about her mental health
instability.
¶ 27 Concerning conclusion of law 4, a decision that Mother should continue with
her case plan could be perceived as contradictory because, by removing reunification
efforts as a primary plan, it does not follow that Mother should continue to pursue a
case plan as if reunification were still an objective. However, DSS is the party
relieved of making reunification efforts, not she. If Mother still desires to reunify
with her child before a permanent plan is achieved, then it follows that she should
continue to comply with her case plan to correct the conditions which led to the
removal of her child from her home.
¶ 28 As to decree 5 that orders Mother to work with the social workers, placement
providers, and hospital staff, DSS was relieved of reunification efforts, but Mother is
still afforded visitation. In order to effectuate visitation or to be able to participate
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in Todd’s medical treatment, she will necessarily need to work with the social worker,
placement providers, and hospital staff. Again, DSS was relieved of making efforts
toward reunification, but that does not preclude Mother from making her own efforts,
as she is able, to “possibly” reunify with her child.
¶ 29 We agree, however, with Mother’s contention that decree 8 is contradictory at
this stage of the proceedings. The trial court ordered Mother to undergo a
psychological evaluation that includes a parental capacity assessment. Mother has
been working with DSS for four years and has undergone mental health evaluations.
This evaluation specifically would have Mother also complete a “parental capacity
assessment.” Such an evaluation would be unnecessary if reunification were no
longer a goal. Further, the trial court did not make a finding that such an evaluation
would be in the child’s best interest. If reunification were still the goal, then a
presumption could be made that Mother completing the evaluation would be in the
child’s best interest. As the DSS worker noted in her testimony, this evaluation would
“give us some guidance regarding the best and most appropriate permanent plan.”
Paradoxically, by ordering the evaluation, the trial court held that such measure
might aid in a reunification determination while simultaneously holding that
reunification was futile.
¶ 30 DSS and the Guardian ad Litem argue that these apparent inconsistencies
amount to mere clerical errors and that the overwhelming majority of the trial court’s
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findings logically support the conclusion that reunification efforts should cease.
Clerical error, in this context, “is an error resulting from a minor mistake or
inadvertence, especially in writing or copying something on the record, and not from
judicial reasoning or determination.” In re A.S., 275 N.C. App. 506, 511, 853 S.E.2d
908, 912 (2020) (quoting In re R.S.M., 257 N.C. App. 21, 23, 809 S.E.2d 134, 136
(2017)). For the reasons outlined above, it is not clear to us that the trial court’s
inclusion of findings 51 and 52 and decree 8 was the result of “a minor mistake or
inadvertence.”
IV. Conclusion
¶ 31 Because the trial court’s findings and decrees contain irreconcilable
contradictions to the trial court’s cessation of reunification as a permanent plan, we
vacate and remand to the trial court for further consideration and findings not
inconsistent with this opinion.
VACATED AND REMANDED.
Judge TYSON concurs.
Judge CARPENTER concurs in part and dissents in part by separate opinion.
No. COA22-240 – In re T.D.N.
CARPENTER, Judge, concurring in part and dissenting in part.
¶ 32 I respectfully disagree with my colleagues in holding that finding of fact 51 and
finding of fact 52 collectively constitute a “material contradiction,” requiring the trial
court’s order to be vacated and remanded. Furthermore, I disagree with the
majority’s reason for vacating decree 8. Therefore, I dissent in part. I would hold
finding of fact 52 is unsupported by the evidence, and the remaining findings and the
record support the trial court’s cessation of reunification efforts. In addition, I would
hold the trial court erred in entering decree 8 because it did not find that T.D.N.’s
best interests require Respondent-Mother to undergo a psychological evaluation.
¶ 33 North Carolina General Statute § 7B-906.2(b) governs when reunification
efforts may be eliminated by the trial court:
Reunification shall be a primary or secondary plan unless
the court made written findings under [N.C. Gen. Stat. §]
7B-901(c) or [N.C. Gen. Stat. §] 7B-906.1(d)(3), the
permanent plan is or has been achieved in accordance with
subsection (a1) of this section, or the court makes written
findings that reunification efforts clearly would be
unsuccessful or would be inconsistent with the juvenile’s
health or safety. The finding that reunification efforts
clearly would be unsuccessful or inconsistent with the
juvenile’s health or safety may be made at any permanency
planning hearing, and if made, shall eliminate
reunification as a plan.
N.C. Gen. Stat. § 7B-906.2(b) (2021) (emphasis added).
¶ 34 In this case, the trial court made finding of fact 51, which is sufficient to
eliminate reunification as a plan, pursuant to N.C. Gen. Stat. § 7B-906.2(b). Finding
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Carpenter, J., concurring in part and dissenting in part
of fact 51 provides: “Continued efforts toward reunification clearly would be
unsuccessful, futile, inconsistent and contrary to the health, safety, and best interests
of the child to secure a safe, stable home within a reasonable period of time and [DSS]
should continue to be relieved of same.” In conclusion of law 7, the trial court relieved
DSS of reunification efforts with Respondent-Parents. The trial court then set the
new primary plan for the juvenile as custody with a court-approved caregiver and the
new secondary plan as guardianship.
V. Challenged Findings of Fact
¶ 35 In considering Respondent-Mother’s argument that finding of fact 51 and
finding of fact 52 are inconsistent, the majority concludes “[a] finding that
‘reunification clearly would be unsuccessful [and] futile,’ and a finding that
reunification ‘may be possible within the next six months,’ are materially
contradictory” because “[r]eunification cannot be both futile and possible.” Based in
part on this apparent discrepancy, the majority has chosen to vacate and remand the
order in its entirety. Because I conclude the record and the remaining findings leave
no doubt as to the trial court’s intention to cease reunification efforts, I would affirm
the order in part. For reasons discussed in section II, I would vacate decree 8 of the
order.
¶ 36 First, I acknowledge finding of fact 8 addresses the possibility of Respondent-
Parents obtaining physical custody in the next six months and provides in pertinent
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Carpenter, J., concurring in part and dissenting in part
part: “In accordance with [N.C. Gen. Stat. §] 7B-906.1(e)(1), it is not possible for the
juvenile to be returned to his parents within the next 6 months due to the inadequate
progress towards the case plan in addressing the concerns that have led to [DSS’s]
involvement.” Respondent-Parents do not challenge finding of fact 8, and it is
therefore “binding on appeal.” See In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58
(2019).
¶ 37 On the other hand, finding of fact 52 addresses the possibility of Respondent-
Parents obtaining legal custody in the next six months:
That legal custody of the juvenile cannot be returned to the
parents today as it is contrary to the juvenile’s health and
safety, however, it may be possible within the next six
months, provided his parents are able to satisfactorily
complete the requirements of the Family Services Case
Plan and demonstrate an ability to provide proper care for
the child.
¶ 38 Our Juvenile Code sets forth the dispositions the trial court may order: “At any
review hearing, the court may maintain the juvenile’s placement under review or
order a different placement, appoint an individual guardian of the person pursuant
to [N.C. Gen. Stat. §] 7B-600, or order any disposition authorized by [N.C. Gen. Stat.
§] 7B-903 . . . .” N.C. Gen. Stat. § 7B-906.1(d1) (2021).
¶ 39 The grant of legal custody to the juvenile’s parents, while physical custody
remains with DSS or another placement, is not a disposition authorized under N.C.
Gen. Stat. § 7B-906.1, nor is it an alternative disposition allowed under N.C. Gen.
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Stat. § 7B-903. See N.C. Gen. Stat. § 7B-906.1(d1); N.C. Gen. Stat. § 7B-903 (2021).
Therefore, the trial court erred in making two findings, which taken together, support
a disposition not permitted by statute. See In re H.S.F., 177 N.C. App. 193, 202, 628
S.E.2d 416, 422 (concluding the trial court’s grant of physical custody to the juvenile’s
parent and order of physical placement with the juvenile’s grandfather was not
permitted by the Juvenile Code), disc. rev. denied, 360 N.C. 534, 633 S.E.2d 817(2006).
¶ 40 DSS and the guardian ad litem both cite In re Brenner for the proposition that
this Court can affirm an order containing inconsistencies where “[t]he record resolves
the conflict” and no other result could follow from the evidence and remaining
findings. 83 N.C. App. 242, 254, 350 S.E.2d 140, 148 (1986). There, two findings of
fact, which our Court deemed conclusions of law, were “in direct conflict.” Id. at 254,
350 S.E.2d at 148. We affirmed the trial court’s decision where the record left no
doubt as to the trial court’s intentions. Id. at 254, 350 S.E.2d at 148.
¶ 41 Here, like In re Brenner, “[t]he record resolves the conflict” because finding of
fact 52 is not supported by competent evidence and is inconsistent with finding of fact
8 and numerous other findings made by the trial court. See id. at 254, 350 S.E.2d at
148. It is clear the trial court did not intend to consider granting Respondent-Parents
legal custody of T.D.N. within the next six months where the remaining findings
support the cessation of reunification with Respondent-Parents and where the trial
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court found Respondent-Parents could not obtain physical custody of T.D.N. in the
next six months. Moreover, at the conclusion of the 11 August 2021 permanency
planning hearing, the trial court orally announced extensive findings, supporting its
decision to cease reunification efforts with Respondent-Parents. The trial court noted
it had “some serious concerns in th[e] matter,” and made specific findings relating to
Respondent-Mother’s actions during the pendency of the case, including “her
attempts to sabotage placement” and her making false reports concerning T.D.N.’s
welfare. It also made findings regarding Respondent-Parents’ non-compliance with
their case plans. The trial court expressly found legal and physical custody would
remain with DSS. Contrary to written finding of fact 52, the trial court did not find
at the hearing that T.D.N. may be returned to Respondent-Parents within the next
six months. Therefore, I conclude finding of fact 52 is unsupported by competent
evidence in the record. See In re J.T., 252 N.C. App. 19, 20, 796 S.E.2d 534, 536 (2017)
(“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.”).
VI. Decree 8
¶ 42 Next, the majority concludes the trial court’s mandate for Respondent-Mother
to undergo a psychological evaluation, including a parental capacity assessment,
“would be unnecessary if reunification were no longer a goal.” Because the trial court
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did not satisfy the statutory requirement of determining the best interests of the
juvenile, I would not reach the issue of whether the court’s mandate for Respondent-
Mother to complete a psychological evaluation was needed.
¶ 43 North Carolina General Statute § 7B-904 governs the trial court’s authority
over parents of a juvenile adjudicated as abused, neglected, or dependent. N.C. Gen.
Stat. § 7B-904 (2021). In order for the trial court to order a parent to complete a
psychological evaluation, it must “determine whether the best interests of the
juvenile require” such an assessment. N.C. Gen. Stat. § 7B-904(c).
¶ 44 In this case, the trial court’s written order is silent as to whether T.D.N.’s best
interests require Respondent-Mother to complete a psychological evaluation.
Therefore, the trial court did not fulfill the statutory requirement of N.C. Gen. Stat.
§ 7B-904(c). Accordingly, I would vacate decree 8.
VII. Conclusion
¶ 45 I agree with the majority that finding of fact 24 is supported by the evidence
and that conclusion of law 4 is supported by findings of fact. Additionally, I agree
that the trial court did not error in entering decree 5. I disagree with the majority’s
conclusion that finding of fact 51 and finding of fact 52 create an “irreconcilable
contradiction,” requiring this Court to vacate the entire order. I conclude finding of
fact 52 is unsupported by the evidence. Further, I conclude the trial court erred in
entering decree 8 because it did not determine that T.D.N.’s best interests require
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Carpenter, J., concurring in part and dissenting in part
Respondent-Mother to undergo a psychological evaluation. Accordingly, I would
vacate only decree 8 and affirm the rest of the permanency planning order. As such,
I concur in the majority’s opinion in part and dissent in part.