In re A.G.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-807
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF:
A.G. Durham County
No. 07 J 23
Appeal by respondent-mother from order entered 2 April 2013
by Judge Brian C. Wilks in Durham County District Court. Heard
in the Court of Appeals 13 January 2014.
Robin K. Martinek for petitioner-appellee Durham County
Department of Social Services.
Duncan B. McCormick for respondent-appellant mother.
Derrick J. Hensley for guardian ad litem.
HUNTER, Robert C., Judge.
Respondent appeals from an order that ceased reunification
efforts with her minor child, A.G. (“Andy”) and placed him in
the legal and physical custody of a former foster parent. We
affirm.
Background
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On 25 January 2007, the Durham County Department of Social
Services (“DSS”) filed a petition alleging that Andy and two
siblings were neglected juveniles. DSS assumed non-secure
custody of the children that same day. After a hearing in April
and May of 2007, the trial court entered an order that
adjudicated Andy and his siblings neglected and dependent
juveniles and continued them in the legal and physical custody
of DSS. The court found that respondent’s mental health
conditions interfered with her judgment and impaired her ability
to care for and protect her children. To remedy the conditions
that led to or contributed to the removal of the children from
her custody, the trial court directed respondent to obtain a
full psychological evaluation, including an assessment for
medication, and that she receive recommended treatment.
For several months, respondent worked with DSS to correct
the conditions that led to the removal of Andy and his siblings
from her home. The trial court rewarded respondent’s efforts
when, by order dated 7 April 2010, it returned Andy and his
siblings to her custody. However, on 12 May 2010, DSS filed
another petition alleging Andy and his siblings were neglected
juveniles, and again took non-secure custody of the children.
After a hearing on 1 December 2010, the trial court entered an
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order on 6 January 2011 adjudicating Andy and two of his
siblings neglected juveniles. The court found that respondent
was unable to manage her frustrations with her children, which
resulted in her use of inappropriate discipline with the
children. Nevertheless, the court returned Andy and his
siblings to respondent’s custody pursuant to a court-ordered
protection plan, which specifically included no physical
punishment.
After his return home, significant conflict developed
between Andy and respondent, resulting in his placement in a
rapid response placement provided by DSS to address his
aggressive behavior and language towards respondent. Andy
returned home on 14 June 2011, but on 4 July 2011 respondent
called the police after an altercation with Andy. Andy was
charged with simple assault, and while being taken to a
relative’s home to spend the night he disclosed suicidal
ideation. Andy was transported to the emergency room, and
admitted to UNC Hospital the next day. On 12 July 2011, Andy
was released from the hospital with the agreement that he not
return to respondent’s home. Respondent agreed to place Andy
with a former foster parent.
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Andy continued to live with his former foster parent for
the next several months and had biweekly supervised visitation
with respondent and his siblings. After a hearing on 13
December 2012, the trial court entered an order changing the
permanent plan for Andy to custody with the foster parent and
granting legal and physical custody of Andy to the foster
parent. The court further found that Andy’s reunification with
respondent was not a viable option, and reunification efforts
should therefore cease. Respondent appeals.
Discussion
We first address respondent’s argument that the trial court
erred in making finding of fact number fifteen, which states:
The Mother continues to believe that she has
never done anything to harm the child or
contribute to the child being out of the
home. She does not believe the child has
suffered trauma.
We review this finding of fact to determine whether it is
supported by competent evidence in the record. In re P.O., 207
N.C. App. 35, 41, 698 S.E.2d 525, 530 (2010).
In the 2011 order adjudicating Andy neglected, the trial
court found that respondent “never denied that she used physical
punishment to discipline the children[, and] contends her
children have never been hurt and that her actions were
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exaggerated and embellished by others.” Respondent continued to
blame others for Andy’s behavioral problems at the permanency
planning hearing, where she asserted that his current problems
were caused by people telling him that if he were not in her
custody he could become a United States citizen. Additionally,
when specifically asked if she thought she had done anything to
contribute to the trauma Andy has experienced, she replied that
“things did happen” and “things did affect him,” but stated that
she did not “think that the things that happen[ed] in the past”
were the cause of Andy’s current behavioral problems.
Respondent’s testimony reveals that she has not accepted that
her inappropriate discipline of Andy and failure to provide
proper care for Andy contributed to his removal from her home,
and were an underlying cause of the trauma he continues to
suffer. Accordingly, we overrule this argument.
Respondent also argues the trial court erred in ordering
that DSS cease providing her with efforts to reunify her with
Andy. Respondent contends that the trial court’s findings of
fact regarding her visitation with Andy and participation in
therapy do not support its conclusion. Respondent further
argues that the court erred in concluding that reunification was
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inconsistent with Andy’s health, safety, and need for a
permanent home within a reasonable time. We disagree.
A trial court may order that
reasonable efforts to eliminate the need for
placement of the juvenile shall not be
required or shall cease if the court makes
written findings of fact that:
(1) Such 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 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).
Here, the trial court found:
6. [Andy] continues to receive therapy with
Mary Sue Cherney. He continues to make
progress in therapy learning to understand
mature, interpersonal relationships and
reciprocity. [Andy] has started taking
[medication] as recommended by Dr. Chevy
from the Center for Child and Family Health
to address depressive symptoms and make
[him] more receptive to therapy. Since
being on the medication, his behavior has
leveled out and he is sleeping a lot better.
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7. [Andy] visits with [respondent] and his
siblings every other Thursday, supervised by
Durham DSS at the Genesis Home from 4 pm to
5 pm. The interaction between [Andy] and
[respondent] has not changed much since the
last hearing. There continues to be minimal
communication between the two. [Andy]
indicates that the visits are not for him to
visit with his mother but to spend time with
his sisters.
. . . .
9. [Andy] continues to do well in [the
foster parent’s] home. She is providing a
safe and nurturing environment for [Andy]
and ensuring that all of his basic needs are
being met.
. . . .
12. [Respondent] meets with Karla Siu,
Family Therapist, once every three weeks and
has missed one appointment since the last
court date. This session was rescheduled.
[Andy] has not been a part of these
sessions. It is unknown when family therapy
that will incorporate [Andy] will begin.
Ms. Siu feels that family therapy would be
more damaging than helpful at this time and
there is a need to get to know [respondent]
before engaging [Andy]. While [respondent]
is keeping her appointments, she has not
been very engaged in the sessions. She has
indicated that she does not trust Karla Siu
and is frustrated with the system.
[Respondent’s] therapy is anticipated to
take approximately one year of weekly
therapy. It is predicted that [respondent]
will be ready for family therapy after she
makes positive progress in two of her
outlined goals for two straight months. It
is unknown when this will happen.
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13. [Andy] is not ready for family therapy
at this time, but he is working with Mary
Sue Cherney towards preparing for family
therapy.
. . . .
16. [Respondent] has been consistent with
visitation, but there continues to be
problematic communication. [Respondent] was
informed that [Andy] was placed on
medication. She continues to indicate that
she does not want [Andy] on medication.
Respondent does not challenge these findings, and they are thus
binding on appeal. In re I.T.P-L., 194 N.C. App. 453, 462, 670
S.E.2d 282, 287 (2008), disc. review denied, 363 N.C. 581, 681
S.E.2d 783 (2009).
We agree with respondent that the trial court’s findings
support her contention that she has been diligent in attending
her visitation with Andy and her therapy sessions. However,
diligent attendance is insufficient in this instance.
Respondent and Andy have been involved with DSS since 2007, and
have been under the court’s supervision pursuant to an
adjudication of neglect entered in January of 2011. Andy made
progress in his therapy due in part to prescribed medication,
which respondent does not want Andy to take. Nonetheless, it is
still unclear when he will be ready to engage in family therapy
with respondent, a pre-cursor to any reunification between the
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two. Over the two years prior to the entry of the permanency
planning order at issue, respondent made negligible progress in
her therapy sessions and it is unknown when she will achieve
sufficient progress to begin family therapy with Andy.
Additionally, as discussed above, respondent continues to
believe that she has never harmed Andy or contributed to his
removal from her home.
Given respondent’s lack of progress in her own therapy and
opposition to medication that is assisting Andy’s therapy, we
hold the trial court’s findings of fact show that reunification
efforts would be futile or inconsistent with Andy’s health,
safety, and need for a safe, permanent home within a reasonable
period of time. We conclude that respondent has not shown the
trial court abused its discretion in directing that
reunification efforts cease, and overrule this argument.
Similarly, we overrule respondent’s argument that the trial
court abused its discretion by changing the permanent plan for
Andy to custody with the former foster parent and awarding her
custody of Andy. The purpose of a permanency planning hearing
is to “develop a plan to achieve a safe, permanent home for the
juvenile within a reasonable period of time.” N.C. Gen. Stat. §
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7B-907(a) (2011).1 “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.” In re P.O., 207 N.C. App. at 41, 698
S.E.2d at 530. “We review a trial court’s determination as to
the best interest of the child for an abuse of discretion.” In
re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007).
The trial court’s conclusion to set the permanent plan for
Andy as custody with the former foster parent, and award her
custody of Andy is fully supported by its findings detailing the
uncertainty as to when family therapy could commence and
respondent’s failure to: (1) make progress with her therapy; (2)
acknowledge her role in contributing to the harm and trauma Andy
suffered over the years; and (3) improve her communication and
relationship with Andy during visitation. Based upon these
findings, and her demonstrated opposition to Andy’s use of
medication to complement his mental health therapy, we cannot
say the trial court abused its discretion in setting the
1
N.C. Gen. Stat. § 7B-907 has since been repealed and replaced
by N.C. Gen. Stat. § 7B-906.1. See 2013 Sess. Laws 129, §§ 25-
26. However, N.C. Gen. Stat. § 7B-906.1 is only applicable to
“actions filed or pending on or after” 1 October 2013. 2013
Sess. Laws 129, § 41. Here, the trial court entered the order
from which respondent appeals on 2 April 2013. Thus, we apply
section 7B-907.
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permanent plan for Andy and awarding custody of Andy to the
former foster parent pursuant to that plan. Accordingly, we
overrule this argument.
Conclusion
After careful review, we affirm the trial court’s order.
AFFIRMED.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).