Opinion
No. COA16-93
06-21-2016
IN THE MATTER OF: C.B., C.B.
Leake & Stokes, by Larry Leake, for petitioner-appellee Madison County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam for respondent-appellant mother. Ellis & Winters LLP, by Lenor Marquis Segal, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Madison County, Nos. 14 JA 38-39 Appeal by Respondent-mother from order entered 4 September 2015 by Judge Hal G. Harrison in Madison County District Court. Heard in the Court of Appeals 31 May 2016. Leake & Stokes, by Larry Leake, for petitioner-appellee Madison County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam for respondent-appellant mother. Ellis & Winters LLP, by Lenor Marquis Segal, for guardian ad litem. INMAN, Judge.
Respondent-mother appeals from a permanency planning order that, inter alia, changed the permanent plan for her sons "Cameron" and "Connor" from reunification to guardianship and appointed their paternal grandmother as guardian. We affirm.
We adopt the pseudonyms chosen by the parties to refer to the juveniles.
We note that the trial court's order does not expressly decree the appointment of a guardian. The transcript likewise lacks a discernible statement by the trial court awarding guardianship to the grandmother. However, the parties all agree that the order establishes the guardianship. Further, the trial court's colloquy with the grandmother supports the grandmother's appointment as guardian, as well as the following findings of fact and conclusions of law:
8. The Court finds that the proposed legal guardianship with the grandmother is appropriate.
9. The Court has interviewed the paternal grandmother . . . and finds, that she fully understands the nature and duties of being a guardian, the responsibilities of same, and that she is financially able to be the guardian of the juveniles.
. . . .
11. The Court further finds that it is in the best interest of the juveniles to be placed in guardianship, with [their paternal grandmother] being said guardian.
. . . .
1. The plan should be changed to that of guardianship.
2. The involvement of [DSS] is no longer necessary, and should be terminated.
I.
Madison County Department of Social Services ("DSS") became involved with Respondents' family in June 2012, after receiving a report of a domestic dispute between Respondent-mother and Respondent-father in Cameron and Connor's presence. The dispute involved Respondents "yelling and screaming in front of the children" and resulted in Respondent-father breaking the windows out of a vehicle. DSS recommended services for Respondent-father to address domestic violence and for Respondent-mother to address her mental health issues.
On 16 October 2012, DSS received a report that Respondent-mother "was strung out [on] meth, that she had taken a [domestic violence] protective order out against the respondent father and that she was selling her food stamps and that [Cameron and Connor] were not being fed." Cameron and Connor were placed in kinship care with their paternal grandmother. After providing in-home services to Respondents related to parenting, substance abuse, and domestic violence, DSS closed the case and returned the children to the home in July 2013.
The record is unclear as to the specific dates of the juveniles' two periods in kinship placement with the grandmother. The permanency planning order includes an uncontested finding that, as of the 16 July 2015 hearing date, the juveniles had been placed with their grandmother "for 24 of the past 33 months." It appears that the first period of kinship care actually occurred between 16 October 2012 and 31 July 2013, with the second period commencing on 30 April 2014 and remaining in place at the time of the 16 July 2015 hearing.
DSS received another report on 30 April 2014 that Respondents were using drugs in the home and that Respondent-mother was again using methamphetamine. The report further alleged Cameron and Connor were living in a "filthy" home and that, "due to [Respondents'] substance use[,]" Respondents were failing to administer Connor's medications for Dermatomyositis and that Connor was not attending school. DSS returned the children to their kinship placement with the paternal grandmother and developed in-home service plans for Respondents. Respondent-mother's plan required her to complete a ten-week parenting class and thirty-six hours of substance abuse recovery education; participate in a psychiatric evaluation, family therapy, and Intensive Family Preservation Services; and attend Connor's medical appointments. Respondent-father was tasked to complete a substance abuse intensive outpatient program ("SAIOP"), followed by Batterer's Intervention, parenting classes, family therapy, and a substance abuse recovery group.
On 12 December 2014, DSS filed petitions alleging that eight-year-old Cameron and six-year-old Connor were neglected and dependent juveniles. After recounting DSS's history with the family, the petitions described Respondents' failure to make progress on their case plans or consistently attend their visitation with the children. DSS described Respondent-mother as undertaking "very minimal participation in her case plan or with [DSS]" and noted she had been diagnosed with Bipolar I Disorder and Amphetamine Dependence and had a pending felony drug charge. Respondent-father had submitted nine positive drug screens and had several criminal charges pending. The petitions also alleged that Cameron and Connor had been diagnosed with Post Traumatic Stress Disorder ("PTSD") and were receiving Trauma Focused Cognitive Behavioral Therapy ("TFCBT").
At a hearing held 12 January 2015, Respondents stipulated to the facts as alleged by DSS and agreed that Cameron and Connor were neglected juveniles, in that they lived in an injurious environment. See N.C. Gen. Stat. § 7B-101(15) (2015). By order entered 5 February 2015, the trial court adjudicated the children neglected, "adopted in full" Respondents' DSS case plans, and established a permanent plan of reunification. As part of her treatment plan, Respondent-mother was recommended for SAIOP through RHA Heath Services. The court maintained the children's kinship placement with the paternal grandmother.
The trial court found that "[a]ll allegations in the petition[s] are accepted, other than it was not a window broken out of the house [by Respondent-father] as alleged, but windows were broken out of an automobile."
The trial court held a ninety-day review hearing on 13 April 2015. See N.C. Gen. Stat. § 7B-906.1(a) (2015). DSS advised the court that both Respondents were largely non-compliant with their case plans. A therapist from RHA reported that Respondent-mother had failed to complete the recommended 108 hours of SAIOP treatment and had "disengaged" from all services on 25 February 2015 after submitting a doctored urine sample. Respondent-mother "admitted to falsifying the temperature of the specimen" but refused to provide another sample. The therapist described Respondent-mother's SAIOP attendance between 3 February and 25 February 2015 as "sporadic" and her "participation [as] minimal." DSS further averred that Respondent-mother had not informed her social worker of her psychiatric medications or complied with mental health services at RHA; had not begun the "Safety Seeking" program; had completed just four of ten Love and Logic parenting classes; and had not attended these classes since September 2014. DSS recommended that the court cease reunification efforts and change the permanent plan for Cameron and Connor from reunification with Respondents to guardianship with their grandmother. The court ordered DSS to continue reasonable efforts toward reunification but found as follows:
3. The Court will have no tolerance for altered drug screens or failure to work case plans.The court continued Cameron and Connor's kinship placement.
4. Due to drug use the Respondents have not provided for the children and have not met their case plans.
5. . . . Missed visits or being late for visits will not be tolerated.
. . . .
10. There should be continued effort on the part of the parents to work their case plans in the best interest of their children.
After a permanency planning hearing on 16 July 2015, the trial court entered its subject order on 4 September 2015, finding and concluding as follows:
2. Neither parent began any work on their plan until May, although the plan had long been approved.
3. Completion of the treatment plan is a prerequisite to the completion of the rest of the case plan.
4. Although some progress has been made on the plan since May, the Court is very concerned due to the juveniles showing symptoms of [PTSD].
5. Any treatment for the trauma suffered by the juveniles cannot be accomplished within six (6) months due to the fear which the juveniles have of being returned to the respondent parents.
6. The juveniles being told that the grandmother would be their guardian would give them a level of comfort, which would expedite and enable the therapist to hopefully move faster with regard to completing trauma counseling, which needs to be completed prior to any family counseling.The court changed Cameron and Connor's permanent plan to guardianship and "terminated" DSS's involvement in the case except for the responsibility of scheduling and supervising Respondents' one hour of weekly visitation. The court scheduled a review hearing for 11 August 2015 "to make certain that appropriate visitation is occurring with the juveniles and the respondent parents."
7. The Court concludes that the juveniles cannot be placed with the respondent parents within the next six (6) months and that same is not in their best interest.
8. The Court finds that the proposed legal guardianship with the grandmother is appropriate.
. . . .
11. The Court further finds that it is in the best interest of the juveniles to be placed in guardianship, with [their paternal grandmother] being said guardian.
Respondent-mother gave timely notice of appeal. She now contends that the hearing evidence and the trial court's findings of fact do not support its decisions to cease reunification efforts, change the permanent plan to guardianship, and appoint the paternal grandmother as guardian. Respondent-mother also challenges the sufficiency to the court's visitation award.
II.
Our "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 J.V., 198 N.C. App. 108, 112, 679 S.E.2d 843, 845 (2009) (internal quotation marks omitted). The trial court's findings of fact "are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings." In re L.T.R., 181 N.C. App. 376, 381, 639 S.E.2d 122, 125 (2007) (internal quotation marks omitted). Findings not specifically challenged by the parties are likewise binding on appeal. See In re S.C.R., 198 N.C. App. 525, 532, 679 S.E.2d 905, 909 (2009). Moreover, any errors in the trial court's fact-finding will be deemed harmless if the court's remaining findings are sufficient to support its conclusions of law. See In re Beck, 109 N.C. App. 539, 548, 428 S.E.2d 232, 238 (1993). Finally, in choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B-906.1 (2015), the juvenile's best interest is paramount. In re T.K., 171 N.C. App. 35, 39, 613 S.E.2d 739, 741, aff'd per curiam, 360 N.C. 163, 622 S.E.2d 494 (2005). We review a trial court's assessment of a child's best interest only for abuse of discretion. In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007).
Respondent-mother first challenges the trial court's finding that she did not begin "any work" on her treatment plan until May of 2015. We agree that this finding of fact is not strictly accurate insofar as it disregards Respondent-mother's attendance of four of ten required parenting classes in September 2014 and her aborted entry into SAIOP treatment between 4 February and 25 February 2015. We conclude this inaccuracy is harmless, however, inasmuch as the "core of the finding" accurately reflects Respondent-mother's dilatory approach toward completing her substance abuse and mental health treatment. Beck, 109 N.C. App. at 548, 428 S.E.2d at 238. Respondent-mother's therapist at RHA, Deirdre Doran, confirmed that Respondent-mother did not reengage with the SAIOP program until 13 May 2015, and that this delay resulted in a concomitant delay in the remaining elements of her case plan. While emphasizing Respondent-mother's current compliance with SAIOP, Ms. Doran projected the following timetable for Respondent-mother's treatment plan:
For SAIOP . . . she needs three more classes she'll complete next week and the step down plan [S]eeking [S]afety program is twelve weeks and she'll also participate in the parenting classes which, I believe are eight weeks.Ms. Doran advised the court that Respondent-mother would need "three months at least" to complete her treatment at RHA and would need to "continue to participate in treatment after that as well." Respondent-mother does not challenge the court's Finding of Fact 3 that "[c]ompletion of [her] treatment plan is a prerequisite to the completion of the rest of the case plan." Accordingly, we find no prejudicial error.
Respondent-mother next claims the trial court erred by ceasing reunification efforts without making the findings of fact required by N.C. Gen. Stat. § 7B-906.1(d)(3). We agree with Respondent-mother and the guardian ad litem that the court implicitly ceased reunification efforts by (1) eliminating reunification as Cameron and Connor's permanent plan, (2) establishing a permanent plan of guardianship, (3) awarding guardianship to the paternal grandmother; and (4) terminating DSS's involvement in the case, except for facilitating Respondents' visitation. See In re N.B., ___ N.C. App. ___, ___, 771 S.E.2d 562, 568 (2015). However, we conclude the court made the requisite findings.
Subsection 7B-906.1(d) requires the trial court to "consider" certain factors at each permanency planning hearing and "make written findings regarding those that are relevant[.]" N.C. Gen. Stat. § 7B-706.1(d). Among these factors is "[w]hether efforts to reunite the juvenile[s] with either parent clearly would be futile or inconsistent with the juvenile[s'] safety and need for a safe, permanent home within a reasonable period of time." N.C. Gen. Stat. § 7B-906.1(d)(3). Although an order that ceases reunification efforts must include findings under N.C. Gen. Stat. § 7B-906.1(d)(3), our Supreme Court has clarified that " '[t]he trial court's written findings must address the statute's concerns, but need not quote its exact language.' " Cf. In re A.E.C., ___ N.C. App. ___, ___, 768 S.E.2d 166, 170 (quoting In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)), disc. review denied, 368 N.C. 264, 772 S.E.2d 711 (2015). The findings need only " 'make 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.' " Id. (quoting In re L.M.T., 367 N.C. at 167-68, 752 S.E.2d at 455).
The trial court's findings reflect its due consideration of the evidence with regard to N.C. Gen. Stat. § 7B-906.1(d)(3) and support a determination that further efforts to reunify Respondent-mother with Cameron and Connor "would be futile or inconsistent with [their] safety and need for a safe, permanent home within a reasonable period of time." N.C. Gen. Stat. § 7B-906.1(d)(3); see also In re E.G.M., 230 N.C. App. 196, 211, 750 S.E.2d 857, 867 (2013) ("[T]he determination that grounds exist to cease reunification efforts . . . is in the nature of a conclusion of law that must be supported by adequate findings of fact."). In addition to noting Respondents' significant delay in undertaking their case plans, the court made the following uncontested findings pertinent to N.C. Gen. Stat. § 7B-906.1(d)(3):
3. Completion of the treatment plan is a prerequisite to the completion of the rest of the case plan.
4. Although some progress has been made on the plan since May, the Court is very concerned due to the juveniles showing symptoms of [PTSD].
5. Any treatment for the trauma suffered by the juveniles cannot be accomplished within six (6) months due to the fear which the juveniles have of being returned to the respondent parents.
6. The juveniles being told that the grandmother would be their guardian would give them a level of comfort, which would expedite and enable the therapist to hopefully move faster with regard to completing trauma counseling,
which needs to be completed prior to any family counseling.While these findings specifically address the prospects for reunification within six months, see N.C. Gen. Stat. § 7B-906.1(e)(1) (2015), we cannot say the trial court erred by treating the six months as "a reasonable period of time" for purposes of N.C. Gen. Stat. § 7B-906.1(d)(3). See In re H.D., ___ N.C. App. ___, ___, 768 S.E.2d 860, 862 (2015) (concluding the trial court's findings, including a finding that the juveniles " 'will be unable to go home within six months[,]' " were sufficient to address the concerns of N.C. Gen. Stat. § 7B-507(b)(1) (2013), which is substantively identical to § 7B-906.1(d)(3)). At the time of the permanency planning hearing, Cameron and Connor had been placed outside the home for fourteen consecutive months due to the injurious home environment caused by Respondents' substance abuse and related issues. Under the circumstances of this case, the court's written findings satisfy the requirements of N.C. Gen. Stat. § 7B-906.1(d)(3).
7. The Court concludes that the juveniles cannot be placed with the respondent parents within the next six (6) months and that same is not in their best interest.
. . . .
10. In reality, [the paternal grandmother] has performed the duties of guardian for 24 of the past 33 months.
Because the order at issue did not leave Cameron and Connor in the custody or placement responsibility of DSS, N.C. Gen. Stat. § 7B-507(b) was applicable. In re N.B., ___ N.C. App. at ___ n.3, 771 S.E.2d at 568 n.3. We note that the legislature has since amended N.C. Gen. Stat. § 7B-507 to apply only to non-secure custody orders, repealing subsection (c). 2015 N.C. Session Laws ch. 136, sec. 7 (effective 1 October 2015).
The hearing evidence fully supports the trial court's findings. Therapist Michael Rommal testified about his use of TFCBT to treat Cameron and Connor's "trauma symptoms" including "anxiety and physical aggressions, . . . nightmares, [and] excessive worry." According to Mr. Rommal, Cameron had disclosed "repeated physical and emotional abuse" by his parents, particularly Respondent-mother. Mr. Rommal characterized nine-year-old Cameron as having "been traumatized repeatedly" in Respondents' home and told the court that he had "never encountered this level of trauma" in his clinical practice. Seven-year-old Connor views Cameron as his "protector" and "caregiver" and fears "that because he's seen that his older brother received most of the physical abuse, . . . that the Court is going to place [Connor] with his parents and leave his brother with his grandmother." Mr. Rommal observed that Cameron and Connor share a "very deep bond" but have grown increasingly "distant" from Respondent-mother, evincing their lack of trust for her.
The hearing transcript incorrectly states the therapist's surname as "Wombel" and "Womble." Although DSS identifies the therapist as "Mike Rommel" in its written reports, the record confirms his surname to be "Rommal."
Mr. Rommal advised the court that Cameron and Connor's trauma symptoms would "first . . . need to be stabilized" before they could begin family therapy with Respondents. He forecast the stabilization of their symptoms as a "long . . . process" made longer if the children continued to believe "that they are going to be sent back to their parents . . . ." Mr. Rommal opined that "the longer this Court process goes on with the possibility of going back to the parents hanging over the boys['] head[s,] the more damage or detrimental it is to their feelings of security and safety[.]"If Cameron and Connor were instead assured of a permanent home with their grandmother, Mr. Rommal believed that "they would work through . . . the rest of the trauma model fairly quickly. Or at least as quick as other children." Mr. Rommal also believed that Respondent-mother would need to have complied with her court-ordered treatment and "completed everything that DSS required" before beginning family therapy with the children.
Although Respondents continued to live together at the time of the hearing, Mr. Rommal was also asked about the prospect of returning them to Respondent-father if the parents separated. Mr. Rommal expressed concerns that Respondent-father would not maintain the "boundaries" necessary to protect Cameron and Connor:
. . . I was imagining they meant the mother would still have supervised visits and . . . the boys have reported that . . . they've witnessed adults in sexual acts, they've witnessed adults doing drugs, they reported one time . . . their mom had a gun and their dad had a knife. They've witnessed a lot of domestic violence, so, . . . I would have concerns that . . . those boundaries would be kept. Or if - if the dad could protect the boys from the physical abuse.Based on our review of the evidence, we find no merit to Respondent-mother's claim of error under N.C. Gen. Stat. § 7B-906.1(d)(3).
Respondent-mother next claims the trial court erred by appointing a guardian for Cameron and Connor without making findings that "address [Respondent-mother's] fitness as a parent or whether she had acted inconsistently with her constitutionally protected status." It is true that the Constitution's Due Process Clause protects a "parent's paramount constitutional right to custody and control of his or her children[,]" and that "the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody or where the parent's conduct is inconsistent with his or her constitutionally protected status[.]" Adams v. Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001) (internal citation omitted). In the case sub judice, however, neither Respondent-mother nor Respondent-father raised this constitutional issue before the trial court. We have held that a parent's right to findings regarding her constitutionally protected status is waived if the parent does not raise the issue before the trial court. See In re B.G., 197 N.C. App. 570, 573, 677 S.E.2d 549, 552 (2009) (reviewing father's claim that the trial court erred in awarding custody of his child to non-parent relatives without finding that he had acted inconsistently with his constitutionally protected status, but only after remanding to the trial court to verify that father " 'ma[d]e his constitutional argument at trial' " (quoting In re B.G., 191 N.C. App. 399, 663 S.E.2d 12, 2008 WL 2736511, *4, 2008 N.C. App. LEXIS 1357, *10 (2008) (unpublished))); see also In re T.P., 217 N.C. App. 181, 186, 718 S.E.2d 716, 719 (2011) (holding that mother "waived review of this issue on appeal" based on the doctrine that " '[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal' " (quoting State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)). Therefore, we hold that Respondent-mother has failed to preserve this issue for appeal.
Respondent-mother asserts the trial court awarded guardianship of Cameron and Connor to their paternal grandmother without properly verifying that she "understands the legal significance of the appointment and will have adequate resources to care appropriately for the juvenile[s]" as required by N.C. Gen. Stat. §§ 7B-600(c), -906.1(j) (2015). "We have held that the trial court need not 'make any specific findings in order to make the verification' under these statutory provisions. But the record must contain competent evidence of the guardians' financial resources and their awareness of their legal obligations." In re J.H., ___ N.C. App. ___, ___, 780 S.E.2d 228, 240 (2015) (quoting In re J.E., 182 N.C. App. 612, 616-17, 643 S.E.2d 70, 73 (2007)).
At the conclusion of the hearing, the trial court engaged in a colloquy with the paternal grandmother to confirm her understanding and willingness to assume the responsibilities of guardianship for Cameron and Connor. Based on their exchange, the court explicitly found "that she fully understands the nature and duties of being a guardian[ and] the responsibilities of same . . . ." These steps constitute sufficient verification under N.C. Gen. Stat. §§ 7B-600(c) and 7B-906.1(j). See In re P.A., ___ N.C. App. ___, ___, 772 S.E.2d 240, 245 (2015) (deeming "[t]he trial court's finding that [father's girlfriend] 'is aware of the legal significance of her appointment as legal guardian' " to be "supported by the evidence" based on [father's girlfriend's] unsworn, affirmative response when asked whether she " 'understand[s] the nature and legal significance of having that label' ").
The trial court also properly verified that the paternal grandmother "will have adequate resources to care appropriately for the juvenile[s]" within the contemplation of N.C. Gen. Stat. §§ 7B-600(c) and 7B-906.1(j). After affirming her understanding of the responsibilities of guardianship, the paternal grandmother told the court that she was "financially able to provide for [Cameron and Connor's] needs[.]" The court entered a written finding that the grandmother "is financially able to be the guardian of the juveniles."
Respondent-mother cites our decision in In re P.A. for the principle that a would-be guardian's self-assessment of her finances will not alone support a verification under N.C. Gen. Stat. § 906.1(j). See In re P.A., ___ N.C. App. at ___, 772 S.E.2d at 248 ("[The father's girlfriend's] unsworn affirmative answer to the trial court's inquiry as to whether she had 'the financial and emotional ability to support this child and provide for its needs' alone is not sufficient evidence, as this is [the father's girlfriend's] own opinion of her abilities."). In the case sub judice, however, additional competent evidence supports the court's finding. In its report dated 16 July 2015, DSS advised the court that the paternal grandmother has been employed with the Buncombe County school system for twenty-seven years, and that her live-in paramour was currently employed and had a stable employment history. DSS further reported that the grandmother had recently taken Cameron and Connor on a week-long vacation to the beach. The grandmother's exemplary performance as a kinship placement for twenty-four of the preceding thirty-three months is additional evidence tending to support the court's verification of her resources. Accordingly, Respondent-mother's argument is overruled.
Finally, Respondent-mother claims the trial court erred by entering an impermissibly "vague visitation order." We disagree. The applicable statute requires only that the visitation order "specify the minimum frequency and length of the visits and whether the visits shall be supervised." N.C. Gen. Stat. § 7B-905.1(c) (2015). The permanency planning order satisfies this requirement, specifying that Respondents shall have "one hour per week" of visitation with the children, "with [DSS] supervising the visitation." See In re N.B., ___ N.C. App. at ___, 771 S.E.2d at 570.
Respondent-mother asserts that it is "contradictory" for the court to conclude in its order that DSS's involvement with the case "should be terminated" while decreeing that DSS shall schedule and supervise her visitation. We believe the court's intentions are plainly discernible from the following decretal provisions:
2. [Respondents'] visitation shall be on a schedule and under circumstances set by [DSS], with [DSS] supervising the visitation one hour per week.(Emphasis added.) The court ceased DSS's involvement in the case except with regard to arranging and supervising Respondents' visitation. It also scheduled a review hearing to "make certain that appropriate visitation is occurring with the juveniles and the respondent parents." The order thus fully protects Respondent-mother's right to visitation.
3. The Department shall have no other responsibilities with regard to the juveniles.
AFFIRMED.
Judges CALABRIA and DILLON concur.
Report per Rule 30(e).