Opinion
No. COA00-391
Filed 17 April 2001
1. Termination of Parental Rights — Permanency Planning order — child placed outside of home for 19 months
A Permanency Planning order continuing custody of a child with the Caldwell County Department of Social Services was reversed and remanded where the child had been in the custody of DSS and in placement outside the home for 19 months and the court did not direct DSS to initiate termination of parental rights proceedings or make findings as permitted by N.C.G.S. § 7B-907(d)( 1-3).
2. Termination of Parental Rights — efforts to reunite parent and child — findings
The trial court had no obligation to further attempt to reunite a child in DSS custody with his parent and was obligated to locate permanent placement outside the parent's home where the court found that DSS had made numerous efforts to prevent or eliminate the need for placement outside the home.
Judge TYSON concurring in part and dissenting in part.
Appeal by respondent mother from order filed 10 January 2000 by Judge Jonathan L. Jones in Caldwell County District Court. Heard in the Court of Appeals 30 January 2001.
Elizabeth M. Spillman for petitioner-appellee.
Austen D. Jud for respondent-appellant.
No brief filed by attorney advocate.
Davida Elaine Dula (Respondent) appeals a "Permanency Planning Juvenile Review" order filed 10 January 2000 continuing custody of Respondent's child with the Caldwell County Department of Social Services (DSS).
The child was originally removed from Respondent's custody by DSS on 1 May 1998, after an investigation by DSS of a report of alleged child abuse. A non-secure custody order was filed by the trial court on 21 May 1998 placing custody with DSS and that order was continued in effect until the trial on the merits of the alleged abuse. On 23 October 1998, the child was adjudicated by the trial court to be an abused child within the meaning of section 7A-517(1). On that same day, the trial court entered a "Juvenile Disposition Order" continuing custody of the child with DSS and found that "reasonable efforts have been made by [DSS] to prevent or eliminate the need for removal of the child from [Respondent], but removal was necessary to protect the safety and health of the child." The matter was reviewed again on 18 March 1999 and custody remained with DSS. On 12 May 1999, the trial court entered a "Permanency Planning" order directing placement of the child to continue with DSS and indicated the "permanent goal in this case shall be one of reunification [of the child] with the mother." The trial court found that DSS had "exercised reasonable and diligent efforts to prevent the need for removal."
Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now § 7B-101(1) (1999).
On 10 January 2000, the trial court filed its second "Permanency Planning Juvenile Review" order in response to a hearing held on 1 December 1999. In this order, the trial court found in pertinent part that "[t]here are no relatives of the [child] who are willing and able to provide proper care and supervision of the [child] in a safe home," DSS has "made reasonable efforts to prevent or eliminate the need for placement of the juvenile," and that a return of the child to Respondent "would be an extremely dangerous action." The trial court then ordered custody of the child to remain with DSS, "reunification efforts . . . [to] cease," and a plan of adoption for the child to "be pursued" by DSS.
The issues are whether: (I) the 10 January 2000 Permanency Planning order must be reversed because the trial court did not comply with the mandates of N.C. Gen. Stat. § 7B-907(d); and (II) the department of social services is required to continue reasonable efforts to reunite the parent and child after the child has been in a placement outside the home for 15 of the 22 months preceding a section 7B-907 hearing.
I
A trial court is required to conduct a permanency planning hearing in every case where custody of a child has been removed from a parent. N.C.G.S. § 7B-907(a) (1999). This hearing must be conducted "within 12 months after the date of the initial order removing custody." Id. The purpose of the hearing is to "develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." Id. (emphasis added). If the juvenile has been in the custody of a county department of social services and in a placement outside the home for "15 of the most recent 22 months" preceding the section 7B-907 hearing, the trial court is required, unless certain findings are made, to "order the director of the department of social services to initiate a proceeding to terminate the parental rights of the parent." N.C.G.S. § 7B-907(d) (1999).
This statute applies to all abuse, neglect, and dependency review hearings commenced on or after 1 January 1999 and, thus, applies to this case.
Findings which will relieve the trial court of its section 7B-907(d) obligation are: "The permanent plan for the juvenile is guardianship or custody with a relative or some other suitable person"; "the filing of a petition for termination of parental rights is not in the best interests of the child"; or "[t]he department of social services has not provided the juvenile's family with such services as the department deems necessary, when reasonable efforts are still required to enable the juvenile's return to a safe home." N.C.G.S. § 7B-907(d) ( 1-3) (1999).
In this case, at the time of the 1 December 1999 permanency planning hearing, the child had been in the custody of DSS and in placement outside the home for 19 months (1 May 1998 through 1 December 1999) of the most recent 22 months. The trial court, therefore, was required to either direct DSS to initiate termination of parental rights proceedings against Respondent or make findings as permitted by section 7B-907(d) ( 1-3). The trial court did neither. Accordingly, the 10 January 2000 order must be reversed and remanded for entry of an order consistent with the mandate of section 7B-907(d).
The order of the trial court directing DSS to pursue a plan of adoption is not sufficient compliance with section 7B-907(d) .
II Respondent argues the 10 January 2000 order must be reversed because the trial court ordered all parent-child reunification efforts cease. This argument must be overruled.
Any order placing or continuing the placement of a child in the custody of the department of social services must include findings that the department of social services "has made reasonable efforts to prevent or eliminate the need for placement of the juvenile." N.C.G.S. § 7B-507(a) (2) (1999). The department of social services can be relieved of this obligation if the trial court enters certain findings of fact consistent with section 7B-507(b). N.C.G.S. § 7B-507 (1999).
The department of social services can also be relieved of the obligation of making reasonable efforts if a child has been in placement outside the home for the period of time and under the conditions referenced in section 7B-907(d). If the department of social services has made unsuccessful reasonable efforts during the 15 months the child has been in placement outside the home, pursuant to section 7B-907(b), the efforts of the department of social services and the courts must be redirected to developing a permanent placement for that child outside the home, not parent-child reunification. Indeed, reasonable efforts, by definition, "means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile," when a court "determines that the juvenile is not to be returned home." N.C.G.S. § 7B-101(18) (1999).
In this case, the trial court made numerous findings in its orders entered prior to 10 January 2000 and in the 10 January 2000 order that DSS had made "reasonable efforts to prevent or eliminate the need for placement of the juvenile" outside the home. Respondent does not assign error to those findings. Thus, the trial court, at the permanency planning hearing on 1 December 1999, had no obligation to further attempt to reunify the parent and child and, indeed, had the obligation to locate permanent placement for the child outside of Respondent's home.
Respondent raises an additional assignment of error which we need not address in light of our resolution of the issues presented. We note, however, there is merit to Respondent's argument the trial court erred in permitting Tamara Hayman to testify with regard to statements made to her by Respondent's aunt, who did not testify, concerning Respondent's treatment of the child. This testimony constituted inadmissible hearsay, see N.C.G.S. § 8C-1, Rule 802 (1999), and on remand should not be considered by the trial court.
Reversed and remanded.
Judge JOHN concurs.
Judge TYSON concurs in part and dissents in part with separate opinion.