Opinion
No. 08-950.
January 20, 2009.
Appeal by Respondent from order entered 21 May 2008 by Judge Hugh B. Lewis in District Court, Mecklenburg County. Heard in the Court of Appeals 30 December 2008.
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for Petitioner-Appellee Mecklenburg County Department of Social Services. Robert W. Ewing for Respondent-Appellant Penry Riemann PLLC, by Neil A. Riemann, for Guardian ad Litem.
Mecklenburg County Nos. 04JI049-50.
L.E. (Respondent) appeals from the review hearing order entered 21 May 2008 granting guardianship of K.H.U.E. and N.I.E. (the children) to N.I.E.'s paternal aunt and uncle (Mr. and Mrs. D). We affirm.
Respondent is the mother of the minor children. The Mecklenburg County Division of Youth and Family Services (YFS) obtained nonsecure custody of the children and filed a juvenile petition on 30 September 2004 alleging that the children were neglected and dependent juveniles. Specifically, YFS alleged that:
a. This family has been involved with Gaston County Department of Social Services and Mecklenburg County Department of Social Services since 2000. The primary issues have been [Respondent's] substance abuse use, [Respondent's] failure to address the medical and mental health needs of the children, [Respondent's] failure to address her mental health needs.
. . .
c. YFS received another referral in March 2004. The report alleged that [K.H.U.E.] came to school with marijuana and a $100.00 bill in his pocket. [Respondent] admitted that the marijuana and the money belonged to her. This case was also substantiated and sent to Family Intervention in May 2004.
d. [Respondent] is not complying with the Family Intervention case plan. [Respondent] refuses to meet with YFS to address a plan to meet the needs of the children.
e. YFS and the Charlotte-Mecklenburg School System have requested that [Respondent] obtain a Behavioral Health Center evaluation for [K.H.U.E.]. [Respondent] has not obtained an assessment. [Respondent] does not believe that [K.H.U.E.] needs an assessment.
f. Substance abuse continues to be an issue for [Respondent]. She continues to test positive for illegal substances. [Respondent] completed a substance abuse assessment. Adult Intensive Outpatient Treatment was recommended. She refuses to enter into substance abuse treatment. [Respondent] was arrested in August 2004 in Gaston County for possession of cocaine, [sale] of cocaine, and delivery of cocaine. [Respondent] was convicted of the charges. [Respondent] does not believe that she has a substance abuse problem.
. . .
k. The children are dependent in that they are in need of assistance or placement because [they] do not have a parent, guardian or custodian responsible for [their] care or supervision or whose parent, guardian or custodian is unable to provide for the care or supervision and lacks and [sic] an appropriate alternative child care arrangement.
l. The children are neglected in that they do not receive proper care, supervision, or discipline from [their] parents, live in an environment injurious to their welfare, and do not receive necessary remedial care.
The children were adjudicated neglected and dependent juveniles on 22 December 2004. Respondent was ordered to comply with the terms of her case plan, enter the Mecklenburg County FIRST program, and complete a parenting capacity evaluation.
A review hearing was held on 2 March 2005. The trial court found that Respondent was not complying with her case plan and had not visited with the children on a regular basis. The trial court also found that the FIRST program had issued an order for Respondent to appear at a hearing scheduled for 16 March 2005 and show cause why she should not be held in contempt of court for failing to comply with the recommendations made during a drug screening on 16 December 2004. By the next review hearing on 8 June 2005, Respondent had been jailed for contempt of court. Subsequently, the trial court changed the permanent plan to adoption.
Over the next couple of years, a series of review hearings occurred while the children remained in the custody of YFS. At the permanency planning hearing on 6 December 2007, the trial court found that Respondent was not attending her individual therapy, group therapy, parenting education, or recovery skills programs. The trial court found that Respondent had failed to return to these programs after 11 September 2007. As a result of Respondent's lack of progress with her case plan, the trial court ordered a permanent plan of adoption for the children and ordered Petitioner to file a termination of parental rights action.
Based upon Respondent's failure to correct the conditions which led to the removal of the children from the home, and Respondent's failure to pay child support, Petitioner filed a petition to terminate Respondent's parental rights on 6 February 2008. However, Petitioner filed a motion to change the permanent plan from termination of parental rights/adoption to guardianship with Mr. and Mrs. D. on 16 April 2008.
A review hearing was held on 8 May 2008. The trial court concluded that it was in the best interests of the children to be placed in the legal guardianship of Mr. and Mrs. D. Respondent was given supervised visitation one weekend a month. Respondent appeals from the order entered.
I.
Respondent first contends that the trial court failed to make specific findings concerning the children and Respondent and therefore the trial court's order failed to comply with N.C. Gen. Stat. § 7B-906 and is insufficient to allow meaningful appellate review.
In the context of a review hearing,
[i]n each case the court shall consider the following criteria and make written findings regarding those that are relevant:
(1) Services which have been offered to reunite the family, or whether efforts to reunite the family clearly would be futile or inconsistent with the juvenile's safety and need for a safe, permanent home within a reasonable period of time.
(2) Where the juvenile's return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care.
(3) Goals of the foster care placement and the appropriateness of the foster care plan.
(4) A new foster care plan, if continuation of care is sought, that addresses the role the current foster parent will play in the planning for the juvenile.
(5) Reports on the placements the juvenile has had and any services offered to the juvenile and the parent, guardian, custodian, or caretaker.
(6) An appropriate visitation plan.
(7) 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.
(8) When and if termination of parental rights should be considered.
(9) Any other criteria the court deems necessary.
N.C. Gen. Stat. § 7B-906(c)(2007).
Respondent argues the trial court's findings were merely "boilerplate" findings and were insufficient to support the trial court's conclusion of law that it was in the children's best interests for guardianship to be with paternal relatives in California. We disagree with this contention as the trial court made several case-specific findings in addition to "boilerplate" findings. Specifically, the trial court found that: (1) great weight should be given to the fact that the United States Marine Corp. granted permission for the children to reside in military housing with Mr. and Mrs. D.; (2) the present foster parents did not wish to adopt the children; (3) Leroy Lewis, with Area Mental Health, approved of the children's placement with Mr. and Mrs. D.; (4) this matter has progressed slowly since 30 September 2004; (5) finding adoptive parents for children of this age may prove difficult; and (6) the guardians understand the significance and inherent responsibilities of being appointed guardians. (R p. 425).
Additionally, the trial court found that efforts to reunite Respondent and the children would be futile. The trial court also found that it would be contrary to the children's best interests for them to return home. Furthermore, the trial court made findings regarding the potential for adoption in this case and found guardianship would secure permanence without further delay. Moreover, the trial court's order provided for supervised visitation one weekend per month, with Respondent being responsible for providing her own transportation. [R. pp. 420-425].
Respondent also argues the trial court failed to address the impact that relocating to California would have on the children or the likelihood that a realistic visitation schedule could be arranged for herself with the children. Respondent contends this case is similar to Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576, (2000), where this Court remanded a custody order when the trial court's findings did not specifically address the effect of relocation on the child himself. In Evans, the trial court found that the proposed relocation would adversely affect the relationship of the child with his father but failed to discuss the impact of the proposed move on the child. Id. at 142, 530 S.E.2d at 580. Our Court's decision in Evans was also based on the fact that the trial court did not explicitly address the question of the best interest of the child. Id. at 141, 530 S.E.2d at 580.
The present case is distinguishable from Evans. Although the trial court in the present case did not specifically discuss the impact of the relocation on the children, the trial court did make specific findings as to why awarding guardianship to Mr. and Mrs. D. in California was in the children's best interests. The trial court found that returning the children to Respondent's home would not be in their best interests. (R p. 421). The trial court also noted that the children had been in foster care since 2004 and a guardianship would secure permanence for the children without further delay. The trial court further found that because of the children's ages, finding adoptive parents may be difficult. Thus, although the trial court did not specifically discuss the impact of the relocation on the children, the trial court did make sufficient findings as to why awarding guardianship to Mr. and Mrs. D. was in the children's best interests.
Lastly, contrary to Respondent's contentions, the trial court did delineate a realistic visitation schedule allowing Respondent supervised visitation the second weekend of each month. We conclude that the trial court made the findings required by statute. This argument is without merit.
II.
Respondent next contends that the trial court's findings of fact are insufficient to support the conclusion of law that guardianship with Mr. and Mrs. D. was in the children's best interests.
The trial court's findings of fact are binding on appeal if supported by competent evidence. See In re H.W. 163 N.C. App. 438, 443, 594 S.E.2d 211, 213, disc. review denied 358 N.C. 543, 599 S.E.2d 46, disc. review denied 358 N.C. 543, 603 S.E.2d 877 (2004). Respondent has not assigned error to any specific finding of fact and thus the findings are deemed supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). "Our review of [the] trial court's conclusions of law is limited to whether the conclusions are supported by the findings of fact." In re M.J.G., 168 N.C. App. 638, 643, 608 S.E.2d 813, 816 (2005).
Pursuant to N.C. Gen. Stat. § 7B-906, after making findings of fact the trial court
may appoint a guardian of the person for the juvenile pursuant to G.S. 7B-600 or may make any disposition authorized by G.S. 7B-903, including the authority to place the juvenile 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(d)(2007). "In any case . . . when the court finds it would be in the best interests of the juvenile, the court may appoint a guardian of the person for the juvenile." N.C. Gen. Stat. § 7B-600(a)(2007). "[B]est interest determinations are conclusions of law because they require the exercise of judgment." In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). The decision of a trial court regarding best interest is within the trial court's discretion and will not be overturned absent an abuse of discretion. See In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
In the present case, the trial court made the following relevant findings of fact:
2. The parents have not provided any verification to YFS which shows that they have addressed the issues which necessitated placement.
. . .
11. [Mr. and Mrs. D.] requested placement in 2004 and have three approved home studies. The [United States Marine Corps] has approved placement of the [children] with [Mr. and Mrs. D.] . . . YFS and the GAL requested the children be placed in guardianship with [Mr. and Mrs. D.]
12. [Respondent] . . . objected to changing the plan from adoption to guardianship and objected to the placement of the children with [Mr. and Mrs. D.] The proposed guardians have indicated via letter, which is [incorporated by reference] that they understand their responsibilities as guardians and willingly accept guardianship.
. . .
14. The [c]ourt gives great weight to the fact that the United States Marine Corp[s] has given permission for the children to reside in military housing with [Mr. and Mrs. D.]
15. The present foster parents, . . . do not wish to adopt the[] children and will not accept the responsibilities of guardianship.
16. Leroy Lewis, with Area Mental Health, approves of the children's placement with [Mr. and Mrs. D.]
17. The children are not receptive to this move.
18. The initial petition in this matter was filed September 30, 2004 and we are still trying to secure a permanent placement. The matter keeps dragging on. The [c]ourt ordered YFS to move forward with termination of parental rights to achieve permanence for the[] children.
19. Based on the age of the[] children, finding adoptive parents may prove difficult.
20. The guardians understand the legal significance of being appointed guardians and have adequate resources to care appropriately for the children.
[R. pp. 420-421; 425].
Based on its findings, the trial court concluded:
9. It is in the [children's] best interest that guardianship be with [Mr. and Mrs. D.]
10. Termination is not in the best interest of the children because the children have been in care since 2004 and guardianship shall secure permanence for the[] children without further delay.
We conclude that the trial court's conclusions of law are supported by its findings of fact.
In this case, as of the hearing on 8 May 2008, the children had been in the custody of YFS for over forty-two months. Visitation between Respondent and the children was suspended on 15 March 2006 due to Respondent's lack of progress. Respondent failed to produce the case plan she had told the trial court she was working on with Gaston County DSS. Additionally, Respondent failed to return to therapeutic services after 11 September 2007. Therefore, the trial court did not abuse its discretion in determining that the best interests of the children were served by placing guardianship with Mr. and Mrs. D. This argument is without merit.
III.
Respondent next argues that the trial court failed to make any written findings regarding the appropriateness of the visitation plan as required by N.C. Gen. Stat. § 7B-906(c)(6). Respondent also contends that the trial court did not adopt an appropriate visitation plan.
At a review hearing, as outlined above, the trial court shall consider and make relevant findings regarding an appropriate visitation plan. N.C.G.S. § 7B-906(c)(6) (2007). "The trial court maintains the responsibility to ensure that an appropriate visitation plan is established within the dispositional order." In re E.C., 174 N.C. App. 517, 522, 621 S.E.2d 647, 651 (2005). "An appropriate visitation plan must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised." Id. at 523, 621 S.E.2d at 652.
In this case, the trial court's dispositional order did include an appropriate visitation plan. The trial court ordered that "[Respondent] shall have supervised visitation the second weekend of each month. She shall not have any additional visitation unless approved by this [c]ourt." The trial court furthered ordered that "[Respondent] shall provide [her] own transportation to visits." Moreover, we do not read N.C. Gen. Stat. § 7B-906(c)(6) to require written findings explaining the appropriateness of the visitation plan. This argument is without merit.
Affirmed.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).