An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-291
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF: Stokes County
A.A. Nos. 11 JA 27-28
L.A.
Appeal by respondent from orders entered 26 April 2013 and
15 October 2013 by Judge Angela Puckett in Stokes County
District Court. Heard in the Court of Appeals 30 June 2014.
Administrative Office of the Courts, by Appellate Counsel
Tawanda N. Foster, for guardian ad litem.
Mary McCullers Reece for respondent-appellant father.
ELMORE, Judge.
Respondent-father appeals from two orders. The first order
relieved the Stokes County Department of Social Services (“DSS”)
from further efforts toward reunification as to minor children
A.A. (“Adam”) and L.A. (“Lisa”).1 The second order awarded
guardianship of the minor children to their maternal aunt and
uncle, Mr. and Mrs. A. Respondent-father preserved his right to
1
We use pseudonyms to protect the children’s privacy.
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appeal the order ceasing reunification efforts and filed notice
of appeal from both orders. See N.C. Gen. Stat. §§ 7B-507(c),
7B-1001(a)(4), (5)b., (b) (2013).
I. Procedural History
At the time of his birth in May 2008, Adam tested positive
for opiates, cocaine, and amphetamines. Lisa also tested
positive for opiates and cocaine when she was born in April
2011. During its investigation of the family in May 2011, DSS
conducted a pill count of respondent-father’s Vicodin, Flexeril,
and Adderall prescriptions and found that “all medication [was]
short of the recommended dosage.” On 13 May 2011, respondent-
father refused to submit to a random drug screen requested by
DSS and exhibited symptoms of intoxication.
On 6 June 2011, DSS obtained non-secure custody of Adam and
Lisa and filed petitions2 alleging that they were neglected
juveniles as defined by N.C. Gen. Stat. § 7B-101(15) (2013).
The trial court entered adjudications of neglect on 8 November
2011. Respondent-mother stipulated that her substance abuse
prevented her from caring for the children. Respondent-father
was incarcerated for defrauding a drug screen while on probation
2
We note the petition filed in 11 JA 28 is not included in the
record on appeal.
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in September 2011. He was released from prison on 27 February
2012, and signed a case plan with DSS on 9 March 2012.
The trial court ceased reunification efforts as to
respondent-mother on 19 April 2012. Respondent-father worked on
his case plan by visiting with the children, obtaining stable
housing and employment, complying with random drug screens, and
attending substance abuse treatment and anger management
counseling with John Pulliam of Choose Life Addiction Recovery
Services. Following a review hearing on 20 December 2012, the
trial court authorized a trial placement of the children in
respondent-father’s home. In response to the guardian ad
litem’s report that respondent-father had allowed respondent-
mother to speak to Adam and Lisa by telephone, the court
expressly forbade any contact between the children and their
mother.
After a review hearing on 21 March 2013, the trial court
entered an order terminating the children’s trial placement and
relieving DSS of further efforts to reunify the children with
respondent-father. The trial court also held a permanency
planning hearing on 5 September 2013 and entered an order on 15
October 2013, changing Adam and Lisa’s permanent plan from
reunification with respondent-father to guardianship and
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awarding guardianship of the children to their maternal aunt and
uncle, Mr. and Mrs. A.
II. Ceasing Reunification Efforts
On appeal, respondent-father claims that the trial court
erred in ceasing reunification efforts under N.C. Gen. Stat. §
7B-507(b)(1) (2013). He contends that many of the trial court’s
findings of fact in support of its decision constitute mere
recitations of witness testimony or are unsupported by the
evidence. The remaining findings, respondent-father argues, are
insufficient to support the trial court’s conclusion that
further reunification “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).
“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) (citation omitted). Under N.C.
Gen. Stat. § 7B-507(b)(1) (2013), “[a] trial court may cease
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reunification efforts upon making a finding that further efforts
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. at 214, 644 S.E.2d at 594
(quotation omitted). Though characterized as a finding or
“‘ultimate finding[,]’ the determination that grounds exist to
cease reunification efforts under N.C.G.S. § 7B-507(b)(1) is in
the nature of a conclusion of law that must be supported by
adequate findings of fact.” In re E.G.M., __ N.C. App. __, __,
750 S.E.2d 857, 867 (2013) (quoting In re I.R.C., 214 N.C. App.
358, 363, 714 S.E.2d 495, 499 (2011); citing In re I.K., __ N.C.
App. __, __, 742 S.E.2d 588, 595 (2013)).
We conclude that the review order entered on 26 April 2013
lacks sufficient findings of fact to support the trial court’s
ultimate finding under N.C. Gen. Stat. § 7B-507(b)(1). “[A]
proper finding of facts requires a specific statement of the
facts on which the rights of the parties are to be determined,
and those findings must be sufficiently specific to enable an
appellate court to review the decision and test the correctness
of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d
653, 657 (1982). This Court has repeatedly emphasized that
“‘[r]ecitations of the testimony of each witness do not
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constitute findings of fact by the trial judge, because they do
not reflect a conscious choice between the conflicting versions
of the incident in question which emerged from all the evidence
presented.’” Moore v. Moore, 160 N.C. App. 569, 571-72, 587
S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505
n.1, 313 S.E.2d 193, 195 n.1 (1984)) (emphasis in original).
It appears that the trial court’s decision to cease
reunification efforts was based primarily on evidence that
respondent-father had abdicated his role as the children’s
caretaker and/or exposed the children to contact with
respondent-mother during the trial placement. Of particular
concern were the amount of time Lisa had spent in the care of
her paternal grandmother, rather than respondent-father, and the
whereabouts of both children on the night and morning of 13-14
March 2013. After hearing conflicting evidence on these issues,
however, the trial court failed to enter affirmative findings of
fact to resolve them.3 Instead, it summarized the conflicting
accounts of respondent-father, his brother, and his mother and
found generally that respondent-father’s “testimony, under oath,
was untruthful and not credible in any way.” While it is
3
The court announced in open court “that at least one of the
children was staying with her grandmother” but did not include
this finding in its written order.
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possible to construe this finding as an implicit adoption of the
testimony of respondent-father’s mother and brother, it is not
the role of this Court to infer necessary findings where none
appear. See State v. Brown, 314 N.C. 588, 596, 336 S.E.2d 388,
393 (1985) (“It is the duty of the finder of fact, not this
Court, to resolve disputed questions of fact.”); see also In re
A.S., 190 N.C. App. 679, 691, 661 S.E.2d 313, 321 (2008)
(remanding for more specific dispositional findings where the
trial court found that “the statements set forth in the Court
Report of [the] social worker . . . are true and the statements
set forth in the Court Report of guardian ad litem . . . are
true”), aff'd per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009).
We agree with respondent-father that the remaining findings
do not support the trial court’s determination that further
reunification efforts “would clearly be futile and inconsistent
with the juveniles’ health, safety, and need for a safe,
permanent home within a reasonable amount of time.” Finding 22
states that respondent-father “has not been taking care of the
children as court ordered in the trial placement.” However, the
order authorizing the trial placement contains no specific
directives regarding the children’s care other than (1)
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obtaining daycare approved by DSS;4 (2) providing bi-weekly and
Christmas visitation to Mr. and Mrs. A.; and (3) forbidding
contact “between the children and the mother.” The trial court
neither made findings that respondent-father violated these
provisions5 nor did it make any evidentiary findings that would
logically support a conclusion that respondent-father violated
the terms of the 18 February 2013 trial placement order.
Finding 23 states generally that respondent-father “‘did
his own thing,’ after trial placement, stopped complying with
his case plan, and in fact made no further effort on his case
plan, regressing on his case plan.” The only specific findings
that address respondent-father’s compliance with his case plan
are as follows:
19. [Respondent-father] noted that he’d
been ordered to continue his counseling [at]
“a court date before last, to continue his
anger management classes, but he had, as of
the last court date, a letter of completion
for his substance abuse treatment and anger
management.” He stopped going to the
sessions.
20. [Respondent-father] did not complete
his drug counseling, as he’s been ordered.
4
Both the trial court and DSS agreed to respondent-father’s
proposal to allow his mother to provide daycare for the children
from 20 December 2012 until 2 January 2013.
5
Respondent-father testified that his children attended MudPies
daycare at the time of the 21 March 2013 hearing.
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21. [Respondent-father] had maintained
weekly contact with DSS as ordered until 1-
19-13. [He] failed to contact DSS again
until 2-12-13. [He] did not provide DSS
with a copy of his work schedule as DSS
requested on 2-15-13 until 3-7-13.
As for Finding 20, the evidence showed that John Pulliam
certified by letter dated 24 November 2012 that respondent-
father had “successfully completed his individualized treatment
program with CHOOSE LIFE” and that “[a]nger management and
relapse prevention education and training have been provided.”
The trial court held a permanency planning hearing five days
later. In the resulting order entered 22 January 2013, the
trial court acknowledged Pulliam’s letter but ordered
respondent-father “to continue counseling with John Pulliam,
where he will also address his anger issues in the counseling
sessions.” However, the trial court held a review hearing on 20
December 2012 and authorized the children’s trial placement with
respondent-father in an order entered 18 February 2013. In this
order, the trial court found that respondent-father “is
successfully working his case plan” and made no reference to a
requirement that he continue counseling with Pulliam. The order
is likewise silent as to respondent-father’s need for further
“drug counseling” as stated in Finding 20.
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By the time of the 20 December 2012 review hearing,
respondent-father had ceased his counseling with Pulliam. Had
the trial court deemed additional counseling to be necessary, we
find it reasonable to assume that it would have noted the issue
in its 18 February 2013 order and directed respondent-father to
resume his counseling as a condition of the trial placement.
Under these circumstances, respondent-father’s failure to attend
counseling with Pulliam from 20 December 2012 until the next
review hearing on 21 March 2013 is insufficient to justify a
ceasing of reunification efforts under N.C. Gen. Stat. § 7B-
507(b).
Finding 21, which is uncontested, notes that respondent-
father missed two weekly contacts with DSS and delayed notifying
DSS of his work schedule. See generally Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (ruling that uncontested
findings are binding on appeal). However, we do not believe
that these omissions support the trial court’s assessment in
Finding 23 that respondent-father “stopped complying with his
case plan, and in fact made no further effort on his case plan”
after the trial placement was approved on 20 December 2012.
Rather, Finding 21 notes that respondent-father contacted DSS on
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12 February 2013 and provided his work schedule on 7 March 2013.6
“There is nothing impermissible about describing testimony,
so long as the court ultimately makes its own findings,
resolving any material disputes.” In re C.L.C., 171 N.C. App.
438, 446, 615 S.E.2d 704, 708 (2005), aff'd per curiam, 360 N.C.
475, 628 S.E.2d 760-61 (2006). “Where there is directly
conflicting evidence on key issues, it is especially crucial
that the trial court make its own determination as to what
pertinent facts are actually established by the evidence, rather
than merely reciting what the evidence may tend to show.” In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000)
(citations omitted). In the case sub judice, the trial court
failed to resolve the evidentiary disputes most salient to its
decision under N.C. Gen. Stat. § 7B-507(b)(1). Therefore, we
must remand for further findings on this issue.
6
The 15 October 2013 order that awards guardianship to Mr. and
Mrs. A. includes additional findings regarding respondent-
father’s non-compliance with his case plan after reunification
efforts ceased. However, we find no statutory authority to
consider these subsequent findings in our review of the 26 April
2013 order ceasing reunification efforts. But cf. In re L.M.T.,
367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013) (Because N.C.
Gen. Stat. § 7B-1001(a)(5)(a) (2013) directs the appellate court
to “review the order to cease reunification together with an
appeal of the termination of parental rights order, . . .
incomplete findings of fact in the cease reunification order may
be cured by findings of fact in the termination order.”)
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III. Guardianship
In light of our decision to vacate the order ceasing
reunification efforts, respondent-father contends that we must
also vacate the succeeding order that changed the children’s
permanent plan and awarded guardianship to Mr. and Mrs. A. We
agree. Because additional findings are needed to determine
whether DSS must continue its reasonable efforts to reunify the
children with respondent-father under N.C. Gen. Stat. § 7B-
507(b), we must also vacate the subsequent permanency planning
order entered 15 October 2013. In re I.K., __ N.C. App. at __
n.6, 742 S.E.2d at 596 n.6 (rejecting the “argument that we need
only look to whether the court properly concluded that
guardianship is in the child’s best interest without considering
the adequacy of the court’s findings under §§ 7B-507 and 7B-
907”).
IV. Conclusion
The 26 April 2013 order ceasing reunification efforts is
hereby vacated. We remand for the entry of additional findings
of fact on the need for DSS to make further reunification
efforts under N.C. Gen. Stat. § 7B-507. See id. at __, 742
S.E.2d at 596. “The [trial] court may receive additional
evidence on this issue, within its sound discretion.” In re
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E.G.M., __ N.C. App. __, __, 750 S.E.2d 857, 868 (2013)
(citation omitted). The permanency planning order entered 15
October 2013 is also vacated.
Vacated and remanded.
Chief Judge MARTIN and Judge HUNTER, Robert N., concur.
Report per Rule 30(e).