The majority's opinion holds that: (1) DSS presented clear, cogent, and convincing evidence to support the trial court's findings of fact and conclusions of law; (2) the trial court did not err by adjudicating N.G. to be a neglected juvenile; and (3) the trial court did not abuse its discretion in finding reunification efforts to be futile and that it was in N.G.'s best interests to cease reunification efforts and visitation with respondents. I disagree and respectfully dissent.
I. Adjudicatory Hearing
A. Standard of Review
The trial court's and our standard of review is well established.
The first stage [of juvenile abuse, neglect, and dependency actions] is the adjudicatory hearing. If DSS presents clear and convincing evidence of the allegations in the petition, the trial court will adjudicate the child as an abused, neglected, or dependent juvenile. If the allegations in the petition are not proven, the trial court will dismiss the petition with prejudice and, if the juvenile is in DSS custody, returns the juvenile to the parents.
In re A.K., 360 N.C. 449, 454-55, 628 S.E.2d 753, 757 (2006) (internal citations omitted).
During the adjudicatory phase, the court takes evidence, makes findings of fact, and determines the existence or nonexistence of grounds for termination. N.C. Gen.Stat. § 7B-1109(e) (2005). The burden of proof rests upon DSS in this phase, and the court's findings must be based on clear, cogent, and convincing evidence. N.C. Gen.Stat. § 7B-1109(f) (2005).
The standard of review on appeal is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether its conclusions of law are supported by its findings of fact. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001).
*53"This intermediate standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). "The trial court's `conclusions of law are reviewable de novo on appeal.'" In re D.M.M., 179 N.C.App. 383, ___, 633 S.E.2d 715, 716 (2006) (quoting In re D.H., 177 N.C.App. 700, 703, 629 S.E.2d 920, 922 (2006)).
B. Analysis
Adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence. In re A.K., 360 N.C. at 454-55, 628 S.E.2d at 757.
The trial court's adjudicatory finding of fact numbered 5 states:
[N.G.] has lived in an environment injurious to her welfare when she was allowed to live in a home where another child [L.G.] had been subjected to abuse and neglect by an adult who regularly lives in that home without that adult having received adequate treatment of the condition which led to the abusive acts upon the older sibling.
(Emphasis supplied).
If DSS makes no showing that neglect has continued at the time of the hearing, evidence of changed circumstances must be considered "in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Here, DSS made no showing of any neglect of N.G. prior to or at the time of the hearing and respondents have proved they made reasonable efforts and received "adequate treatment" to alleviate the conditions that led to N.G.'s removal from their home. Id.
N.G. was healthy and uninjured when she was removed from respondents' home and placed into DSS's care at two months of age. All allegations of neglect were derived and solely based upon another child having been previously removed from respondents' home.
Respondents completed parenting, domestic violence, and anger management classes after L.G. was removed from the respondents' home. Respondents moved to New Jersey in September 2005 and have been commuting to North Carolina for their weekly visits with N.G. since that time. Respondents have not missed any scheduled visits. Adjudicatory finding of fact numbered 5 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary finding.
The trial court's adjudicatory finding of fact numbered 27 states, "[DSS] was unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile."
No family services case plan was established for N.G. The case plan cited by the trial court in its adjudicatory order pertained to J.G., respondents' second child. This case plan was established prior to DSS obtaining custody of N.G. The record shows DSS made no attempt to implement or restate this case plan for N.G.
The case plan for J.G. states that "[respondents] shall participate in Pride program or other comparable program[s] in Cumberland Co. or other area program upon consultation with DSS [and Guardian ad Litem]." (Emphasis supplied). DSS claimed that all other programs were not comparable because, inter alia, those programs did not require random drug testing. No allegations were made and no evidence was shown of any drug abuse by either of respondents. Respondents were not required by the case plan or order to submit to random drug testing. Respondents were unable to participate in the Family PRIDE program due to scheduling conflicts of that program with respondent-father's work schedule.
DSS refused to respond to suggestions and requests to review multiple alternative agencies and providers whose programs would allow respondents to maintain employment. Undisputed evidence shows respondents submitted two written requests for DSS to review listed programs as "comparable" substitutes for the Family PRIDE Program. The first request, dated 10 November 2005, listed *54fourteen agencies and providers conducting parenting and anger management classes. The second request, dated 7 December 2005, listed eleven additional possible programs. No evidence in the record shows DSS ever reviewed or responded to any of respondents' requests.
Respondents attended and successfully completed parenting, domestic violence, and anger management classes as required by J.G.'s case plan with Multicultural Community Development Services, a parenting and family development center. While DSS never deemed Multicultural Community Development Services to be a "comparable" provider, the record shows DSS never made any attempt to advise or help respondents find an alternative program that did not conflict with respondent-father's employment; and consequently, respondents' ability to maintain housing and basis of support for their family. Adjudicatory finding of fact numbered 27 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary result and admonition to DSS to consult, respond, and cooperate with respondents on alternative treatment programs.
Reviewed de novo, the trial court's adjudicatory conclusions of law numbered 2 and 3 state:
2. [N.G.] is a neglected as defined by N.C. Gen.Stat. 7B-101(15) because the juvenile has been allowed to live in an environment injurious to the juvenile's welfare.
3. [DSS] was unable to prevent placement of [N.G.] into out of home care, and the filing of the petition was necessary to protect [N.G.] and the placement of [N.G.] in care could not be prevented.
Since adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence, these findings cannot support the trial court's conclusions of law. Under de novo review, the trial court's conclusions of law are not supported by the findings of fact based upon clear, cogent, and convincing evidence and are error. The trial court's unsupported conclusions and adjudication of N.G. to be a neglected juvenile should be reversed.
II. Dispositional Hearing
Because the trial court's adjudicatory findings of fact do not support its conclusions of law, the trial court's dispositional order must also be reversed. Presuming, as the majority's opinion holds, that the trial court's conclusions of law are supported by the findings of fact and its conclusions and adjudication of N.G. to be a neglected juvenile should be affirmed, the trial court also erred when it ordered further reunification efforts would be futile and ceased respondents' visitation.
We have recognized the constitutional protection afforded to family relationships. See In re Webb, 70 N.C.App. 345, 350, 320 S.E.2d 306, 309 (1984) ("[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." quoting Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 52 L.Ed.2d 531, 540 (1977)). The purposes and policies of the Juvenile Code recited under N.C.G.S. § 7B-100 are applicable to permanency planning hearings.
The trial court's findings and conclusions were not supported by the evidence, did not consider changed conditions, and did not recognize that the purpose of the Juvenile Code is "return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents." See N.C. Gen.Stat. § 7B-100(4).
In re Eckard, 148 N.C.App. 541, 547, 559 S.E.2d 233, 236-37 (emphasis supplied), disc. rev. denied, 356 N.C. 163, 568 S.E.2d 192 (2002). Respondents informed DSS of their alternate compliance with J.G.'s case plan and provided the trial court with undisputed evidence of the treatment they received and completed. Respondents made diligent efforts to remedy the causes that led to N.G.'s removal. Respondents cannot be limited by DSS to a single source service provider whose program schedule conflicts with and jeopardizes respondent-father's employment and means of support. J.G.'s case plan expressly allows for "other comparable program[s]" and "other area program[s]." DSS never responded to two distinct written requests *55to review or recommend alternative plans or service providers. The trial court erred when it ordered that reunification efforts would be futile and that visitation cease.
III. Conclusion
N.G. was healthy and unharmed when DSS removed her from respondents' home. No case plan was established or restated for N.G. No clear, cogent, and convincing evidence supports the trial court's adjudicatory findings of fact that "[N.G.] lived in an environment injurious to her welfare. . . ." and the "placement of [N.G.] in care was necessary for [her] protection and safety. . . ." No evidence exists and no finding of fact was made that any alleged neglect continued at the time of the hearing.
Under de novo review, the trial court's findings of fact are not supported by clear, cogent, and convincing evidence, and these findings do not support the conclusions of law that "[N.G.] is a neglected as defined by N.C. Gen.Stat. 7B-101(15). . . ." and "the filing of the petition was necessary to protect [N.G.]. . . ." The trial court's adjudicatory order should be reversed.
Because the trial court erred in entering its adjudicatory order, it also erred in concluding at disposition that "[t]he development of a plan of reunification of the child with the parents would be futile" and "[f]urther parental visitation should be ceased." Respondents drove from New Jersey to visit N.G. and never missed a weekly visitation. The trial court's dispositional order should be reversed.
N.C. Gen.Stat. § 7B-100(4) (2005) requires DSS to assist respondents and presumes reunification of N.G. with her parents will occur. DSS failed to respond to respondents' repeated requests to review alternative programs with schedules that would not jeopardize respondent-father's employment and failed to overcome the statutory presumption of reunification. Respondents made substantial progress toward alleviating the conditions that led to N.G.'s removal from respondents' home. No evidence was presented to support the conclusion that further efforts to reunify N.G. with her parents would be futile. I vote to reverse the trial court's order and respectfully dissent.