NO. COA13-433
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
IN THE MATTER OF:
Rowan County
Nos. 03 JA 275-78, 06 JA 250-51
T.H., T.H., A.S.,
J.S., M.W., A.W.
Appeal by respondent from adjudication order entered 3 May
2012 by Judge Charlie Brown and disposition order entered 9 January
2013 by Judge Lillian B. Jordan in Rowan County District Court.
Heard in the Court of Appeals 8 October 2013.
Cynthia Dry for petitioner-appellee Rowan County Department
of Social Services.
Jeffrey L. Miller for respondent-appellant mother.
Administrative Office of the Courts, by Associate Counsel
Deana K. Fleming, for guardian ad litem.
BRYANT, Judge.
Where respondent-mother fails to establish an immediate and
direct interest in four juveniles — Tracy, Todd, Mary, and Ann1 —
following the surrender of her parental rights as to them in a
1 Pseudonyms are used throughout this opinion to protect the
juveniles’ privacy and for ease of reading.
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prior proceeding, we affirm the trial court’s ruling that
respondent-mother may not intervene in the juveniles’
dispositional hearing as a matter of right. Where respondent-
mother does not come within any category of persons afforded a
right to appeal a juvenile matter arising from Subchapter I of
Chapter 7B, as such appeal relates to the four juveniles adopted
from respondent-mother, respondent-mother lacks standing to
appeal. Accordingly, we must dismiss respondent-mother’s appeal
as to those four juveniles. Because there was sufficient evidence
to support the trial court’s findings of fact and those findings
support the trial court’s conclusion that Ashley and John were
dependent, we affirm that determination. Where respondent-mother
was on notice that the trial court would enter a permanent plan
for her two children, respondent-mother participated in the
dispositional hearing to establish a permanent plan, and did not
object to the lack of notice, the trial court did not err in
establishing a permanent plan. Where the trial court’s
unchallenged findings of fact support its conclusion that
reunification efforts would be inconsistent with the juvenile’s
health, safety, and need for a permanent home, we affirm the trial
court’s conclusion that reunification efforts are not required at
this time. Where the trial court failed to establish an
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appropriate schedule for respondent-mother to visit her children,
we remand the matter to the trial court for entry of such a
schedule.
Respondent-mother Claire Wilson (“Claire”)2, the biological
mother of the juveniles, appeals from orders: (1) adjudicating the
juveniles dependent; (2) denying her motion to intervene; (3)
ordering a permanent plan of adoption for Tracy, Todd, Mary, and
Ann; and (4) ordering a permanent plan of custody or guardianship
for Ashley and John. After careful review, we affirm in part,
remand in part, and dismiss in part Claire Wilson’s appeal.
On 27 January 2012, the Rowan County Department of Social
Services (“DSS”) filed a petition alleging that Tracy, Todd,
Ashley, John, Mary, and Ann were dependent juveniles. DSS stated
that on 27 January 2012, Janice Lake (“Janice”), the maternal
grandmother of the juveniles, was murdered. Janice had adopted
Tracy, Todd, Mary, and Ann in 2009 and in 2004 had been granted
custody of Ashley and John. In its petition, DSS alleged that
there were no appropriate family members to care for the children
and subsequently, took custody of the juveniles by non-secure
2Pseudonyms are used to protect the identity of respondent-mother,
her adult relatives and caretakers of the children.
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custody order. On 2 February 2012, the trial court appointed the
juveniles a guardian ad litem.
An adjudicatory hearing was held on 29 March 2012. The trial
court adjudicated the children “dependent juveniles” and ordered
that legal custody, as well as authority over placement and
visitation, remain with DSS. Additionally, the trial court stated
the following:
It is in the best interests of the juveniles
for the temporary permanent plan of [John and
Ashley] to be custody or guardianship with a
relative or other court approved caretaker.
The temporary permanent plan for [Ann, Mary,
Todd, and Tracy] should be adoption.
On 2 October 2012, several of the juveniles’ relatives filed
a joint motion to intervene in the juvenile proceedings. The
relatives stated that they were willing and able to provide care
for the juveniles and that it was in the best interests of the
juveniles to be placed with family members. On 8 October 2012,
Mr. and Mrs. Alfred, who were the court approved placement
providers for all of the juveniles, also filed a motion to
intervene. Mr. and Mrs. Alfred argued that they should be
“permitted to intervene because it would be in the best interests
of all the children to have [Mr. and Mrs. Alfred] involved as
parties in their case, since [Mr. and Mrs. Alfred] [] have
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developed such strong bonds with the children and are providing
their daily care.”
On 10 October 2012, Claire filed a motion to intervene. The
motion related solely to Tracy, Todd, Mary, and Ann, the four
juveniles adopted by Janice. Claire noted that she was the
biological mother of the juveniles and legally their sister since
the children had been adopted by Claire’s mother. Claire denied
the material allegations made by Mr. and Mrs. Alfred in their
motion to intervene and requested that the juvenile petition be
terminated, the juveniles placed with her, or in the alternative,
members of her family, and that Mr. and Mrs. Alfred’s motion to
intervene be denied.
A dispositional hearing was conducted on 8, 9, and 26 November
2012. The trial court denied all motions to intervene. The court
found that no relative was able to provide proper care and
supervision for the juveniles and that placement with “any of the
identified relatives” was contrary to the best interests of the
juveniles. The trial court specifically found that it was contrary
to the best interests of the juveniles for them to return to
Clarie’s home. The trial court made findings regarding Todd’s
repeated attempts to harm himself and others, as well as his
auditory and visual hallucinations, and placed him in a residential
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psychiatric facility, with placement with Mr. and Mrs. Alfred if
possible once his treatment was complete. The remaining juveniles
were placed with Mr. and Mrs. Alfred. The court set the permanent
plan for Tracy, Todd, Mary and Ann as adoption and the permanent
plan for Ashley and John as custody or guardianship with Mr. and
Mrs. Alfred. Claire appeals.
_________________________________
On appeal, Claire raises the following issues: whether (I)
the trial court erred in denying her motion to intervene; (II)
there was sufficient grounds to support the conclusion the children
were dependent juveniles; (III) there were sufficient grounds to
cease reunification efforts; (IV) the trial court erred in
establishing a permanent plan for the juveniles; and (V) the
written order failed to establish a proper visitation plan.
I. Motion to Intervene
Claire first argues that the trial court erred by denying her
motion to intervene as a matter of right, pursuant to our Rules of
Civil Procedure, Rule 24(a)(2). We disagree.
“This Court reviews a trial court's decision granting or
denying a motion to intervene pursuant to N.C. Gen. Stat. § 1A–1,
Rule 24(a)(2), on a de novo basis.” Bailey & Assoc., Inc. v.
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Wilmington Bd. of Adjustment, 202 N.C. App. 177, 185, 689 S.E.2d
576, 583 (2010) (citation omitted).
As to whether our Juvenile Code, codified in Chapter 7B of
our North Carolina General Statutes, and specifically, Subchapter
I, “Abuse, Neglect, Dependency,” address intervention, the briefs
submitted to us reference only section 7B-1103, which allows a
person or agency to “intervene in a pending abuse, neglect, or
dependency proceeding for the purpose of filing a motion to
terminate parental rights.” N.C. Gen. Stat. ' 7B-1103(b) (2011)
(emphasis added).3 We find no other statute within this subchapter
specifically referencing intervention. Therefore, we look to our
Rules of Civil Procedure for authority governing intervention.
The General Assembly has set out the
judicial procedure to be used in juvenile
proceedings in Chapter 7B of the General
Statutes. This Court has previously held that
[t]he Rules of Civil Procedure, while they are
not to be ignored, are not superimposed upon
these hearings. Instead, the Rules of Civil
Procedure apply only when they do not conflict
3 We note that effective 1 October 2013, within Subchapter I,
“Abuse, Neglect, Dependency,” section 7B-401.1 states that
“[e]xcept as provided in G.S. 7B-1103(b), the court shall not allow
intervention by a person who is not the juvenile's parent,
guardian, custodian, or caretaker but may allow intervention by
another county department of social services that has an interest
in the proceeding. This section shall not prohibit the court from
consolidating a juvenile proceeding with a civil action or claim
for custody pursuant to G.S. 7B-200.” N.C. Gen. Stat. § 7B-401.1
(effective 1 October 2013).
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with the Juvenile Code and only to the extent
that the Rules advance the purposes of the
legislature as expressed in the Juvenile Code.
In re L.O.K., 174 N.C. App. 426, 431—32, 621 S.E.2d 236, 240 (2005)
(citations and internal quotation omitted).
Rule 24 of our Rules of Civil Procedure governs intervention,
both intervention of right and permissive intervention. See N.C.
Gen. Stat. ' 1A-1, Rule 24 (2011). Rule 24(a)(2), “Intervention
of right,” states, in pertinent part, that
[u]pon timely application anyone shall be
permitted to intervene in an action . . . .
When the applicant claims an interest relating
to the property or transaction which is the
subject of the action and he is so situated
that the disposition of the action may as a
practical matter impair or impede his ability
to protect that interest, unless the
applicant's interest is adequately
represented by existing parties.
N.C.G.S. ' 1A-1, Rule 24(a)(2).
Permissive intervention pursuant to Rule 24(b)(2), states, in
part, that
anyone may be permitted to intervene in an
action.
When an applicant's claim or defense and the
main action have a question of law or fact in
common. When a party to an action relies for
ground of claim or defense upon any statute or
executive order administered by a federal or
State governmental officer or agency or upon
any regulation, order, requirement, or
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agreement issued or made pursuant to the
statute or executive order, such officer or
agency upon timely application may be
permitted to intervene in the action.
N.C.G.S. ' 1A-1, Rule 24(b)(2).
Statute 7B-100, entitled “Purpose,” of our Juvenile Code,
Subchapter I, states that Subchapter I “shall be interpreted and
construed so as to implement the following purposes and policies
. . . [t]o develop a disposition in each juvenile case that
reflects consideration of the facts, the needs and limitations of
the juvenile, and the strengths and weaknesses of the family.”
N.C. Gen. Stat. § 7B-100(2) (2011). We construe this provision to
permit intervention pursuant to Rule 24. See generally, In re
Baby Boy Scearce, 81 N.C. App. 531, 541, 345 S.E.2d 404, 410 (1986)
(where this Court, when considering permissive intervention under
Chapter 7A, the predecessor to Chapter 7B, sanctioned the use of
permissive intervention where it determined that intervention “was
necessary to elicit full and accurate information pertaining to
the welfare of the child.” (citation omitted)).
In its 9 January 2011 disposition order, the trial court
acknowledges that prior to receiving evidence as to the
dispositional hearing, it considered motions to intervene,
including the motion filed by Claire. The trial court concluded
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that “[n]o person seeking to intervene may be allowed to intervene
as of right.”
This Court has stated that where no other
statute confers an unconditional right to
intervene, the interest of a third party
seeking to intervene as a matter of right
under N.C.G.S. § 1A–1, Rule 24(a)
must be of such direct and immediate
character that he will either gain or
lose by the direct operation and effect
of the judgment.... [sic] One whose
interest in the matter in litigation is
not a direct or substantial interest, but
is an indirect, inconsequential, or a
contingent one cannot claim the right to
defend.
Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 459,
515 S.E.2d 675, 682—83 (1999) (citations and quotations omitted).
In her brief to this Court, Claire contends that
[t]o the extent [I] [am] considered only as a
legal ‘sister’ of [the] four children, [I] was
entitled to intervene as a party in the
proceedings as a matter of right so that [I]
could adequately present and represent the
otherwise unrepresented family member
interest and arguments for maintaining a
family placement, family relationship, and
potential for a family reunification with the
four juveniles . . . and so as to assure [I]
may have a proper legal voice in this appeal
and any subsequent juvenile court proceedings.
[I] [have] a direct interest in the family
relationships with each of the juveniles which
can be protected and represented adequately
only if [I] (or some family member) is allowed
to participate as a full party to the juvenile
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proceedings. The adoption of the juveniles by
strangers to the family would forever sever
the family ties and legal relationships of
[me] and [my] relatives with the children.
Initially, we note Claire’s acknowledgment that as to four of
the children subject to this action, she has no parental rights.
In an unchallenged finding of fact, the trial court stated that
Janice adopted Tracy, Todd, Mary, and Ann in 2009. See Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no
exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal.”) (citations omitted). Pursuant to N.C. Gen.
Stat. § 48-1-106,
[a] decree of adoption severs the relationship
of parent and child between the individual
adopted and that individual’s biological or
previous adoptive parents. After the entry of
a decree of adoption, the former parents are
relieved of all legal duties and obligations
due from them to the adoptee, . . . and the
former parents are divested of all rights with
respect to the adoptee.
N.C. Gen. Stat. § 48-1-106(c) (2011). Thus, Claire’s parental
rights to Tracy, Todd, Mary, and Ann — the four juveniles adopted
by Janice — have been severed. Claire has also been divested of
all rights and relieved of all legal duties and obligations with
respect to these four juveniles. See id.
Furthermore, Claire’s motion to intervene fails to provide
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any indication that she has the authority to defend or assert “the
otherwise unrepresented family member interest [or can present] .
. . arguments for maintaining a family placement, family
relationship, and potential for a family reunification with the
four juveniles[.]” See Virmani, 350 N.C. at 459, 515 S.E.2d at
683 (holding that a party cannot directly intervene where its
interest is at best indirect). We find that Claire’s motion to
intervene failed to assert a claim or defense that can act as a
basis for intervening in this action. Pursuant to our Rules of
Civil Procedure, Rule 24, “[a] person desiring to intervene shall
serve a motion to intervene upon all parties affected thereby.
The motion shall state the grounds therefor and shall be
accompanied by a pleading setting forth the claim or defense for
which intervention is sought.” N.C. Gen. Stat. ' 1A-1, Rule 24(c)
(2011).
Given that Claire’s parental rights to the four adopted
juveniles have been severed, her motion to intervene in the
juvenile’s dispositional hearing failed to present any direct or
immediate interest such that she was entitled to intervene in the
juvenile’s dispositional hearing as a matter of right. See
N.C.G.S. ' 1A-1, Rule 24(a)(2); Virmani, 350 N.C. at 459, 515
S.E.2d at 682-83. Moreover, Claire’s motion was defective for
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failure to include a pleading asserting a claim or defense as
required by Rule 24(c). See Kahan v. Longiotti, 45 N.C. App. 367,
371, 263 S.E.2d 345, 348 (1980) (“[A] motion to intervene . . .
must be accompanied by a proposed pleading.”), overruled on other
grounds by Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).
Accordingly, we affirm the trial court’s denial of Claire’s motion
to intervene as a matter of right.
We also note that in addition to its conclusion denying
intervention as a matter of right, the trial court denied Claire’s
motion to intervene on the basis of permissive intervention. In
considering the use of permissive intervention as authorized under
the juvenile code as codified in Chapter 7A, the predecessor to
the juvenile code as codified in Chapter 7B, this Court has
sanctioned its use where it “was necessary to elicit full and
accurate information pertaining to the welfare of the child.” In
re Baby Boy Scearce, 81 N.C. App. at 541, 345 S.E.2d at 410
(citation omitted).
In Baby Boy Scearce, the foster parents sought to intervene
in an action in which a biological father sought physical and legal
custody of a child. The trial court concluded that the foster
parents’ right to intervene “derives from the child’s right to
have his or her best interests protected.” Id. Other factors
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considered by this Court included that intervention “was necessary
to elicit full and accurate information pertaining to the welfare
of the child,” id. at 541, 345 S.E.2d at 410 (citation omitted),
and that “intervention by the foster parents would not ‘prejudice
the adjudication of the rights of the original parties.’” Id.
Nevertheless, while Claire did not challenge on appeal the
trial court’s ruling that permissive intervention should be denied
as a matter of law, we do not believe the trial court abused its
discretion in denying Claire’s motion to intervene on the basis of
permissive intervention.
While the trial court’s order denied Claire’s motion to
intervene and participate as a party to the dispositional
proceedings, we acknowledge the trial court’s findings regarding
the participation of the juvenile’s family members in determining
their individual best interests: “from the representations of
counsel and the presence of all interested relatives in the
courtroom, the court is comfortable that sufficient evidence
regarding all possible relative placements will be offered for the
court’s consideration in determining the best interests of each of
the children”; and “[t]he proposed intervenors’ interests will not
be adversely affected by denying their motions to intervene since
they may participate indirectly in the proceedings through their
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status as witnesses in the disposition and suggested relative
placements.”
Standing
We next consider a motion to dismiss Claire’s appeal as to
the four juveniles to whom Claire has surrendered her parental
rights. Before the Court, the guardian ad litem (“GAL”) asserts
that Claire lacks standing to bring forward her appeal in relation
to Tracy, Todd, Mary and Ann. We agree, and grant the GAL’s motion
to dismiss Claire’s appeal as to Tracy, Todd, Mary and Ann.
A juvenile matter based on Subchapter I, “Abuse, Neglect,
Dependency” of General Statutes Chapter 7B may be appealed by the
following parties:
(1) A juvenile acting through the juvenile’s
guardian ad litem previously appointed under
G.S. 7B-601.
(2) A juvenile for whom no guardian ad litem
has been appointed under G.S. 7B-601. If such
an appeal is made, the court shall appoint a
guardian ad litem pursuant to G.S. 1A-1, Rule
17 for the juvenile for the purposes of that
appeal.
(3) A county department of social services.
(4) A parent, a guardian appointed under G.S.
7B-600 or Chapter 35A of the General Statutes,
or a custodian as defined in G.S. 7B-101 who
is a nonprevailing party.
(5) Any party that sought but failed to obtain
termination of parental rights.
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N.C. Gen. Stat. § 7B-1002 (2011); see N.C. Gen. Stat. ' 7B-1001
(2011) (Right to appeal); see also In re A.P., 165 N.C. App. 841,
600 S.E.2d 9 (2004) (holding that a step-grandfather had no
standing to appeal even though his name was listed on the petition
seeking to adjudicate the child neglected where the step-
grandfather was not a caregiver, custodian, or parent of the
child).
The trial court’s finding of fact that Janice adopted four of
Claire’s biological children — Tracy, Todd, Mary and Ann — in 2009
is uncontested. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731
(“Where no exception is taken to a finding of fact by the trial
court, the finding is presumed to be supported by competent
evidence and is binding on appeal.”) (citations omitted). As a
consequence, Claire’s parental rights to those four juveniles have
been severed. See N.C.G.S. § 48-1-106 (“[a] decree of adoption
severs the relationship of parent and child between the individual
adopted and that individual’s biological or previous adoptive
parents.”). Claire was not appointed by the court as a guardian
for the four adopted juveniles following Janice’s death and no
findings of fact support a conclusion that Claire acted as a
custodian for the juveniles. See N.C. Gen. Stat. § 7B-101(8)
(2011) (A “Custodian” is defined as “[t]he person or agency that
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has been awarded legal custody of a juvenile by a court or a
person, other than parents or legal guardian, who has assumed the
status and obligation of a parent without being awarded the legal
custody of a juvenile by a court.); see also In re T.B., 200 N.C.
App. 739, 685 S.E.2d 529 (2009) (holding that the respondent was
not a custodian to the child where the record reflected no order
awarding either legal or physical custody of the juvenile to the
respondent and no evidence supported a finding that the respondent
stood in loco parentis in relation to the child).
Because Claire does not come within any category of persons
afforded a statutory right to appeal from a juvenile matter
pursuant to N.C.G.S. '' 7B-1001 and 7B-1002, Claire lacks standing
to appeal the trial court’s 3 May 2012 adjudication order and 9
January 2013 juvenile disposition order as those orders pertain to
Tracy, Todd, Mary, and Ann — the four children Claire surrendered
to adoption. See N.C.G.S. § 7B-1002. As a result, we address
Claire’s arguments arising from her appeal of the 3 May 2012
adjudication order and 9 January 2013 juvenile disposition order
only as those orders relate to Ashley and John.
II. Adjudication of Dependency
Claire argues that the trial court erred by adjudicating
Ashley and John dependent juveniles within the meaning of N.C.
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Gen. Stat. § 7B-101. Claire contends that there was insufficient
evidence presented at the adjudicatory hearing to meet the clear
and convincing standard necessary to conclude the juveniles were
dependent. We disagree.
In all actions tried upon the facts
without a jury ... [sic] the court shall find
the facts specifically and state separately
its conclusions of law thereon[.] . . . The
resulting findings of fact must be
sufficiently specific to enable an appellate
court to review the decision and test the
correctness of the judgment.
In re J.S., 165 N.C. App. 509, 510—11, 598 S.E.2d 658, 660 (2004)
(citations and quotations omitted). “The role of this Court in
reviewing a trial court’s adjudication of [dependency] is to
determine (1) whether the findings of fact are supported by clear
and convincing evidence, and (2) whether the legal conclusions are
supported by the findings of fact[.]” In re T.H.T., 185 N.C. App.
337, 343, 648 S.E.2d 519, 523 (2007) (citation and quotation
omitted). “If such evidence exists, the findings of the trial
court are binding on appeal, even if the evidence would support a
finding to the contrary.” Id. (citation omitted).
“Dependent juvenile” is defined in N.C. Gen. Stat. § 7B-
101(9) as:
[a] juvenile in need of assistance or
placement because the juvenile has no parent,
guardian, or custodian responsible for the
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juvenile’s care or supervision or whose
parent, guardian, or custodian is unable to
provide for the care or supervision and lacks
an appropriate alternative child care
arrangement.
N.C. Gen. Stat. § 7B-101(9) (2011). “In determining whether a
juvenile is dependent, the trial court must address both (1) the
parent’s ability to provide care or supervision, and (2) the
availability to the parent of alternative child care
arrangements.” In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644,
648 (2007) (citation and quotation omitted). “Findings of fact
addressing both prongs must be made before a juvenile may be
adjudicated as dependent, and the court’s failure to make these
findings will result in reversal of the court.” Id. (citation
omitted).
In the instant case, it is not disputed that the legal
custodian of the juveniles, Janice, is deceased. The trial court
further found that “[a]t the time that the juvenile petition was
filed, there were no appropriate family members immediately
available to care for the children long-term.” This finding is
supported by the uncontradicted testimony of Kris Tucker, a DSS
social worker, who testified at the adjudicatory hearing that there
were no appropriate family members to care for the juveniles.
Tucker further testified that although the juveniles were in the
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care of an aunt and uncle, Mr. and Mrs. Chase, “they are not able
to provide ongoing care and are not interested in establishing
permanence for [the juveniles].” Claire did not present herself
as a potential caregiver at the adjudicatory hearing, nor were any
alternative caregivers presented. Accordingly, we conclude that
the trial court did not err by adjudicating Ashley and John as
dependent juveniles.
III. Permanent Plan
Claire next argues that the trial court erred when, in the
adjudicatory order, it made findings of fact and conclusions of
law regarding a “temporary permanent plan” for the juveniles.
However, we conclude that any alleged error was rendered harmless
by the trial court’s entry of a permanent plan in its dispositional
order. See In re J.P., ___ N.C. App. ___, ___ S.E.2d ___ (19
November 2013) (COA13-35-2).
Claire additionally argues that the trial court erred by
entering a permanent plan for the juveniles at disposition when
she did not have the statutorily required notice that the trial
court would consider a permanent plan. We disagree.
Claire was provided notice that the trial court intended to
consider a permanent plan for the juveniles at disposition when it
made a “temporary permanent plan” at adjudication. See id. Thus,
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as in In re J.P., Claire and her attorney attended and participated
in the trial court’s dispositional hearing and did not object to
the lack of formal notice. Id. at ___, ___ S.E.2d at ___ (citing
In re J.S., 165 N.C. App. 509, 514, 598 S.E.2d 658, 662 (2004)
(where this Court stated that a party waives its right to notice
under section 7B–907(a) by attending the hearing in which the
permanent plan is created, participating in the hearing, and
failing to object to the lack of notice). Accordingly, we conclude
that Claire waived any objection to lack of formal notice of a
hearing on a permanent plan when she made a pre-trial motion to
intervene in the dispositional hearing, made arguments before the
trial court, was allowed to present witnesses regarding the best
interest of the child, and failed to object to the lack of formal
notice.
IV. Dispositional Conclusions
Claire next challenges several of the trial court’s
conclusions of law. Claire does not challenge any of the trial
court’s findings of fact and, accordingly, they are binding on
appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Our
review is therefore limited to whether the trial court’s findings
of fact support its conclusions of law and disposition. In re
Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004).
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Claire first challenges the trial court’s conclusions of law
2 and 7.
2. No relative of the juveniles is able to
provide proper care and supervision of all the
juveniles in a safe home. Placement with any
of the identified relatives is contrary to the
best interests of the juveniles.
. . . .
7. The [DSS] has made reasonable and diligent
efforts to secure relative placements for the
children. The three relatives identified were
not completely able to provide for the
children.
Pursuant to N.C. Gen. Stat. § 7B-903(a)(2)(c), when placing
a juvenile outside of the home,
[i]n placing a juvenile in out-of-home care
under this section, the court shall first
consider whether a relative of the juvenile is
willing and able to provide proper care and
supervision of the juvenile in a safe home. If
the court finds that the relative is willing
and able to provide proper care and
supervision in a safe home, then the court
shall order placement of the juvenile with the
relative unless the court finds that the
placement is contrary to the best interests of
the juvenile.
N.C. Gen. Stat. § 7B-903(a)(2)(c) (2011). This Court has
recognized that our statutes give a preference, where appropriate,
to relative placements over non-relative, out-of-home placements.
In re L.L., 172 N.C. App. 689, 701, 616 S.E.2d 392, 399 (2005).
However, before determining whether relative or non-relative
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placement is in the best interest of the juvenile, the statute
first requires the trial court to determine whether the relative
in question is willing and able to provide proper care and
supervision in a safe home. N.C. Gen. Stat. § 7B-903(a)(2)(c).
We review a dispositional order only for abuse of discretion. In
re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002).
Here, the trial court found as fact:
8. On March 29, 2012, [Ann, Mary and John]
were moved from the home of [Mr. and Mrs.
Chase] at the request of the placement. [Mr.
and Mrs. Chase] indicated to [DSS] that they
thought the placement would be a temporary one
and that they could not provide for the
children long term. At the time placement was
needed . . . the only identified and approved
placement was with . . . the younger
children’s school principal, and her fiancé
[Mr. Alfred]. Placement with [Kimberly Chase,
an aunt] was not approved at the time because
a fire in her home in late February 2012 had
left her without a home, because she had
several identified medical issues and
medications, and because she had fallen asleep
on two occasions while talking with Social
Worker Hardison about the children. The [DSS]
was concerned that [Kimberly Chase] could not
provide the supervision needed for the
children. [Claire Wilson] was unable to be
approved for placement of the children because
she was under investigation by the [DSS]
regarding the two children in her home
following positive drug screens for cocaine on
February 16, 2012 and March 8, 2012.
9. On May 3, 2012, [Tracy, Todd and Ashley]
were moved from [Lisa Chase’s, an aunt] home
because of concerns identified by the [DSS].
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These concerns included a lack of sufficient
space in the home for the children, the fact
that [Lisa Chase] was out of compliance with
Rowan Housing Authority regulations by having
the children in the home, issues with
supervision, excessive tardiness and absences
in school, reports from the school . . . that
the children would come to school hungry,
[Lisa Chase’s] tendency to minimize the school
behavioral problems of the children, and [Lisa
Chase’s] transporting of the children in her
car without having them properly restrained in
safety seats. Social Worker Hardison
witnessed the children in the car not properly
restrained on three occasions. [Tracy, Todd,
and Ashley] were placed with their siblings in
the home of [Mr. and Mrs. Alfred]. The
children were happy and excited to be placed
together in one home again.
. . . .
23. On May 17, 2012, the [DSS] received a
request from [Claire Wilson’s attorney] to
consider certain relatives and family friends
for placement of the juveniles. Since the
juveniles were all placed together by this
time, keeping them together was an important
goal of [DSS] in its decision-making. The
[DSS] made diligent efforts to study and
become familiar with each option presented to
it for placement of the children.
. . . .
27. [Lisa Chase] continued to be ruled out as
a placement option because of the concerns
that led to the removal of the three youngest
children from her home on May 3, 2012. . . .
[Terra Roberts (Godmother to the juveniles)]
was ruled out as a placement because of her
inability to provide proper [care and]
supervision of the children and because of
inadequate space for the children in her home.
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28. [Mr. and Mrs. Miles], who live in Guilford
County, submitted to a pre-placement
assessment by Guilford Count DSS. The
assessment was positive, and [they were]
willing to have all six children placed with
them. The children were not moved to [their]
home for several reasons. One, several of the
children indicated that they did not know
[them] and did not want to move to Greensboro.
Two, . . . [a]lthough a past investigation of
neglect was not substantiated, it was of some
concern to the [DSS] that [Mrs. Miles] told
Social Worker Williams on September 5, 2012
that she had no past history with any DSS.
Three, the [DSS] has been unable to ascertain
after speaking with [Mr. and Mrs. Miles] and
other family members exactly how [Mr. Miles]
is related to the children. [Mr. Miles] could
only indicate that he was somehow related on
“his father’s side.” A few other kinship
options . . . were individually ruled out as
placement options for failing to return the
kinship assessment packets mailed to them by
the [DSS] or because they were 19 and 20 years
old, too young to take on the responsibility
of raising six children.
29. The most positive relative placement
option for the children [was Jenetta Thomas].
[Jenetta Thomas is] the children’s second
cousin. . . . [Jenetta Thomas] stated that
she is willing to provide a home for all of
the children, but at the time Social Worker
Williams visited her she could accommodate
only two or three additional children in her
home. . . . [Ashley, Mary, and John] were asked
about possible placement with [Jenetta
Thomas], and they indicated that they do not
know [her] well and do not want to live with
her in a different county “out in the
country.”
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30. [Betsy Monroe, Jenetta Thomas’ sister].
. . was found by [DSS to be] willing and able
to take two or three of the children based on
space limitations. . . . The children only
have an acquaintance relationship with [Betsy
Miller] at this time.
It is apparent from the trial court’s exhaustive findings of
fact that the trial court considered several relative placements
but no suitable option was available; where potentially available,
the court considered it not in the juveniles’ best interests to
place the juveniles with the relative. Thus, we conclude the trial
court did not abuse its discretion by placing the juveniles in a
non-relative placement. Accordingly, we hold that the trial court
did not err in making conclusions of law 2 and 7.
Claire next challenges conclusions of law 5 and 6:
5. Efforts to eliminate the need for
placement of the juveniles would be
inconsistent with the juveniles’ health,
safety, and need for a safe permanent home
within a reasonable period of time.
6. Reunification efforts are not required in
this matter . . . [as to John and Ashley
because] significant safety issues make
reunification with a parent within a
reasonable time unlikely. [Claire], their
mother, has not asked to have the children
live with her.
Pursuant to N.C. Gen. Stat. § 7B-507,
[i]n any order placing a juvenile in the
custody or placement responsibility of a
county department of social services, whether
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an order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that:
(1) Such 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) (2011).
Here, the trial court found as fact:
17. All of the children have been diagnosed
with PTSD and anxiety disorder. . . [Ashley]
has low cognitive functioning and a language
disorder. All of the children . . . receive
weekly counseling services for trauma-based
disorders.
18. Therapist Jill [Hill] specializes in
working with children who have experienced
trauma. She has been seeing [Ann, John,
Ashley, and Tracy] weekly since early
September 2012. Ms. [Hill] has been working
with the children on trust-building and
establishing a rapport with them. Ms. [Hill]
feels that all the children need ongoing
counseling based on the traumatic death of
[Janice Lake] and the past history of multiple
placements, chaos, separation from siblings,
and instability. Ms. [Hill]’s focus with the
children is on stability and helping them to
feel safe. [Ann, John, Ashley, and Tracy]
have expressed to Ms. [Hill] that they like
where they are living, they feel safe there,
they want to stay together, and they want to
stay with [Mr. and Mrs. Alfred]. The children
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speak of each other often during therapy with
Ms. [Hill] and appear to have a strong
connection with each other. Ms. [Hill] is
concerned that moving the children at this
point would be very disruptive to their
pathway of feeling safe. The children’s
issues cannot be fixed quickly, and their
nervous systems are very fragile.
. . . .
24. [Claire Wilson] continued to be ruled out
as a placement because of her positive drug
screens and her failure to follow up with drug
and mental health treatment.
25. Also relevant to the inquiry of whether
or not [Claire Wilson] may be an appropriate
long-term placement for the children is the
prior neglect and DSS history of the children.
[Claire Wilson] has a total of ten children,
with only two of those children in her care.
Her oldest two children [] were in foster care
due to neglect on two separate occasions and
eventually were adopted by their maternal
great-grandmother . . . in 2009. Custody of
[John and Ashley] was granted to [Janice
Lake], their maternal grandmother, in 2004[;]
[Mary and Ann] were in foster care from 2003
until 2005 and from 2006 until 2009 pursuant
to petitions filed and adjudicated for neglect
by [Claire Wilson]. [Todd and Tracy] were in
the legal custody of the [DSS] due to neglect
by [Claire Wilson] from 2006 to 2009. [Mary,
Ann, Todd, and Tracy] were adopted by their
maternal grandmother, [Janice Lake], in 2009.
[Claire Wilson] is not requesting that the
court consider placing the six children with
her. She is in treatment with Daymark
Recovery Services[.]
We conclude the uncontested findings of fact support the trial
court’s conclusions that reunification efforts would be
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inconsistent with the juveniles’ health, safety and need for a
permanent home within a reasonable period of time and were not
required. Accordingly, we hold that the trial court did not err
in making conclusions of law 5 and 6.
VI. Visitation
Claire next argues that the trial court erred regarding its
visitation plan for Ashley and John because it failed to specify
the time, place, and conditions under which visitation may be
exercised. In re E.C., 174 N.C. App. 517, 521—23, 621 S.E.2d 647,
651—52 (2005) (holding that a trial court must include “an
appropriate visitation plan in its dispositional order”). We
agree.
North Carolina General Statutes, section 7B-905(c) provides
that any dispositional order which leaves the minor child in a
placement “outside the home shall provide for appropriate
visitation as may be in the best interests of the juvenile and
consistent with the juvenile’s health and safety.” N.C. Gen. Stat.
§ 7B-905(c) (2011). This Court has stated that:
[i]n the absence of findings that the parent
has forfeited their right to visitation or
that it is in the child’s best interest to
deny visitation “the court should safeguard
the parent’s visitation rights by a provision
in the order defining and establishing the
time, place[,] and conditions under which such
visitation rights may be exercised.”
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In re E.C., 174 N.C. App. 517, 522-23, 621 S.E.2d 647, 652 (2005)
(citation omitted).
Here, the trial court made no finding that Claire had
forfeited her right to visitation or that it was in the best
interests of Ashley or John to deny visitation. Therefore, the
trial court was required to provide a plan containing a minimum
outline of visitation, such as the time, place, and conditions
under which visitation may be exercised. Id. The court provided
the following order governing visitation: “The juveniles shall
visit regularly with their siblings who live with [Ms. Wilson] and
[Ms. Chase], [Kimberly Chase], and [Claire Wilson]. These visits
shall begin as soon as possible and shall be supervised by a
caregiver selected by the [DSS], including some visits at [Ms.
Chase]’s home if possible.” The order does not contain the
“minimum outline” required by In re E.C. As such, the plan
constitutes an impermissible delegation of the court’s authority
under N.C.G.S. § 7B-905. See In re Stancil, 10 N.C. App. 545,
552, 179 S.E.2d 844, 849 (1971) (discussing how the award of
visitation rights, which is a judicial function, cannot be
delegated to a child’s custodian). Therefore, we remand for entry
of an order of visitation which clearly defines and establishes
“the time, place[,] and conditions” under which Claire may exercise
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her visitation rights. In re E.C., 174 N.C. App. at 522—23, 621
S.E.2d at 652.
Affirmed in part, remanded in part, and appeal dismissed in
part.
Judges McGEE and STROUD concur.
In re T.H.
Court: Court of Appeals of North Carolina
Date filed: 2014-01-21
Citations: 232 N.C. App. 16
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