In re L.L

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordan ce with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-594 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 IN THE MATTER OF: Orange County No. 11 JA 1 L.L. Appeal by respondent-mother from order entered 28 February 2012 by Judge Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 9 October 2012. No brief for petitioner-appellee Orange County Department of Social Services. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellee father. Mary McCullers Reece, for respondent-appellant mother. Michael N. Tousey, for guardian ad litem. CALABRIA, Judge. Respondent-mother appeals from a permanency planning review order. 1 Respondent-father ( Sam )1 also filed a brief, but is not We use pseudonyms to protect the identity of the children and for ease of reading. -2appealing the permanency planning requests that we uphold the order. review order, rather he We reverse and remand. I. Background On 6 January 2011, the Orange County Department of Social Services ( DSS ) filed a petition alleging that L.L. ( Larry ) was a neglected and dependent juvenile. According to the petition, Larry was neglected in that he did not receive proper care, supervision or discipline from his parent and that he lived in an environment injurious to his welfare. The petition also alleged that Larry was dependent because respondent-mother was unable to provide for his care or supervision. alleged that when one of respondent-mother s Namely, DSS other children arrived at school, the child was dirty and hungry. In addition, respondent-mother appeared to have mental health problems, she threatened to refused disclose to flee the jurisdiction with the name church providing housing for them. allegations. of the the children, she claimed and was DSS provided facts to support the The trial court found if Larry remained in her custody he was at risk of harm and ordered Larry to be placed in non-secure custody with DSS. old. At the time, Larry was 8 months -3On 14 June 2011, the trial court entered an adjudication and dispositional order continuing Larry s custody and placement authority with DSS. On 17 June 2011, when Larry was 13 months old, DSS placed him in a trial home placement with Sam. On 26 July 2011 and on 7 December 2011, when the trial court reviewed the custody order, custody and placement authority were to continue with DSS, and Larry s placement was to continue with Sam. A permanency planning hearing was held on 16 February 2012. According to the Permanency Planning Order, filed on 28 February 2012, the trial court Larry to visitation Sam. at awarded legal and physical custody of Respondent-mother a visitation remained with Sam. was center. granted Legal custody bi-weekly of Larry Respondent-mother appeals. II. Permanency Planning Order Respondent-mother concluding that argues placement that with Sam the was trial in court the erred child s by best interest because this conclusion was not supported by a required finding of fact pursuant to N.C. Gen. Stat. § 7B-907(b)(1). We agree. Pursuant to N.C. Gen. Stat. § 7B-907(b), courts reviewing a permanency planning order are required to consider certain -4relevant information. N.C. Gen. Stat. § 7B-907(b) (2011). Particularly, if the juvenile is not returned home, the court shall consider specific factors and make regarding those that are relevant. Id. written findings One of the factors that requires a finding is the answer to: Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile s best interests to return home. N.C. Gen. Stat. § 7B-907(b)(1) (2011). Even where the evidence and reports [of a case] might have supported the determination of the trial court, . . . our statute requires the court to consider the § 7B 907(b) factors and make relevant findings. In re Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003). The court s findings of fact also must be sufficiently specific to enable an appellate court to review judgment. the decision and test the correctness of the In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) (internal citation and quotation marks omitted). The lack of sufficient specificity in a permanency planning order as to the factors listed in N.C.G.S. § 7B-907(b) will result in reversal and remand for the making of appropriate Ledbetter, 158 N.C. App. at 286, 580 S.E.2d at 395. findings. -5In the instant case, rather than allowing Larry to return home, the court granted custody of the juvenile to Sam. Pursuant to N.C. Gen. Stat. § 7B-907(b), placement with a noncustodial parent is not considered a return home. See In Re J.M.D., __ N.C. App. __, __, 708 S.E.2d 167, 172 (2011) ( The word home in [N.C. Gen. Stat. § 7B-907(b)(1)] is clearly referring to the home from which the juvenile was removed. ). Since the trial court granted Sam custody of Larry, a required finding was whether it was possible for the juvenile to be returned home immediately or within the next six months, and why it home. was not in the juvenile s best N.C. Gen. Stat. § 7B-907(b)(1). interests to return Although the trial court made findings regarding other factors listed in N.C. Gen. Stat. § 7B-907(b), the trial court s order lacks a necessary finding regarding whether it was possible for Larry to return home immediately or within six months. Accordingly, we must reverse the trial court s order and remand the case for the entry of an order which is consistent with the requirements of N.C. Gen. Stat. § 7B-907(b). The guardian ad litem ( GAL ) and Sam argue in their briefs that findings of fact 6(e)-(h) and 9 are sufficient to imply consideration of N.C. Gen. Stat. § 7B-907(b)(1). However, -6findings 6(e)-(h) were used to support the trial court s finding that [i]t is possible for the juvenile to be returned [sic] home of the non removal parent in the immediate future or within the next six (6) months. Finding of fact 9 states: Further efforts to reunify or place the juvenile with Respondent mother would be futile or inconsistent with the best interest of the juvenile in that the juvenile is thriving in the care of [Sam] and it is in the juvenile s best interest that custody be awarded to [Sam]. It is in the juvenile s best interest that Respondent mother have visits with the juvenile. This finding is incomplete because it only considers the second part of N.C. Gen. Stat. § 7B-907(b)(1), why it is not in the juvenile s best interests to return home. Thus, these findings fail to demonstrate that the trial court considered [w]hether it is possible for the juvenile to be returned home to the removal parent, as N.C. Gen. Stat. § 7B-907(b)(1) requires. The GAL alternatively argues that this first criterion is not relevant because the permanency plan at issue in the instant case was scheduled for additional consideration. While it is true that the court is not expressly required to make every finding listed, relevant children. to the it must still permanency make plans those being findings that are developed for the In re J.S., 165 N.C. App. at 512, 598 S.E.2d at 660- -761. In the instant case, the permanent plan was placement with Sam. Because Larry was removed from the home and placed with Sam, whether or not it was possible for Larry to be returned home was a relevant factor. Respondent-mother argues in her brief that this case needs to be reversed and remanded so that the trial court may hear new evidence, make the required findings as to whether or not [Larry] can return [home], and enter a permanent plan that is in [Larry s] best interest. To avoid a second appeal, we note that it is entirely within the trial court s discretion as to whether to permit presentation of additional evidence on remand. J.M.D., __ N.C. App. at __, 708 S.E.2d at 173. III. Visitation Plan Respondent-mother also argues that the trial court violated N.C. Gen. Stat. § 7B-905(c) by failing to adopt an appropriate visitation duration of plan the including visits. terms Our designating reversal of the the time trial and court s permanency planning review order obviates our need to address issues pertaining to visitation. However, in an effort to prevent potential repetition of error on remand, we choose to briefly appeal. address respondent-mother s remaining argument on -8 Any dispositional order under which a juvenile is removed from the custody of a parent . . . or under which the juvenile s placement is continued 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). 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. In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647, 652 (2005). The failure to specify the circumstances under which a parent may visit a child could result in a complete denial of the right. In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971). It is improper for the trial court to delegate the judicial function of establishing visitation rights to a custodian. Id. An order visitation that is includes improper, granting even a if custodian the order discretion over indicates that visitation should not be unreasonably prevented. In re L.B., 181 N.C. App. 174, 192, 639 S.E.2d 23, 32 (2007). determined guardian, that or in an the order leaving discretion of visitation a This Court up treatment to team, the was improper. In re R.A.H., 182 N.C. App. 52, 61, 641 S.E.2d 404, -9409-10 (2007); In re D.M., __ N.C. App. __, __, 712 S.E.2d 355, 358 (2011). An order visitation is that fails improper to provide because it may a minimum outline effectively allow for the guardian to deny visitation. In re E.C., 174 N.C. App. at 523, 621 S.E.2d at 652. lacks specificity The ultimate inquiry is whether the order such that it could result in a complete denial of the right [to visitation] and in any event would be delegating a judicial function to the custodian. Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849 (emphasis added). An order that provided for weekly, supervised visitation was found to be unsatisfactory because it failed to establish the minimum outline for visitation. In re W.V., 204 N.C. App. 290, 295, 693 S.E.2d 383, 387 (2010). In the instant case, the trial court granted respondentmother minimum bi-weekly supervised visits with the juvenile at a visitation center such as Time Together in Raleigh. This order does not specify a day of the week, a time of day, the duration of the visits, or the exact location. It merely provides the minimum frequency and that the visits should take place at a visitation center. The facts of the instant case indicate effectively that visitation could be denied by the -10custodian by choosing a location for visits that is inconvenient for respondent-mother, by choosing scheduling visits at times or on days which are inconvenient for respondent-mother, allowing visits for only a short duration. visitation plan is insufficient. or by As a result, the On remand, the trial court should include a complete minimum outline as required by In re E.C in the visitation plan. IV. Conclusion Accordingly, because we conclude that the trial court failed to make a required finding of fact regarding whether it was possible for Larry to be returned home immediately or within the next six months, we reverse and remand for a new permanency planning hearing. Reversed and remanded. Judges BEASLEY and THIGPEN concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.