In re H.J.A

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NO. COA12-638 NORTH CAROLINA COURT OF APPEALS Filed: 20 November 2012 IN THE MATTER OF: Mecklenburg County Nos. 08 JT 326, 09 JT 368 H.J.A. and T.M.A. Appeal by respondent-mother from orders entered 6 January 2011 and 7 February 2012 by Judge Louis A. Trosch, Jr., in District Court, Mecklenburg County. Heard in the Court of Appeals 29 October 2012. Twyla Hollingsworth-Richardson petitioner-appellee for Mecklenburg County Department of Social Services, Youth and Family Services. Appellate Defender Staples Hughes by Assistant Appellate Defender Joyce L. Terres for respondent-appellant mother. M. Carridy Bender for guardian ad litem. STROUD, Judge. Respondent-mother appeals from the trial court s 7 February 2012 order terminating her parental rights to her daughters, H.J.A. and T.M.A., as well the trial court s 6 January 2011 order ceasing reunification efforts. Because the trial court failed to make sufficient findings of fact to support its order ceasing reunification efforts and its order terminating -2respondent-mother s parental rights, we reverse the trial court s orders and remand for additional findings of fact. I. Facts In May 2008, the Mecklenburg County Department of Social Services, Youth and Family Services Division, ( DSS ) filed a petition juvenile. day. alleging that H.J.A. ( Hailey )1 was a dependent DSS was given nonsecure custody of Hailey on the same At the time the petition was filed, Hailey was two days old, and respondent-mother herself was a juvenile, also in DSS custody. Respondent-mother and Hailey were placed together in a maternity home. In an order entered on 1 July 2008, the trial court adjudicated Hailey dependent and kept custody of Hailey with DSS. A year later, while still a juvenile and in DSS custody, respondent-mother had a second child, T.M.A. ( Tracy ). When Tracy was one day old, DSS filed a petition alleging that she was a dependent juvenile. Tracy on the same day. DSS was given nonsecure custody of On 10 August 2009, the trial court entered an order adjudicating Tracy dependent and kept custody of Tracy with DSS. 1 At the time of Tracy s adjudication and We will refer to juveniles H.J.A. and T.M.A. by pseudonyms to protect their privacy and for ease of reading. -3disposition hearing, paternity had not been established for either juvenile. The matter came on for a permanency planning hearing on 6 January 2011. By this time, paternity had been established for Hailey, but not for Tracy. Hailey s father was incarcerated; however, DSS had been exploring providing services for him and was investigating his family members for a potential placement. In an order entered 6 January 2011, the trial court adopted a concurrent plan of reunification and adoption. ordered DSS to mother, albeit cease not addressed below. in reunification a perfectly efforts clear The trial court with manner, respondentas will be On 12 January 2011, respondent-mother filed a notice to preserve her right to appeal from the trial court s order ceasing reunification efforts, pursuant to N.C. Gen. Stat. §§ 7B-507 (c) and -1001(a)(5) (2011). On 15 April 2011 and 3 August 2011, DSS filed petitions to terminate Tracy, respondent-mother s based on the parental following rights grounds: (1) to Hailey and neglect; (2) willfully leaving the juveniles in foster care for more than twelve months without showing reasonable progress to correct the conditions that led to removal; and (3) willful failure to pay a reasonable portion of the cost of care for the juveniles. See -4N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2011). Following a hearing, the trial court entered an order on 7 February 2012 in which it found the existence of all three termination alleged against respondent-mother.2 grounds for The trial court also concluded that termination of respondent-mother s parental rights was in the juveniles best interest. Respondent-mother timely appealed from the order. II. Statutory Requirements of § 7B-907 On appeal, respondent-mother first argues that the trial court s order ceasing reasonable reunification efforts and continuing the juveniles in DSS custody failed to comply with the statutory requirements of N.C. Gen. Stat. §§ 7B-507 and 907. If a trial court decides not to return a child to her home at the end of a permanency planning hearing, the court must make written findings regarding (1) (2) 2 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; Where the juvenile s return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person The trial court also terminated the parental rights of the fathers of the juveniles, but they do not appeal. -5should be established, and if so, the rights and responsibilities which should remain with the parents; Where the juvenile s return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile s adoption; Where the juvenile s return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why; Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile; Any other criteria the court deems necessary. (3) (4) (5) (6) N.C. Gen. Stat. § 7B-907(b) (2011). While it is true that the court is not expressly required to make every finding listed, it must still make those findings that are relevant permanency plans being developed for the children. to the In re J.S., 165 N.C. App. 509, 512, 598 S.E.2d 658, 660-61 (2004). Moreover, [w]hen a trial court is required to make findings of fact, it must make the findings of fact specially. In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations omitted). [T]he trial court must, through processes of logical reasoning, based on the evidentiary facts before it, find the ultimate facts essential to support the conclusions of law. In re O.W., 164 N.C. App. 699, 702, 596 -6S.E.2d 851, 853 (2004) (quoting Harton, 156 N.C. App. at 660, 577 S.E.2d at 337). The findings must be the specific ultimate facts sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence. Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 In re (2002) (quotation marks, citation, and ellipses omitted). In the case the juveniles sub judice, the trial court should not be returned to concluded that respondent-mother, therefore the trial court was required to make the necessary written factual findings to support that conclusion. J.S., 165 N.C. App. at 512, 598 S.E.2d at 661. See In re The trial court made the following relevant factual findings: 2. [Mother] has not complied w/ drug screen requests or [domestic violence treatment]. [Mother] completed parenting education. [Mother] reports employment but [the social worker] says she has been unable to confirm employment. [Mother] reports taking her prescribed meds. . . . . 4. It is possible for the juvenile(s) to be returned home immediately or within 6 months, therefore reunification with mother or father remains the goal. . . . . 7. DSS has not made reasonable efforts to implement the permanent plan for the juvenile. -7. . . . 10. Pursuant to NCGS §7b-507, the Court specifically finds: [Mother] only efforts to reunite would be futile and would be inconsistent with the juvenile(s) health, safety, and need for a safe permanent home within a reasonable period of time. 11. At this time, the juvenile s continuation in or return to his/her home is contrary to his/her best interest[.] . . . . Additional findings of court: . . . . [Mother] lied at the last [hearing] regarding her participation in therapy. . . . [the trial court] is at a point today where he cannot trust [mother]. It appears [mother] says whatever she needs to say to move to the next step. The trial court then concluded that 4. Continuation of the juveniles(s)[sic] in or return to the home would be contrary to their best interest, health, safety and welfare. Respondent-mother contends that the trial court s factual findings are insufficient under § 7B-907. We agree. Under relevant § 7B-907(b), criteria and the issue trial court written must consider findings. the Finding 4, stating that reunification is possible, and finding 7, stating that DSS has not made reasonable efforts, conclusion continuing placement with DSS. do not support a Based on its other -8findings, such as finding 11 that return to the home is contrary to the juveniles best interest, it seems the trial court only meant to find that reunification remained possible with Hailey s father. However, as to the § 7B-907 criteria, the court did not distinguish between the two parents. We note that the confusion evident in this order arises from the fact that although the court was addressing two parents with very different situations, the court entered one order as to both parents using a form order as its basis, with some additional handwritten findings. In some places, the order notes that a particular finding addresses only one parent; in other places, provisions appear to apply to both parents, although it seems that the trial court really meant to refer to only one parent. the modifications Although the form itself is an excellent form, made and handwritten additional findings, which were apparently written as a summary by another person in the courtroom3, make it very difficult to determine exactly what the court actually found as to each separate parent. Only from 3 Many of the handwritten findings are stated as a third person narrative summary of both testimony and the court s comments. For example, paragraph 16, entitled Other Findings begins Ct. has all parties, family members, friends and agency reps. affirm prior to offering the ct. any testimony or evidence. Many findings begin with statements such as M (mother) says ¦, SW (social worker) says ¦, Ct. (court) tells M (mother) ¦, Ct. stated it would ¦ , and Ct. says he ¦. -9reading the transcript of the trial court s statements in court can we determine that the court meant to cease reunification efforts as to the mother only and not to the father, and why this is so. As this court has noted previously, a narrative summary of a witness testimony is not a finding of fact. See In re O.W., 164 N.C. App. at 702-03, 596 S.E.2d at 854. Further, although the trial court found that returning the juveniles to the home is contrary to their best interest, that finding alone is insufficient to support the conclusion not to return the juveniles home. 7B-907(b)(1) requires the trial court to trial court s N.C. Gen. Stat. § consider and make findings about [w]hether it is possible for the juvenile to be returned home immediately or within six months, and if not, why it is not in the juvenile s best interests to return home and any other relevant factor under § 7B-907(b)(1). N.C. Gen. Stat. § 7B-907(b). [T]he trial court must . . . find the essential to support the conclusions of law. N.C. App. citation at 702, omitted). 596 S.E.2d at Evidentiary 853 facts final resulting effect reached by facts In re O.W., 164 (quotation marks are subsidiary facts required to prove the ultimate facts. the ultimate those and Ultimate facts are processes of logical -10reasoning from the evidentiary facts. Appalachian Poster Advertising Co., Inc. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988) (quotation marks, citations and brackets omitted). In this case, one ultimate fact missing from the trial court s current order is a finding that it is not possible for the juveniles to be returned to their mother s home within six months and why returning the juveniles to their mother is not in their best interest, if it found that the evidence supports such a finding.4 See In re Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003) (reversing trial court for, inter alia, failure to explain why it interest to return home). of testimony which might was not in the juvenile s best The trial court recited a good deal support such a finding, but the recitation of testimony does not constitute a finding of fact. See In re O.W., 164 N.C. App. at 702-03, 596 S.E.2d at 854. Further, although referencing the Guardian Ad Litem s report or the DSS evidence 4 summary can helpfully point reviewing courts to the underlying a trial court s findings, merely We note that in the form used by the trial court, there would be room for sufficient findings under the part of finding 4 not used by the trial court, which states, It is not possible for the juvenile(s) to be returned home immediately or within 6 months nor is it in the juvenile(s) best interest to return home because: (emphasis added). -11incorporating those reports by reference without making specific findings is not sufficient. In re A.S., 190 N.C. App. 679, 694, 661 S.E.2d 313, 322 (2010). We hold that the trial court s findings here are insufficient under § 7B-907 to support its conclusion not to return the juveniles to their mother s home. However, there was sufficient evidence in the record to support proper findings as to this issue, and it appears from the trial judge s statements at the hearing that he meant to make these findings. Accordingly, we must reverse the trial court s order ceasing reunification fact. efforts and remand for additional findings of See In re J.M.D., ___ N.C. App. ___, ___, 708 S.E.2d 167, 174 (2011). In her second respondent-mother through contends fourth that the arguments trial on court terminating her parental rights to the juveniles. appeal, erred in As we must reverse and remand the order ceasing reunification efforts as to respondent-mother, we must also reverse and remand the order terminating her parental rights to the juveniles. However, given our disposition above, we will not address respondent s arguments regarding the trial court s termination order. REVERSED and REMANDED. -12Judges ELMORE and STEELMAN concur.

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