In re A.S

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-147 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 IN THE MATTER OF: A.S. D.T. M.S. H.H. M.L. Currituck County Nos. 11 JA 07 11 Appeal by respondent mother from orders entered 11 October 2012 and 6 November 2012 by Judge Eula E. Reid in Currituck County District Court. Heard in the Court of Appeals 5 August 2013. Courtney S. Hull, for petitioner appellee Currituck County Department of Social Services. Richard Croutharmel, for respondent appellant mother. MARTIN, Chief Judge. Respondent mother ( mother ) planning and review orders. court: appeals from two permanency In the first order, the district (1) relieved the Currituck County Department of Social Services ( DSS ) from further efforts toward reunification as to minor children A.S. ( Ashley ), M.S. ( Missy ), H.H. ( Hilary ), -2and M.L. ( Miley );1 (2) changed the permanent plan for these children from reunification to guardianship with a relative; and (3) appointed guardians for Hilary and Miley. appointed mother s half-sister ( Ms. H. ) as The second order a guardian for Ashley and Missy, while returning to mother s custody the minor child D.T. ( Dorothy ). Mother preserved her right to appeal the cessation of reunification efforts and gave timely notice of appeal from both orders. During the period at issue in these proceedings, mother was married to Dorothy s father ( Mr. T. ), with whom she had a second child ( Monique ). Dorothy and Monique, along with Ashley, Missy, Hilary, and Miley resided with mother and Mr. T., who served as their primary caretaker while mother worked fulltime. The family has a prior DSS history, dating back to 2005, which includes inappropriate discipline and domestic violence in mother s home. Previous DSS involvement resulted in two reports that required mandatory services, one report that ended with services recommended, and four reports that were closed following the investigation/assessment. The instant proceedings began on 24 October 2010 when DSS received a Child Protective Services ( CPS ) report that Mr. T. 1 Pseudonyms are used to protect the children s privacy and for ease of reading. -3had injured seven-year-old Miley by hitting her with a belt and knocking her to the ground. Miley sustained a large, dark, bruise with a scrape on her chin and welts down her back. removed her from grandparents the without home and placed initiating a her court with her DSS paternal proceeding. After another CPS report on 31 January 2011, DSS interviewed threeyear-old Missy at her daycare and found that she had two circular red bruises to the right side of her face between her eye and hairline. Missy disclosed that Mr. T. had popped her on the right side of her head for stuffing food in her mouth. During an interview with a DSS social worker at her school, sixyear-old Hilary stated that Mr. T. beat Missy the previous evening while mother was at work, and that mother did not respond to the marks on [Missy] s face when she arrived home. Hilary also claimed that Mr. T. beats her all the time with a belt or his hand. On 1 February 2011, DSS obtained non-secure custody of Ashley, Missy, Hilary, Miley, and Dorothy, and filed petitions alleging juveniles. Mr. T., that they were abused, neglected, and dependent Mother and the children s four fathers, including stipulated adjudications of to the neglect petitions based allegations thereon. Despite and to their -4stipulations, mother and Mr. T. refused to participate in any services recommended to them by DSS. Moreover, mother continued to physically allow Mr. children, and T. to failed supervise to and recognize the discipline improper methods the of discipline utilized by Mr. T. Beginning 22 July 2011, Ashley, Missy, and Dorothy were returned to Mr. T. and mother s home on a trial basis. Hilary joined her sisters in Mr. T. and mother s home on 17 August 2011, but Miley remained in the care of her paternal grandparents due to her fear of Mr. T. Despite DSS s efforts towards reunification, a review order entered by the district court on 30 August 2011, and filed on 17 October 2011, found that communication between DSS and mother was no longer reciprocal, since early August 2011. DSS was forced to make multiple contacts with mother before she would perform tasks for the children. Additionally, mother had failed to communicate information to DSS, and had misrepresented other facts. Further, DSS began to question mother s level of parental vigilance and ability to protect her children from future instances of inappropriate discipline by Mr. T. because Mr. T. stated that he takes no responsibility for the injuries he caused to the children. The court allowed the trial -5placement to continue, but ordered frequent announced and unannounced visitation by DSS to ensure the safety and wellbeing of the children. DSS received another CPS report on 16 November 2011, alleging that Missy was afraid to go home after school, that Hilary and Ashley were showing physical aggression toward Missy, and that mother and Mr. T. were again using a belt to discipline the children. Based on the report, the observed decline in the children s well-being, and an inability to monitor the children in the home due to mother s lack of cooperation, DSS terminated Missy, Hilary, 2011. and Hilary Ashley s was placed trial in placements the home on of 17 November her paternal grandmother; Ashley and Missy were placed with their maternal aunt, Ms. H. Thereafter, on 8 December 2011, DSS filed a motion for a permanency planning and review hearing, asking to be relieved of further efforts toward reunification. DSS alleged that although Mr. T. had attended parenting classes, and mother was compliant with her beginning service other plan services by at completing Smart parenting Start, and classes by and attending visitation with the children, DSS was concerned that the skills mother learned were not being displayed during visitation, and -6thus, there remained concern about mother s ability to care for her children going forward. The district court received evidence on three days between 9 March and 21 May 2012 and entered an order on 31 May 2012, which was filed on 11 October 2012. The order ceased reunification efforts as to Ashley, Missy, Hilary, and Miley, and changed their permanent plan from reunification guardianship with a relative or other suitable person. to The order awarded guardianship of Miley to her paternal grandparents and awarded guardianship of Hilary to her paternal grandmother. Guardianship with Ms. H. was established as the permanent plan for Ashley and Missy. The court continued Dorothy s trial placement with mother and Mr. T. In a subsequent review order entered 24 August 2012 and filed 6 November 2012, the district court awarded guardianship of Ashley and Missy to Ms. H. and returned Dorothy to mother s custody. _________________________ On appeal, mother discretion in ceasing permanent plan for claims the reunification Miley, Missy, reunification to guardianship. district court abused its efforts and changing the Hilary, and Ashley from Although mother suggests that -7the court ceased reunification efforts as to Ashley and Missy in its 6 November 2012 order, the record shows that the court ceased reunification efforts and changed the permanent plan for the four children in the order entered 11 October 2012. We therefore review the court s decision to relieve DSS of further efforts based on the contents of this order. 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). At the disposition stage, the trial court solely considers the best interests of the child. In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002) (citing In re Dexter, 147 N.C. App. 110, 114, 553 S.E.2d 922, 924 (2001), disc. review denied, 356 N.C. 163, 568 S.E.2d 608, appeal dismissed, 356 N.C. 163, 568 S.E.2d denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003)). 609, cert. [F]acts found by the trial court are binding absent a showing of an abuse of discretion. In re Dexter, 147 N.C. App. at 114, 553 S.E.2d at 924-25 (citing Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d -8499, 503 (2001)). As this Court has clarified, [w]here the trial court s findings are supported by competent evidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary. In re K.S., 183 N.C. App. 315, 323, 646 S.E.2d 541, 545 (2007) (quoting In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)). Furthermore, to the extent that mother does not challenge certain findings, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Mother first argues that the district court failed to make the ultimate findings necessary to allow meaningful appellate review of its orders. Under cessation N.C.G.S. of We disagree. § 7B-507(b), reasonable efforts the toward court may order reunification if the the court makes written findings of fact that . . . [s]uch 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) (2011); see also In re I.R.C., __ N.C. App. __, __, 714 S.E.2d 495, 497 98 (2011) (identifying the ultimate findings of fact required by N.C.G.S. § 7B-507(b)(1)). In this case, the trial court properly made this ultimate -9finding in Finding of Fact 85 and Conclusion of Law 3 of the 11 October 2012 order. We reject mother s argument that the court was also required to make an ultimate finding that [she] and/or Mr. T. neglected the children during the trial placement. Unlike an adjudication of grounds for termination of parental rights under N.C.G.S. § 7B-1111(a)(1), see, e.g., In re Young, 346 N.C. 244, 247 48, 485 S.E.2d 612, 614 15 (1997), an order ceasing reunification efforts under N.C.G.S. § 7B-507(b) does not require a finding of continuing neglect. Mother next argues that the district court s findings do not support cease. are its conclusion that reunification efforts should Contrary to mother s assertions, the court s findings not mere regurgitations of testimony but affirmative statements as to the conduct of mother, Mr. T., and others; the behavior and disclosures of the minor children; the observations of DSS social workers, the children s guardian ad litem ( GAL ), and various service providers; and the inferences drawn by the court in its capacity as finder of fact. court credited the testimony of certain The fact that the witnesses or quoted language from the DSS report is a far cry from the act of simply reciting what each witness testified in lieu of finding the facts. See In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d -10193, 195 n.1 (1984); see also In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007) ( [DSS] reports constitute competent evidence, and the trial court properly relied upon them in reaching its finding of fact. ). Mother further argues that the court failed to draw a rational link between its evidentiary findings and its ultimate finding that further reunification efforts would be futile or inconsistent with the need for a safe permanent placement within a reasonable time. We disagree. The court s findings reflect Miley s ongoing anxiety and fear of returning to mother s home; the deterioration of Missy, Hilary, and Ashley s well-being during the trial placement; the inability of DSS to effectively monitor the trial placement due to mother s lack of communication and refusal to cooperate with DSS or the GAL; the substantiation of an injurious environment by DSS based on the CPS report forensic received interviews on 16 with November Ashley, 2011, Missy, based and in part Hilary; on the improvement in the three children s demeanor and behavior after the trial placement was terminated; and mother s continued unwillingness to accept responsibility for the adjudication of neglect or the termination of the trial placement. While mother focuses on the court s failure to resolve whether Mr. T. engaged -11in corporal punishment during the trial placement as alleged in the 16 November 2011 CPS report, both social worker Hurd and the CPS investigator made clear during their testimony that DSS s substantiation of injurious environment was not dependent on such a finding. Equally unavailing is mother s claim that the court s approval of Dorothy and Monique s ongoing presence in her home is irreconcilable efforts as to with the its older decision to children. cease Though reunification Dorothy was adjudicated neglected in June 2011, the record reflects that she receive[d] a great deal of attention and affection, which was somewhat disproportionate to that of the other children and was treated daughters. differently In its 11 in the October home 2012 than Mr. T. s step- order, the court found Dorothy to be a healthy, happy baby who has a bond with both of her parents and seems to be at no risk of harm[.] Likewise, Monique was not yet born when DSS filed the juvenile petitions in February 2011, and was not deemed by DSS to be at risk of harm. Rather than arbitrariness or irrationality, the court s disposition bespeaks a thoughtful assessment exception to of each child s the court s individual circumstances. Mother also takes certain of -12enumerated findings of fact, or portions thereof. In Finding of Fact 77h, she casts the finding of a significant threat of danger to these children as based on the mere speculation of the social workers who believed that Missy s behavior problems at school were a result of Missy s return to mother s home, and mother and Mr. T. had resumed inappropriate discipline of the children. However, testimony given at trial provides support for Finding of Fact 77h. DSS described how Missy exhibited self-destructive behaviors such as screaming, crying, kicking, and urinating on herself multiple times a day. Furthermore, the children home expressed their fear of returning and Missy recounted how mommy and daddy beat them with the belt during the trial placement. Therefore, Finding of Fact 77h is supported by competent evidence, and it is binding on appeal, even if there is evidence which would support a finding to the contrary. See In re J.S., 165 N.C. App. at 511, 598 S.E.2d at 660. Additionally, the 11 October 2012 order contains extensive findings, unchallenged by mother, evincing the risk posed to the four girls by a return to mother s home specifically, Findings of Fact 26, 28, 31 33, 39 45, 71, and 74a. challenged these Since mother has not findings, they are binding on appeal. See -13Koufman, 330 N.C at 97, 408 S.E.2d at 731. Mother takes issue with Findings of Fact 77, 79a, and 84 regarding her lack of cooperation and failure to communicate with DSS. Rather than deny the abundant evidence supporting these findings, she argues that the district court failed to link her conduct to the welfare of her children. She also cites the notify lack of a court order requiring her significant events affecting the children. to DSS of Even a casual review of the 11 October 2012 order shows a clear line between mother s obduracy and DSS s inability to monitor the trial placement and ensure that services. the children were receiving the appropriate Moreover, notwithstanding the court s approval of a trial placement in mother s home, DSS at all times retained legal custody of the children with placement discretion and . . . the authority to provide and authorize necessary medical, dental, psychological, psychiatric, educational and assessment services. The suggestion that mother was free to obstruct or ignore DSS during the trial placement is without merit. Also without merit is mother s objection to the portion of Findings of Fact 77i and 85 stating that (1) her behaviors remain largely unchanged[;] (2) she was incapable of applying the parenting skills she learned over the long term and was -14unable to protect the children; and (3) further reunification efforts would clearly be futile[.] 2 The findings were supported by Hurd s testimony and written report, as well as by mother s history of involvement with DSS, her continued refusal to acknowledge any misconduct by Mr. T. or herself, and the termination of the trial placement in November 2011. They also represent reasonable conclusions drawn by the court based on the additional uncontested findings it included in Paragraph 85, to wit: To date, [mother] has refused to cooperate with efforts to assess family needs, and the household is unpredictable. Trial placement disrupted. [Mother] has not demonstrated the ability to protect the children in the past under similar circumstances and does not believe the disclosures made by the children. [She] does not display concern for the experience of [the] children; does not believe that Mr. T. would cause harm to the children; and does not consider the children to be believable if they make disclosure about home life. The court drew the same conclusions in Paragraph 77i. The court further found no reason to believe that . . . [mother s] level of cooperation with [DSS] remained pre-occupied problems and 2 with inappropriate will increase, blaming other behaviors, inasmuch people had for as she [her] demonstrate[d] Although mother also cites Finding of Fact 78, this finding simply recounts DSS s recommendations to the court. -15little insight[,] and [was] simply not moving forward. Mother points out that she requirements of her case plan. efforts, program finding listed that in she the and case services . . . through completed all the The court acknowledged these Mr. plan; . . . had T. and had completed voluntarily Smart Start. every continued However, mere completion of the services prescribed in a case plan does not preclude the ceasing of reunification efforts if those services do not yield positive changes in the parent. See In re Y.Y.E.T., 205 N.C. App. 120, 131, 695 S.E.2d 517, 524 (2010) (explaining that a parent s case plan is not just a checklist and that parents must demonstrate acknowledgement and understanding of why the juvenile entered DSS custody as well as changed behaviors ), disc. review denied, 364 N.C. 434, 703 S.E.2d 150 (2010); see also In re T.R.M., 208 N.C. App. 160, 163 64, 702 S.E.2d 108, 110 11 (2010) (upholding cessation of reunification efforts pursuant to N.C.G.S. § 7B-507(b)(1), despite findings that the mother has been generally compliant and concerned about her son s welfare and has gone through the motions of complying with the DSS service agreements including parenting classes ). Notwithstanding the services utilized by mother, the -16children s behavior and emotional well-being deteriorated in her care during the trial placement and immediately improved upon their removal testified by to the DSS. Although skills multiple developed by service mother providers during their programs, none could attest to the day-to-day experiences of the children in her home. Both DSS and the GAL reported that it was all but impossible to monitor the children in mother s home due to her noncooperation. a time for parents Hurd explained that trial placements are to demonstrate skills acquisitions that they ve learned through different resources that they ve been paired with. We just really didn t see that in this case. In light of mother s testimony that she had stopped trying to make [DSS] happy, that [n]obody can tell [her] what to do, and that she had not done anything improper, we cannot say that the court s inferences about the futility of further reunification efforts were unreasonable. Mother next argues that her separation from Mr. T. and his departure from her home ended any concern that inappropriate discipline of the children would continue. We disagree. Findings of Fact 54 and 77e f reflect that mother advised DSS soon after the termination of the trial placement that she was separating from Mr. T. and that she had driven him to -17Elizabeth City. Mr. T. was separating. However, a few days later, she advised DSS that returning to the home, and they would not be Then, on 28 December 2011, mother notified DSS that the separation would proceed and that Mr. T. was moving to New Jersey. Yet, when social worker Hurd made an unannounced visit to the home on 9 January 2012, Mr. T. answered the door and refused to allow her inside. Mother testified that Mr. T. had just stopped in for Dorothy s birthday, that they had signed a separation agreement, and that he had not lived in the home since December 2011. However, the notarized copy of their separation agreement introduced at the hearing was dated 2 April 2012, almost four months later. Additionally, during her testimony, mother made it clear that she did not believe it necessary to protect the children from Mr. T., but took the action in order to placate DSS. She also T., blamed DSS for the end of her marriage with Mr. testifying, we didn t have any problems in our marriage before this involvement with DSS. no indication that their Under these circumstances, there is purported arrangement would hold. Thus, we are not persuaded that mother s separation from Mr. T. invalidates the district court s decision to cease reunification efforts. -18Finally, mother challenges the court s Findings of Fact 82 and 83 that it was in the best interests of the four older children to remain in a placement outside the home, and that their best interests were no longer served by the permanent plan of reunification. support of its Having decision reviewed to cease the court s findings in reunification efforts, we further find no abuse of discretion in the court s assessment of the best interests of the children. See In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007) (reviewing best interest determinations for abuse of discretion). The court s conclusions are consistent with the recommendations of DSS and the GAL. We note that Finding of Fact 104 addresses each of the relevant permanency planning factors in N.C.G.S. § 7B-907(b). Mother s argument is overruled. Mother also challenges the district court s entry of a permanent plan of guardianship with a relative for Miley, Missy, Hilary, and Ashley and its appointment grandparents and maternal aunt as guardians. of the paternal Insofar as mother objects to the changing of the permanent plan from reunification to guardianship in the 11 October 2012 order, the permanency planning statute expressly authorizes the court to appoint a guardian of the person for the juvenile pursuant to G.S. 7B-600 -19or make any disposition authorized by G.S. 7B-903 after making findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time. N.C. Gen. Stat. § 7B-907(c) (2011). A district court has broad discretion to determine a juvenile s best interests, in re D.S.A., 181 N.C. App. at 720, 641 S.E.2d at 22, and an authorized absent disposition clear based evidence unsupported by reason. that thereon will not the decision be was disturbed manifestly In re N.B., 167 N.C. App. 305, 311, 605 S.E.2d 488, 492 (2004) (citing In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)). 7B-903(a) priority prioritizes that placements extends N.C.G.S. § 7B-906. to with subsequent We note that N.C.G.S. § a family review member, hearings a under See In re L.L., 172 N.C. App. 689, 703, 616 S.E.2d 392, 400 (2005). We find no abuse of the court s discretion in identifying guardianship with a relative as the best plan of care to achieve a safe, permanent home for the minor child[ren] within a reasonable period of time. To the contrary, the court s conclusion followed naturally from its detailed account of the case history, including Miley s traumatic experience in mother s home, the behavioral and emotional decline sustained by Missy, -20Hilary, and Ashley during the unsuccessful trial placement, and each child s marked improvement in the care of their prospective guardians. Both DSS and the GAL also concurred in this change to the permanent plan. We further discern no abuse of the court s discretion in the appointing children. of the respective guardians for the minor The court s findings and the hearing evidence reflect that Miley s grandparents, Missy s grandmother, and Ms. H. were all willing and able to provide loving, safe, and permanent homes for the children and understood the responsibilities of guardianship. See N.C. Gen. Stat. § 7B-600(c) (2011). accounts, children the were happy and doing well in By all these placements and were receiving all necessary services. The district court did not abuse its discretion in ceasing reunification reunification efforts, to changing guardianship with guardians for the minor children. the relatives, and plan from appointing Accordingly, we affirm the court s orders. Affirmed. Judges STEELMAN and DILLON concur. Report per Rule 30(e). permanent

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