In re J.B.W

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-445 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 IN THE MATTER OF: Guilford County Nos. 10 JT 143, 144 J.B.W. & B.N.W. Appeal by respondent-mother from order entered 10 January 2013 by Judge H. Thomas Jarrell, Jr. in Guilford County District Court. Heard in the Court of Appeals 28 October 2013. Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services. Mark Hayes for respondent-appellant mother. No brief filed for guardian ad litem. HUNTER, Robert C., Judge. Respondent-mother appeals from the trial court s 10 January 2013 order terminating J.B.W. and B.N.W. her parental rights to her children Respondent-mother also seeks issuance of the writ of certiorari from this Court to review the trial court s 27 April 2012 permanency planning order which respondent-mother claims ceased reunification efforts with the juveniles. -2Respondent-mother preserved her right to appeal the order, but failed to reference the permanency planning order in her notice of appeal to this Court. In light of the fact that certiorari is available when the right to prosecute an appeal has been lost by failure to take timely action, N.C. R. App. P. 21(a)(1), and in light of respondent-mother s apparent desire to appeal the order, in our discretion, we hereby allow issuance of the writ. Because insufficient reunification we agree findings of fact efforts, we that to the trial support reverse both its the court order 27 made ceasing April 2012 permanency planning order and the 10 January 2013 termination of parental rights order, and we remand the case for further proceedings consistent with this opinion. On Social 2 February Services 2010, ( DSS ) the filed Guilford a County petition Department alleging that of the juveniles were neglected and dependent, based on, inter alia, respondent-mother s homelessness, mental illness, lack of cooperation with the investigation, and lack of a plan of care for the children. juveniles. DSS was given nonsecure custody of the In an order entered on 23 April 2010, the trial court adjudicated the juveniles neglected and dependent. The trial court maintained custody with DSS and ordered respondent- -3mother to enter into a case plan with DSS and comply with its terms. In a permanency planning order entered on 27 April 2012, the trial court changed the permanent plan for the juveniles to adoption and ordered DSS to proceed with the filing of a petition to terminate the parents parental rights within 60 days. On 22 May 2012, DSS filed a petition to terminate both parents parental rights to the juveniles. As to respondent- mother, DSS alleged the following grounds for termination: (1) neglect; (2) willfully leaving the juveniles in foster care for more than twelve months without showing reasonable progress in correcting the conditions that led to removal; (3) willful failure to pay a reasonable portion of the cost of care for the juveniles; and (4) dependency. See N.C. Gen. Stat. § 7B- 1111(a)(1)-(3), (6) (2011). The trial court later dismissed the petition as to the juveniles father, and filed a new petition to terminate his parental rights on 8 November 2012. Following a hearing, the trial court entered an order on 10 January 2013 in which it found the existence of all four grounds for termination alleged against respondent-mother. court also concluded that termination of The trial respondent-mother s -4parental rights was in the juveniles interest.1 best Respondent-mother timely appealed from the order. In her second issue on appeal, respondent-mother argues that the trial court erred in changing the permanent plan to adoption and effectively ceasing reunification efforts without making findings 507(b)(1). of fact required by N.C. Gen. Stat. § 7B Because this issue is dispositive of the matter, we address it first. DSS disputes respondent-mother s claim that the 27 April 2012 permanency planning order ceased reunification efforts. DSS argues that because the order did not contain a finding ceasing reunification efforts, respondent-mother does not have a right to appeal the order pursuant to N.C. Gen. Stat. § 7B1001(a)(5). Therefore, DSS argues, we should not address her claim regarding mother argues reunification the that permanency the efforts, order, planning while implicitly order. not did Respondent- explicitly so by ceasing changing the permanent plan to adoption and ordering the filing of a petition to terminate parental rights. We agree with respondent-mother. When a trial court enters [a]n order placing or continuing the 1 placement The petition proceedings. of a juvenile against the in the father custody was not or part placement of these -5responsibility of a county department of social services, the court s order is required to, inter alia, contain findings as to whether [DSS] should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined or determines under subsection (b) of this section required or shall cease[.] that such efforts N.C. Gen. Stat. § are not 7B-507(a)(3) (2011). In the instant case, the trial court found that custody of the juveniles should remain with DSS, concluded that the permanent plan for the children should be changed to adoption, and ordered DSS to proceed with filing a petition to terminate the parental rights of the parents within 60 days. Since the court ordered custody to remain with DSS, it was required by N.C. Gen. efforts at Stat. § 7B-507(a) reunification to should either continue find that reasonable or make additional findings required by N.C. Gen. Stat. § 7B-507(b) that reasonable reunification efforts should cease. Contrary to DSS s assertion, It did neither. the lack of a finding regarding cessation of reunification efforts does not preclude this Court s review of the issue. In In re J.N.S., 207 N.C. App. 670, 681, 704 S.E.2d 511, 518 (2010), we held that where a -6trial court failed to make any findings regarding reasonable efforts at reunification, the trial court s directive to DSS to file a petition to terminate respondent-mother s parental rights implicitly also reunification. directed DSS to cease reasonable efforts at We explained: Although the trial court failed to make any findings regarding reasonable efforts at reunification, the language of the disposition order indicates that the trial court effectively determined that reunification efforts between respondentmother and the minor children should cease when it ordered DSS to file a petition to terminate respondent-mother s parental rights. As our Supreme Court has stated, [t]he cessation of reunification efforts is a natural and appropriate result of a court s order initiating a termination of parental rights. The Brake Court stressed that [i]t would be a vain effort, at best, for a court to enter an order that had the effect of directing DSS to undertake to terminate the family unit while at the same time ordering that it continue its efforts to reunite the family. In fact, such an order would tend to be both internally inconsistent and selfcontradictory. Id. at 680-81, 704 S.E.2d at 518 (quoting In re Brake, 347 N.C. 339, 341, 493 S.E.2d 418, 420 (1997)) (internal citations omitted); see also In re A.P.W., ___ N.C. App. ___, ___, 741 -7S.E.2d 388, 390 (2013) (finding that the trial court implicitly ceased reunification efforts where it changed the permanent plan for the juveniles from reunification to adoption and ordered DSS to proceed with filing a petition to terminate parental rights). Like J.N.S. and A.P.W., the trial court in the instant case directed DSS to file a petition to terminate parental rights. Moreover, the trial court here changed the permanent plan to adoption, and respondent-mother preserved her right to appeal pursuant to N.C. Gen. Stat. § 7B-507(c). These findings indicate that the trial court intended to cease reunification efforts. The language used in the trial court s previous permanency planning orders also supports this position. Prior to the 27 April 2012 order, the permanent plan for the juveniles had been reunification with a concurrent plan of adoption. And, in the vast specifically majority ordered DSS to reunification. not mention of the orders, continue the with trial court reasonable efforts towards By way of contrast, the 27 April 2012 order did the continuation of reunification efforts, in addition to changing the permanent plan and ordering the filing of a termination petition. the trial court s 27 Based on the foregoing, we hold that April 2012 order implicitly ceased -8reunification efforts. We also agree that the trial court erred by failing to make necessary findings of fact pursuant to N.C. Gen. Stat. § 7B507(b). In order to cease reunification efforts with a parent, the trial court must comply with N.C. Gen. Stat. § 7B-507(b), which provides the following, in pertinent part: In any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether 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). We have held that N.C. Gen. Stat. § 7B 507(b)(1) requires the trial court to ultimately find . . . that: (1) attempted reunification efforts would be futile, or (2) reunification would be inconsistent with the juvenile s health, safety, and need for a safe, permanent home within a reasonable period of time. In re I.R.C., ___ N.C. App. ___, ___, 714 S.E.2d 495, 498 (2011). and remanded the trial court s order In I.R.C., we reversed ceasing reunification -9efforts where it failed to make the ultimate finding required by N.C. Gen. Stat. § 7B-507(b). Id. at ___, 714 S.E.2d at 499; see A.P.W., ___ N.C. App. at ___, 741 S.E.2d at 392 (reversing and remanding the trial court s order implicitly ceasing reunification efforts where the trial court failed to make a finding pursuant to N.C. Gen. Stat. § 7B-507(b)). trial court s order does not contain any of Here, the the findings required by this statute. Therefore, we must reverse the trial court s permanency 27 implicitly order April ceased 2012 reunification terminating planning efforts, respondent-mother s and order, the parental which subsequent rights, and remand this case to the trial court for further proceedings. Respondent-mother s pertain to the parental rights. trial remaining court s two arguments subsequent on termination appeal of her Because we are reversing the order terminating respondent-mother s parental rights, we need not address these arguments. Though we do not address the issue of the guardian ad litem, we suggest the trial court hold a hearing to determine whether the guardian ad litem is appropriate. Reversed and remanded. Judges CALABRIA and HUNTER, JR. concur. Report per Rule 30(e).

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