In re E.G

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-538 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 IN THE MATTER OF: Mecklenburg County No. 12 JA 378 E.G., Jr. Appeal by respondent-father from order entered 27 February 2013 by Judge Elizabeth Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 17 September 2013. Senior Associate Attorney Twyla Hollingsworth-Richardson for Mecklenburg County Department of Social Services, Youth & Family Services, petitioner-appellee. Doughton Rich Blancato guardian ad litem. PLLC Hunt Law Group, P.C. respondent-appellant. by by William James A. A. Hunt Blancato for for father, STROUD, Judge. Respondent-father adjudicating E.G., Jr. appeals from ( Edgar ) the abused trial and court s neglected.1 order We reverse and remand the trial court s order for further findings of fact. 1 We will refer to the juvenile by pseudonym to protect his privacy and for ease of reading. -2After spending the night in respondent-father s care, fourmonth old Edgar presented at Levine Children s Hospital on 14 June 2012 with multiple skull fractures and a subacute fracture to his posterior left rib. Dr. Lauren Piper, Edgar s attending physician, testified that Edgar s injuries were consistent with inflicted trauma and not accidental in nature. When interviewed by police, respondent-father gave several different stories to explain Respondent-father improperly. how Edgar eventually sustained admitted the he injuries. handled Edgar He was subsequently charged with felony child abuse. On 15 June 2012, Mecklenburg County Department of Social Services, Youth and Family Services (YFS) filed a juvenile petition alleging Edgar was an abused and neglected juvenile. The matter came on for hearing at the 26-28 session of District Court, Mecklenburg County. November 2012 By order entered 27 February 2013, Edgar was adjudicated abused and neglected. The trial court ordered that custody of Edgar remain with YFS. The trial court father and Edgar. also ordered no contact between respondent- Respondent-father appeals. Respondent-father contends the trial court did not have jurisdiction over the adjudicatory and dispositional hearings -3because the juvenile petition was not signed and verified as required by law. Specifically, respondent-father contends the petition signed County was not Department of by the Social director Services, of nor the was Mecklenburg it properly verified since the director did not personally appear before the notary notary. and sign or acknowledge Respondent-father signing acknowledges her name before the that the petition is signed and verified by LaDell Josey, but asserts [t]here is no indication from the petition who LaDell Josey is, beyond being somehow affiliated with Youth and Family Services. We find the case of In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007) instructive in the present case. In D.D.F., this Court stated: Juvenile petitions must be drawn by the director of DSS, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing. N.C. Gen. Stat. § 7B-101(10) provides that the word director as used in N.C. Gen. Stat. § 7B-403 includes the director s representative as authorized in G.S. 108A14. N.C. Gen. Stat. § 108A-14(a)(11) gives the director the duty and responsibility to assess reports of child abuse and neglect and to take appropriate action to protect such children pursuant to the Child Abuse Reporting Law, Article 3 of Chapter 7B of the General Statutes. N.C. Gen. Stat. § 108A-14(b) provides that the director may delegate to one or more members of his staff the authority to act as his representative. -4The director may limit the delegated authority of his representative to specific tasks or areas of expertise. In light of the role of social services caseworkers as specifically designated by statute, where the record demonstrates that a DSS caseworker is assigned to the child s case and there is no indication whatsoever that the caseworker was not an authorized representative of the director or that she was acting outside of her authority, the DSS caseworker is an authorized representative of the director for purposes of filing a petition under N.C. Gen. Stat. § 7B-403. Id. at 392-93, 654 S.E.2d at 3-4 (citations, quotation marks, and brackets omitted). This Court found that the record disclosed that the social worker who signed the petition was assigned to the juvenile s case at its inception, and that the social under worker N.C. was Gen. charged Stat. § with the duty and 108A-14(a)(11) to responsibility investigate the allegations of neglect of [the child] and to take appropriate action to protect such [child] pursuant to Reporting Law, Article 3 of Chapter 7B. the Child Abuse Id. at 393, 654 S.E.2d at 4 (quoting N.C. Gen. Stat. § 108A-14(a)(11)). The Court noted that action to protect the juvenile included filing a petition for adjudication. the petition did not state Id. that The Court held the fact that the social worker was an authorized representative of the director did not create a jurisdictional defect. Id. -5Likewise in this case, the record discloses that LaDell Josey was Edgar s social worker. The box labeled Relationship to Above Named Child on the Affidavit as to Status of Minor Child form indicates LaDell Josey is Edgar s social worker. Furthermore, the 9 August 2012 Initial (7-Day) Order also indicates that LaDell Josey is the social worker in this case. As the social worker in this case, Josey had a duty to take action to protect Edgar and it was proper for Josey to sign the juvenile petition. See In re D.D.F., 187 N.C. App. at 392-93, 654 S.E.2d at 3-4; accord In re Dj.L., 184 N.C. App. 76, 79-80, 646 S.E.2d 134, 137 (2007) (holding that the petition was not invalid where the juvenile s social worker signed the petition and listed her address as Youth and Family Services ). Accordingly, this argument is overruled. Respondent-father next contends the trial court violated N.C. Gen. Stat. § 7B-905(c) by failing to adopt an appropriate visitation plan without making necessary findings. We agree and remand for additional findings. Any dispositional order under which a juvenile is removed from the custody of a parent . . . shall provide for appropriate visitation as may be in the best interests of the juvenile and -6consistent with the juvenile s health and safety. N.C. Gen. Stat. § 7B-905(c) (2011). If the court finds that the parent has by conduct forfeited the right of visitation or if the court finds that the exercise of the right of visitation would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, the child; but the court may not delegate this authority to the custodian. If the trial court does not make such findings, 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. In re M.H.B., 192 N.C. App. 258, 267, 664 S.E.2d 583, 588 (2008) (citations, quotation marks, and brackets omitted). [E]ven if the trial court inappropriate in determines a that particular case visitation or that a would be parent has forfeited his or her right to visitation, it must still address that issue in its dispositional order and either adopt a visitation plan or specifically determine that such a plan would be inappropriate in light of the specific facts under consideration. In re K.C., 199 N.C. App. 557, 562, 681 S.E.2d 559, 563 (2009) (emphasis added). Although the trial court clearly decided not to award respondent-father visitation, it simply failed to make a finding -7that such visitation would not be in Edgar s best interest or that respondent-father had forfeited his right to visitation. This finding support the visitation. was an trial ultimate court s finding decision to of fact deny necessary to respondent-father See id. There was overwhelming evidence in the record to support such a finding, but [w]hen a trial court is required to make findings of fact, it Harton, 156 N.C. App. (citations omitted). must find 655, 660, the 577 facts specially. S.E.2d 334, 337 In re (2003) This Court cannot simply imply findings into the dispositional order, even if the trial court made such findings in a later permanency planning order. Additionally, there was no evidence that respondent-father specifically waived visitation or invited this error. Cf. In re K.C., 199 N.C. App. at 562-63, 681 S.E.2d at 563-64 (holding that the respondentmother invited the trial court s failure to make findings as to visitation when she refused to work with DSS on reunification and specifically refused visitation when it was offered).2 Therefore, as required by N.C. Gen. Stat. § 7B-905(c), we must 2 Appellees argue that there was no evidence that respondentfather requested visitation at the hearing, but as they acknowledge, his attorney s closing argument was inaudible and the content of the argument was not recorded. Therefore, we do not know for certain what, if anything, respondent-father s attorney said about visitation. -8reverse the trial court s order and remand to make a finding of fact as to whether visitation with respondent-father is in the best interest of the children, whether he has forfeited visitation, or if the trial court does not make either of these findings to arrange a visitation schedule. See In re M.H.B., 192 N.C. App. at 267, 664 S.E.2d at 588; N.C. Gen. Stat. § 7B905(c). For the foregoing reasons, the reversed and remanded. REVERSED and REMANDED. Judges MCGEE and BRYANT concur. Report per Rule 30(e). trial court s order is

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