In Re: B.N.H. and Z.E.H
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-447 NORTH CAROLINA COURT OF APPEALS Filed: 4 October 2011 IN THE MATTER OF: B.N.H. and Z.E.H., Minor Children Appeal by Nash County Nos. 10 JA 148-49 respondent-father from order entered 15 March 2011 by Judge Anthony W. Brown in Nash County District Court. Heard in the Court of Appeals 12 September 2011. Jayne B. Norwood, for petitioner-appellee Department of Social Services. Nash County Windy H. Rose, for respondent-appellant father. Parker, Poe, Adams & Bernstein L.L.P., by Mary Katherine H. Stukes, for guardian ad litem. CALABRIA, Judge. Respondent-father court s adjudication ( respondent ) and disposition appeals from order. The the trial mother was present for the adjudication and disposition hearing but is not a party in the appeal. We affirm. I. Background -2On or about 3 June 2010, the Nash County Department of Social Services referral ( DSS ) alleging (collectively, that received B.N.H. dependent juveniles. child ( Bailey ) children )1 the a were protective and Z.E.H. abused, that ( Zeke ) neglected, or The children were each sexually abused by multiple individuals while in the parents custody. indications services one specific individual, In spite of Billy Parker ( Parker ), acted inappropriately with the children, the parents continued to allow Parker unsupervised access to the children. When DSS intervened in the matter, the parents admitted that Parker exposed the children children with sex toys. to pornography and provided the On 30 June 2010, the children were placed with their paternal grandparents. On children 20 September were abused, 2010, DSS neglected, filed and petitions alleging dependent. At the the 6 January 2011 adjudication hearing, both parents stipulated that: (1) (2) 1 Mr. and Mrs. [ ] along with [the children] and [Parker] watched a pornographic movie involving two hermaphrodites engaging in multiple sex acts; [Parker] told the parents that he planned to get [Bailey] a vibrator for her birthday. He gave her the vibrator for her birthday in the presence of her We use pseudonyms to protect the identity of the children and for ease of reading. -3- (3) (4) (5) (6) (7) parents. The parents later took the vibrator from the child, but continued to allow her and [Zeke] to go unsupervised to [Parker s] home and to spend the night with him. The parents allowed [Zeke] to continue to go to [Parker s] home even after they became aware that [Parker] gave [Zeke] a rubber vagina which [Parker] and [the children] referred to as a pocket pussy. [Parker] told the parents that he planned to marry [Bailey]. He gave her a wedding ring. She was allowed by her parents to wear the wedding ring on a chain around her neck. Her mother admitted that she let her wear the chain around her neck with the ring on it because she, the mother, was afraid [Bailey] would lose the ring. The parents were aware that [Parker] had pornography in his home and when they asked him not to show it to [the children], he told the parents, You need to be honest with kids. It s okay for them to watch it. The parents were aware that [Parker] had a surveillance camera in several places in his home, including the bathroom. The last time the children went to the home, [Bailey] told her parents she did not want to go. [Zeke] wanted to go. The parents told the children to watch out for each other. The trial court entered an order dated 15 March 2011, concluding the children were abused, neglected, and dependent based on the parents stipulations. the trial court found In the disposition portion of the order, that further efforts to reunify the -4children with the parents would be futile and contrary to the best interests of the children. The trial court concluded that it best would be in the children s interests to have legal guardianship placed with the paternal grandparents, relieved DSS of further reunification efforts with the parents, and ordered that a permanency planning hearing be held within thirty days of the date of the hearing. Respondent appeals. II. Award of Guardianship Respondent argues that the trial court erred by concurrently awarding guardianship to the paternal grandparents, ceasing reunification disposition efforts. order and efforts relieving with DSS the of respondent further in the reunification We disagree. The juvenile code authorizes the trial court to appoint a guardian for a juvenile [i]n any case . . . when the court finds it would be in the best interests of the juvenile. Gen. Stat. § 7B-600(a) (2009). N.C. This statute permits the trial court to appoint a guardian at any time during the juvenile proceedings, including the dispositional hearing, when it finds such appointment to be in the juvenile's best interests. In re E.C., 174 N.C. App. 517, 520, 621 S.E.2d 647, 650-51 (2005). However, this Court has held that a trial court cannot award -5permanent legal guardianship of a child without a permanency planning hearing. In re D.C., C.C., 183 N.C. App. 344, 355-56, 644 S.E.2d 640, 646-47 (2007). In D.C., this Court noted that the trial court could cease reunification efforts in a dispositional order, but if this was done the court shall direct that a permanency planning hearing as required by N.C. Gen. Stat. § 7B-907 be held calendar days after the date of the hearing.... within 30 Id. at 355, 644 S.E.2d at 646 (citing N.C. Gen. Stat. § 7B-507 (2005)). The purpose develop a of plan a to permanency planning achieve safe, a hearing permanent juvenile within a reasonable period of time. Gen. Stat. § 7B-907(a) (2005)). shall home be for to the Id. (citing N.C. After a permanency planning hearing has concluded, the trial court may appoint a guardian of the person for the juvenile.... Stat. § 7B-907(c)). Id. (citing N.C. Gen. This Court recognized that N.C. Gen. Stat. §§ 7B-507 and 907 do not permit the trial court to enter a permanent plan for a juvenile during disposition and that a respondent must have statutorily required notice that the trial court would consider a permanent plan for the child. 356, 644 S.E.2d at 646-47. Id. at -6In the instant case, the trial court (1) adjudicated the children abused, neglected guardianship to reunification efforts children s the best and dependent, paternal would interests be and (2) awarded grandparents, futile (4) and (3) found contrary relieved DSS legal to of the further reunification efforts with the parents. The trial court found that it was in the children s best interests that legal guardianship be placed with the paternal grandparents. appointing the grandparents as guardians, the Before trial court determined the grandparents had cared for the children for about six months, understood guardianship, and were the legal willing ramifications to assume of assuming guardianship. The trial court then found that the grandparents were willing to assume the responsibilities of caring for the children. Accordingly, we hold that the trial court complied with N.C. Gen. Stat. § 7B-600 by awarding legal guardianship to the paternal grandparents in the disposition order. In accordance with D.C., the trial court properly ordered the permanency planning hearing was to be scheduled within thirty days. Respondent correctly contends that the trial court could not award permanent guardianship without a permanency planning hearing and notice to the parents. See D.C. at 355-56, 644 -7S.E.2d at 646-47. notice that In the instant case, respondent was not given the trial court would consider permanent guardianship because the trial court did not grant permanent guardianship. appropriate Instead, permanent the plan is court stated that guardianship. the most Furthermore, a permanency planning hearing was scheduled for 3 February 2011, a date within thirty days, to establish a permanent plan for the children. The trial court properly complied with statutory requirements before ceasing reunification efforts and granting legal guardianship to the children s paternal grandparents. Therefore, we hold that the order ceasing reunification efforts and granting legal guardianship to the children s paternal grandparents was proper. III. Reunification Respondent also contends the trial court erred in ceasing reunification efforts without making findings of fact, supported by sufficient evidence, as required by N.C. Gen. Stat. § 7B-507. We disagree. An written order ceasing finding of reunification fact addressing statutory requirements, including: efforts at shall least one include of a four -8(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; (2) A court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances as defined in G.S. 7B-101[.] N.C. Gen. Stat. § 7B-507(b) (2009). An aggravated circumstance is [a]ny circumstance attending to the commission of an act of abuse or neglect which increases its enormity or adds to its injurious consequences, including, but not limited abandonment, torture, chronic abuse, or sexual abuse. Gen. Stat. § 7B-101(2) (2009). to, N.C. [T]he trial court can only order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts. In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d (2003). In the instant case, the trial court found: Further efforts to reunify the children with the parents, in light of the total lack of judgment demonstrated by the parents in the face of numerous indicators that their children were being sexually abused by a third party would be contrary to the best interests of the children and would be futile. 134, 137 -9This finding directly addresses the first and second prongs of N.C. Gen. Stat. § 7B-507(b). As to the first prong, the court found that continued efforts for reunification would be contrary to the best interests of the children and would be futile. As to the second prong, the court found the respondents exposed the children to sexual abuse. Respondent s partial stipulation to the allegations in the petitions, including the allegation that the parents continued to allow the children to have contact with Parker in spite of his inappropriate sexual behavior, supports the trial court s findings. Accordingly, we hold that respondent s argument is overruled. IV. Conclusion The trial court did not err in ceasing reunification efforts with respondent nor in awarding legal guardianship to the children s planning paternal hearing. In grandparents ceasing until reunification the permanency efforts with respondent, the trial court made the required findings of fact in compliance with N.C. Gen. Stat. § 7B-507(b). Affirmed. Chief Judge MARTIN and Judge McGEE concur. Report per Rule 30(e). We affirm.
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