In re S.C.R
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NO. COA11-451 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: S.C.R. Appeal Watauga County No. 10 J 21 by respondent from adjudication order entered 1 December 2010 by Judge Alexander Lyerly and disposition order entered 20 January 2011 by Judge William Leavell County District Court. in Watauga Heard in the Court of Appeals 31 October 2011. Eggers, Eggers, Eggers & Eggers, by Kimberly M. Eggers and Stacy C. Eggers, IV, for petitioner-appellee Watauga County Department of Social Services. Pamela Newell for guardian ad litem. Annick Lenoir-Peek for respondent-appellant mother. HUNTER, Robert C., Judge. Respondent trial court s mother order F.W. ( respondent ) adjudicating dependent and neglected. her appeals minor from child the S.C.R. She also appeals from the disposition order granting custody of the minor child to the Watauga County Department of Social Services ( DSS ), ordering DSS to cease reunification efforts, and setting a permanent plan of adoption -2or guardianship. Because the trial court improperly incorporated the allegations from the juvenile petition as its findings of fact, we reverse and remand for further proceedings. Background On 13 May 2010, DSS filed a juvenile petition alleging dependency and supervision. neglect based on lack of proper care and The petition alleged that on 12 May 2010, DSS received a referral that respondent left the home the previous day and had not returned. the child up at school. The maternal grandmother had to pick The next day, 13 May, the child became aggressive at school, such that the school felt it was unsafe to release the child to anyone other than a custodial parent. The petition also alleged that DSS was unable to locate respondent after communicating with family members, and that no one knew respondent s whereabouts. The child s father was not a suitable option due to lack of cooperation on his case plan regarding a different child. DSS was granted non-secure custody, and the child was placed in a therapeutic foster home. An amended petition was filed on 17 June 2010 adding as a basis for neglect that the minor child was abandoned. The adjudication hearing was held on 27 September 2010. The trial court adjudicated the minor child neglected and -3dependent, and granted DSS custody in an interim disposition in the adjudication order entered 1 December 2010. At a separate disposition hearing held on 20 December 2010, the trial court granted custody efforts with to DSS, ordered respondent, and DSS to authorized cease a reunification permanent plan of guardianship or adoption. The court s disposition order was entered on 20 January 2011. Respondent appeals. Standard of Review The role of this Court in reviewing a trial court s adjudication of neglect and abuse is to determine (1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact[.] In Re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) (quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)) omitted), (2008). aff d as modified, 362 N.C. 446, (quotation marks 665 S.E.2d 54 If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary. Id. Discussion I. Adjudication A. Sufficiency of findings of fact -4Respondent first argues the findings of fact are insufficient to support an adjudication of either neglect or dependency where the trial court independent findings of fact. The North adjudicatory Carolina order failed make be in Code own that writing mandates and shall appropriate findings of fact and conclusions of law. Stat. § 7B-807(b) (2009). its an We agree. Juvenile shall to contain N.C. Gen. [T]he trial court s findings must consist of more than a recitation of the allegations contained in the juvenile petition. In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004) (citing In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)). through processes of logical [T]he trial court must, reasoning, based on the evidentiary facts before it, find the ultimate facts essential to support the conclusions of law. 156 N.C. App. 655, 660, 577 Id. (quoting In re Harton, S.E.2d 334, 337 (2003)). The findings need to be stated with sufficient specificity in order to allow meaningful appellate review. Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). Here, the trial court made the following findings adjudication: a. The Juvenile is a special needs child and Respondent Mother understands that and on -5the Court anticipates that she will provide support to mitigate these issues. b. The Court incorporates each of the factual allegations set forth in the Petition as findings of fact as if set forth herein in their entirety. c. Respondents Mother and Father were unable to provide for the proper care, supervision and discipline of the minor child and they lacked an appropriate child care arrangement. The last finding is more properly considered a conclusion of law, leaving only two findings for our evaluation. In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004) (noting that a finding of fact which is actually a conclusion of law will be treated as a conclusion of law on appeal), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005). We conclude that support the findings of fact are insufficient to an adjudication of either neglect or dependency. In its second finding if fact, the trial court incorporated the allegations from the DSS petition as its findings of fact. This it additional cannot do, findings particularly of fact which without indicate making the considered the evidence presented at the hearing. N.C. App. at 702, 596 S.E.2d at 853. explicitly held that the trial court In may sufficient trial court O.W., 164 O.W., this Court not simply recite -6allegations from the petition as its findings of fact. therefore follows that a trial court may not Id. It incorporate wholesale the allegations in the petition as a substitute for making its own findings of fact. Id.; see In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) ( [T]he trial court may not delegate its fact finding duty [and] should not broadly incorporate . . . written reports from outside sources as its findings of fact. ). DSS argues undisputed by that the allegations respondent. in Assuming, the petition arguendo, were that each allegation was undisputed and was supported by the evidence, the trial court is not released from its obligation to enter specific ultimate facts based on the evidence presented at the hearing. O.W., 164 N.C. App. at 704, 596 S.E.2d at 854. Moreover, the allegations in the petition merely set out a basic factual recitation of the events that led to the filing of the petition, such as the fact that respondent left the home on 11 May 2010 and could not be contacted by the school on 13 May 2010. The petition then stated that it was DSS s position that this current abandonment and apparent lack of stability are harmful to [the child] dealing with his behavioral needs. It was for the trial court to ultimately determine, based on the -7evidence presented respondent at the constituted hearing, abandonment whether and stability was harmful to the child. the whether actions the lack of of The trial court made no findings in this regard nor did it make findings linking any of respondent s actions to dependency or neglect. The trial court did make one additional finding of fact beyond those incorporated from the petition; however, that lone finding is judgment insufficient is to adequately allow us supported to by determine competent that the evidence. Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977). The fact that the child has special needs does not automatically render the child dependent or neglected. sum, the trial court did not satisfy the mandate to In enter findings of fact by incorporating DSS s petition and entering an additional finding that the juvenile has special needs. Consequently, we reverse the adjudication order and remand for further findings of fact. B. Dismissal of petition pertaining to respondent father Although we reverse the adjudication order, we elect to address another adjudication. when it argument raised by respondent pertaining to Respondent contends that the trial court erred dismissed the petition against the father on the -8grounds that he was not involved enumerated in the Petition. in any of the actions We agree. The purpose of abuse, neglect and dependency proceedings is for the court to determine whether the juvenile should be adjudicated as dependent. In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007). having the status of abused, neglected, or Adjudication and disposition proceedings do not involve the culpability regarding the conduct of an individual parent. Id. Thus, the trial court should not have dismissed the petition as to the father, since an adjudication of abuse, neglect, or dependency pertains to the status of the child and not to the identity of any perpetrator of abuse or neglect of the child. We caution trial courts to carefully distinguish between an adjudication proceeding, and termination of parental rights proceedings, individual conduct which focus satisfies one grounds which permit termination. on or whether more of the the parent s statutory Id. II. Disposition Since we reverse the adjudication order, the disposition order must also be reversed, issues pertaining to it. obviating our need to address In an effort to prevent repetition on -9remand, however, we choose to briefly note two of the issues raised by respondent. A. Permanent plan Respondent argues the trial court erred by adopting permanent plan at disposition without sufficient notice. a This Court has previously held 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 without the statutorily required notice for a permanency planning hearing. In re D.C., 183 N.C. App. 344, 356, 644 S.E.2d 640, 646 (2007). Here, the trial court authorized a permanent plan at the disposition hearing, seemingly without the required statutory notice to respondent. This was error and should be noted on remand. B. Visitation Respondent also challenges failing to address visitation. visitation in its disposition order for The trial court did provide for Adjudication entered on 1 December 2010. the Order & Interim Disposition Following the disposition hearing, however, the trial court s order fails to address visitation at all. Pursuant to the Juvenile Code, [a]ny dispositional order . . . under which the juvenile s placement is continued outside the home shall provide for appropriate visitation as may be in -10the best interests of the juvenile juvenile s health and safety. (2009). and consistent N.C. Gen. Stat. § with the 7B-905(c) An appropriate visitation plan must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised. In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647, 652 (2005). Here, the trial court failed to include an appropriate visitation plan in its disposition order, even though visitation was discussed at the end of the disposition hearing. Any disposition order entered on remand must address visitation, whether it is granted or not, and if it is, the requisite detail as explained above must be included. Conclusion Since the trial court erred in adopting the petition allegations as its findings of fact, we reverse the adjudication order, and the disposition order upon which it rests, and remand for further proceedings consistent with this opinion. Reversed and remanded. Judges THIGPEN and MCCULLOUGH concur.
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