In re T.H
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NO. COA13-433
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
IN THE MATTER OF:
Rowan County
Nos. 03 JA 275-78, 06 JA 250-51
T.H., T.H., A.S.,
J.S., M.W., A.W.
Appeal by respondent from adjudication order entered 3 May
2012 by Judge Charlie Brown and disposition
order
entered 9
January 2013 by Judge Lillian B. Jordan in Rowan County District
Court.
Heard in the Court of Appeals 8 October 2013.
Cynthia Dry for petitioner-appellee Rowan County Department
of Social Services.
Jeffrey L. Miller for respondent-appellant mother.
Administrative Office of the Courts, by Associate Counsel
Deana K. Fleming, for guardian ad litem.
BRYANT, Judge.
Where respondent-mother fails to establish an immediate and
direct interest in four juveniles — Tracy, Todd, Mary, and Ann1 —
following the surrender of her parental rights as to them in a
prior
1
proceeding,
we
affirm
the
trial
court’s
ruling
that
Pseudonyms are used throughout this opinion to protect the
juveniles’ privacy and for ease of reading.
-2respondent-mother
may
not
intervene
in
dispositional hearing as a matter of right.
the
juveniles’
Where respondent-
mother does not come within any category of persons afforded a
right to appeal a juvenile matter arising from Subchapter I of
Chapter 7B, as such appeal relates to the four juveniles adopted
from
respondent-mother,
appeal.
as
to
respondent-mother
lacks
standing
to
Accordingly, we must dismiss respondent-mother’s appeal
those
four
juveniles.
Because
there
was
sufficient
evidence to support the trial court’s findings of fact and those
findings support the trial court’s conclusion that Ashley and
John
were
dependent,
we
affirm
that
determination.
Where
respondent-mother was on notice that the trial court would enter
a
permanent
participated
plan
in
for
the
her
two
children,
dispositional
hearing
respondent-mother
to
establish
a
permanent plan, and did not object to the lack of notice, the
trial court did not err in establishing a permanent plan.
the
trial
court’s
unchallenged
findings
of
fact
Where
support
its
conclusion that reunification efforts would be inconsistent with
the juvenile’s health, safety, and need for a permanent home, we
affirm the trial court’s conclusion that reunification efforts
are not required at this time.
Where the trial court failed to
establish an appropriate schedule for respondent-mother to visit
-3her children, we remand the matter to the trial court for entry
of such a schedule.
Respondent-mother Claire Wilson (“Claire”)2, the biological
mother of the juveniles, appeals from orders: (1) adjudicating
the juveniles dependent; (2) denying her motion to intervene;
(3) ordering a permanent plan of adoption for Tracy, Todd, Mary,
and
Ann;
and
(4)
ordering
a
permanent
guardianship for
Ashley and John.
affirm
remand
in
part,
in
part,
plan
of
custody
or
After careful review, we
and
dismiss
in
part
Claire
Wilson’s appeal.
On 27 January 2012, the Rowan County Department of Social
Services (“DSS”) filed a petition alleging that Tracy, Todd,
Ashley,
John,
Mary,
and
Ann
were
stated that on 27 January 2012,
dependent
Janice Lake
juveniles.
(“Janice”),
maternal grandmother of the juveniles, was murdered.
DSS
the
Janice had
adopted Tracy, Todd, Mary, and Ann in 2009 and in 2004 had been
granted
custody
of
Ashley
and
John.
In
its
petition,
DSS
alleged that there were no appropriate family members to care
for the children and subsequently, took custody of the juveniles
by non-secure custody order.
On 2 February 2012, the trial
court appointed the juveniles a guardian ad litem.
2
Pseudonyms are used to protect the identity of respondentmother, her adult relatives and caretakers of the children.
-4An adjudicatory hearing was held on 29 March 2012.
The
trial court adjudicated the children “dependent juveniles” and
ordered that legal custody, as well as authority over placement
and visitation, remain with DSS.
Additionally, the trial court
stated the following:
It is in the best interests of the juveniles
for the temporary permanent plan of [John
and Ashley] to be custody or guardianship
with a relative or other court approved
caretaker. The temporary permanent plan for
[Ann, Mary, Todd, and Tracy] should be
adoption.
On
2
October
2012,
several
of
the
juveniles’
relatives
filed a joint motion to intervene in the juvenile proceedings.
The relatives stated that they were willing and able to provide
care for the juveniles and that it was in the best interests of
the juveniles to be placed with family members.
On 8 October
2012, Mr. and Mrs. Alfred, who were the court approved placement
providers
intervene.
“permitted
for
all
Mr.
to
of
and
the
juveniles,
Mrs.
intervene
Alfred
because
also
argued
it
filed
that
would
a
motion
to
they
should
be
be
in
the
best
interests of all the children to have [Mr. and Mrs. Alfred]
involved as parties in their case, since [Mr. and Mrs. Alfred]
[] have developed such strong bonds with the children and are
providing their daily care.”
-5On 10 October 2012, Claire filed a motion to intervene.
The motion related solely to Tracy, Todd, Mary, and Ann, the
four juveniles adopted by Janice.
biological
mother
of
the
Claire noted that she was the
juveniles
and
legally
their
since the children had been adopted by Claire’s mother.
sister
Claire
denied the material allegations made by Mr. and Mrs. Alfred in
their
motion
to
intervene
and
requested
that
the
juvenile
petition be terminated, the juveniles placed with her, or in the
alternative,
members
of
her
family,
and
that
Mr.
and
Mrs.
Alfred’s motion to intervene be denied.
A
dispositional
November 2012.
hearing
was
conducted
on
8,
9,
and
26
The trial court denied all motions to intervene.
The court found that no relative was able to provide proper care
and supervision for the juveniles and that placement with “any
of the identified relatives” was contrary to the best interests
of the juveniles.
The trial court specifically found that it
was contrary to the best interests of the juveniles for them to
return
to
Clarie’s
home.
The
trial
court
made
findings
regarding Todd’s repeated attempts to harm himself and others,
as well as his auditory and visual hallucinations, and placed
him in a residential psychiatric facility, with placement with
Mr. and Mrs. Alfred if possible once his treatment was complete.
-6The remaining juveniles were placed with Mr. and Mrs. Alfred.
The court set the permanent plan for Tracy, Todd, Mary and Ann
as
adoption
custody
or
and
the
permanent
guardianship
with
plan
Mr.
for
and
Ashley
Mrs.
and
Alfred.
John
as
Claire
appeals.
_________________________________
On appeal, Claire raises the following issues: whether (I)
the trial court erred in denying her motion to intervene; (II)
there
was
sufficient
grounds
to
support
the
conclusion
the
children were dependent juveniles; (III) there were sufficient
grounds to cease reunification efforts; (IV) the trial court
erred in establishing a permanent plan for the juveniles; and
(V) the written order failed to establish a proper visitation
plan.
I. Motion to Intervene
Claire first argues that the trial court erred by denying
her motion to intervene as a matter of right, pursuant to our
Rules of Civil Procedure, Rule 24(a)(2).
We disagree.
“This Court reviews a trial court's decision granting or
denying a motion to intervene pursuant to N.C. Gen. Stat. § 1A–
1, Rule 24(a)(2), on a de novo basis.”
Bailey & Assoc., Inc. v.
-7Wilmington Bd. of Adjustment, 202 N.C. App. 177, 185, 689 S.E.2d
576, 583 (2010) (citation omitted).
As to whether our Juvenile Code, codified in Chapter 7B of
our
North
Subchapter
Carolina
I,
General
“Abuse,
Statutes,
Neglect,
and
specifically,
Dependency,”
address
intervention, the briefs submitted to us reference only section
7B-1103, which allows a person or agency to “intervene in a
pending abuse, neglect, or dependency proceeding for the purpose
of filing a motion to terminate parental rights.”
Stat. ' 7B-1103(b) (2011) (emphasis added).3
statute
within
intervention.
this
subchapter
Therefore,
we
look
We find no other
specifically
to
our
N.C. Gen.
referencing
Rules
of
Civil
Procedure for authority governing intervention.
The General Assembly has set out the
judicial procedure to be used in juvenile
proceedings in Chapter 7B of the General
Statutes.
This Court has previously held
that [t]he Rules of Civil Procedure, while
they are not to be ignored, are not
3
We note that effective 1 October 2013, within Subchapter I,
“Abuse, Neglect, Dependency,” section 7B-401.1 states that
“[e]xcept as provided in G.S. 7B-1103(b), the court shall not
allow intervention by a person who is not the juvenile's parent,
guardian, custodian, or caretaker but may allow intervention by
another county department of social services that has an
interest in the proceeding. This section shall not prohibit the
court from consolidating a juvenile proceeding with a civil
action or claim for custody pursuant to G.S. 7B-200.” N.C. Gen.
Stat. § 7B-401.1 (effective 1 October 2013).
-8superimposed upon these hearings. Instead,
the Rules of Civil Procedure apply only when
they do not conflict with the Juvenile Code
and only to the extent that the Rules
advance the purposes of the legislature as
expressed in the Juvenile Code.
In re L.O.K., 174 N.C. App. 426, 431—32, 621 S.E.2d 236, 240
(2005) (citations and internal quotation omitted).
Rule
24
intervention,
intervention.
Rule
24(a)(2),
of
both
our
Rules
of
intervention
Civil
of
Procedure
right
and
governs
permissive
See N.C. Gen. Stat. ' 1A-1, Rule 24 (2011).
“Intervention
of
right,”
states,
in
pertinent
part, that
[u]pon timely application anyone shall be
permitted to intervene in an action . . . .
When
the
applicant
claims
an
interest
relating to the property or transaction
which is the subject of the action and he is
so situated that the disposition of the
action may as a practical matter impair or
impede his ability to protect that interest,
unless
the
applicant's
interest
is
adequately represented by existing parties.
N.C.G.S. ' 1A-1, Rule 24(a)(2).
Permissive intervention pursuant to Rule 24(b)(2), states,
in part, that
anyone may be permitted to intervene in an
action.
When an applicant's claim or defense and the
main action have a question of law or fact
-9in common. When a party to an action relies
for ground of claim or defense upon any
statute or executive order administered by a
federal or State governmental officer or
agency
or
upon
any
regulation,
order,
requirement, or agreement issued or made
pursuant to the statute or executive order,
such
officer
or
agency
upon
timely
application may be permitted to intervene in
the action.
N.C.G.S. ' 1A-1, Rule 24(b)(2).
Statute 7B-100, entitled “Purpose,” of our Juvenile Code,
Subchapter I, states that Subchapter I “shall be interpreted and
construed so as to implement the following purposes and policies
. . . [t]o develop a disposition in each juvenile case that
reflects consideration of the facts, the needs and limitations
of
the
juvenile,
and
the
strengths
and
weaknesses
family.”
N.C. Gen. Stat. § 7B-100(2) (2011).
provision
to
permit
intervention
pursuant
of
the
We construe this
to
Rule
24.
See
generally, In re Baby Boy Scearce, 81 N.C. App. 531, 541, 345
S.E.2d
404,
permissive
410
(1986)
intervention
(where
under
this
Chapter
Court,
7A,
when
the
considering
predecessor
to
Chapter 7B, sanctioned the use of permissive intervention where
it determined that intervention “was necessary to elicit full
and
accurate
information
pertaining
child.” (citation omitted)).
to
the
welfare
of
the
-10In its 9 January 2011 disposition order, the trial court
acknowledges
that
dispositional
prior
hearing,
to
it
receiving
considered
including the motion filed by Claire.
that
“[n]o
person
seeking
to
evidence
motions
to
as
to
the
intervene,
The trial court concluded
intervene
may
be
allowed
to
intervene as of right.”
This Court has stated that where no other
statute confers an unconditional right to
intervene, the interest of a third party
seeking to intervene as a matter of right
under N.C.G.S. § 1A–1, Rule 24(a)
must be of such direct and immediate
character that he will either gain or
lose by the direct operation and effect
of the judgment.... [sic] One whose
interest in the matter in litigation is
not a direct or substantial interest,
but is an indirect, inconsequential, or
a contingent one cannot claim the right
to defend.
Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 459,
515
S.E.2d
675,
682—83
(1999)
(citations
and
quotations
omitted).
In her brief to this Court, Claire contends that
[t]o the extent [I] [am] considered only as
a legal ‘sister’ of [the] four children, [I]
was entitled to intervene as a party in the
proceedings as a matter of right so that [I]
could adequately present and represent the
otherwise
unrepresented
family
member
interest and arguments for maintaining a
family placement, family relationship, and
-11potential for a family reunification with
the four juveniles . . . and so as to assure
[I] may have a proper legal voice in this
appeal and any subsequent juvenile court
proceedings.
[I] [have] a direct interest in the family
relationships with each of the juveniles
which can be protected and represented
adequately only if [I] (or some family
member) is allowed to participate as a full
party to the juvenile proceedings. The
adoption of the juveniles by strangers to
the family would forever sever the family
ties and legal relationships of [me] and
[my] relatives with the children.
Initially, we note Claire’s acknowledgment that as to four
of the children subject to this action, she has no parental
rights.
In an unchallenged finding of fact, the trial court
stated that Janice adopted Tracy, Todd, Mary, and Ann in 2009.
See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991) (“Where no exception is taken to a finding of fact by the
trial
court,
the
finding
and
is
is
presumed
binding
on
to
be
competent
evidence
omitted).
supported
appeal.”)
Pursuant to N.C. Gen. Stat. § 48-1-106,
[a]
decree
of
adoption
severs
the
relationship of parent and child between the
individual adopted and that individual’s
biological or previous adoptive parents.
After the entry of a decree of adoption, the
former parents are relieved of all legal
duties and obligations due from them to the
adoptee, . . . and the former parents are
by
(citations
-12divested of all rights with respect to the
adoptee.
N.C. Gen. Stat. § 48-1-106(c) (2011).
rights
to
Tracy,
Todd,
Mary,
and
Thus, Claire’s parental
Ann
adopted by Janice — have been severed.
—
the
four
juveniles
Claire has also been
divested of all rights and relieved of all legal duties and
obligations with respect to these four juveniles.
See id.
Furthermore, Claire’s motion to intervene fails to provide
any indication that she has the authority to defend or assert
“the
otherwise
unrepresented
family
member
interest
[or
can
present] . . . arguments for maintaining a family placement,
family relationship, and potential for a family reunification
with the four juveniles[.]”
See Virmani, 350 N.C. at 459, 515
S.E.2d at 683 (holding that a party cannot directly intervene
where its interest is at best indirect).
We find that Claire’s
motion to intervene failed to assert a claim or defense that can
act as a basis for intervening in this action.
Rules
of
Civil
Procedure,
Rule
24,
“[a]
Pursuant to our
person
desiring
to
intervene shall serve a motion to intervene upon all parties
affected thereby.
The motion shall state the grounds therefor
and shall be accompanied by a pleading setting forth the claim
or defense for which intervention is sought.” N.C. Gen. Stat. '
1A-1, Rule 24(c) (2011).
-13Given that Claire’s parental rights to the four adopted
juveniles have
been severed,
her
motion to intervene in the
juvenile’s dispositional hearing failed to present any direct or
immediate interest such that she was entitled to intervene in
the juvenile’s dispositional hearing as a matter of right.
See
N.C.G.S. ' 1A-1, Rule 24(a)(2); Virmani, 350 N.C. at 459, 515
S.E.2d at 682-83.
Moreover, Claire’s motion was defective for
failure to include a pleading asserting a claim or defense as
required by Rule 24(c).
See Kahan v. Longiotti, 45 N.C. App.
367, 371, 263 S.E.2d 345, 348 (1980) (“[A] motion to intervene .
. . must be accompanied by a proposed pleading.”), overruled on
other grounds by Love v. Moore, 305 N.C. 575, 291 S.E.2d 141
(1982).
Accordingly, we affirm the trial court’s denial of
Claire’s motion to intervene as a matter of right.
We also note that in addition to its conclusion denying
intervention
Claire’s
as
motion
intervention.
a
to
matter
of
intervene
right,
on
the
the
trial
basis
court
of
denied
permissive
In considering the use of permissive intervention
as authorized under the juvenile code as codified in Chapter 7A,
the predecessor to the juvenile code as codified in Chapter 7B,
this Court has sanctioned its use where it “was necessary to
elicit full and accurate information pertaining to the welfare
-14of the child.”
In re Baby Boy Scearce, 81 N.C. App. at 541, 345
S.E.2d at 410 (citation omitted).
In Baby Boy Scearce, the foster parents sought to intervene
in an action in which a biological father sought physical and
legal custody of a child.
The trial court concluded that the
foster parents’ right to intervene “derives from the child’s
right to have his or her best interests protected.”
Id.
Other
factors considered by this Court included that intervention “was
necessary to elicit full and accurate information pertaining to
the
welfare
of
the
child,”
id.
at
541,
345
S.E.2d
at
410
(citation omitted), and that “intervention by the foster parents
would
not
‘prejudice
original parties.’”
the
adjudication
of
the
rights
of
the
Id.
Nevertheless, while Claire did not challenge on appeal the
trial
court’s
ruling
that
permissive
intervention
should
be
denied as a matter of law, we do not believe the trial court
abused its discretion in denying Claire’s motion to intervene on
the basis of permissive intervention.
While the trial court’s order denied Claire’s motion to
intervene
and
participate
as
a
party
to
the
dispositional
proceedings, we acknowledge the trial court’s findings regarding
the
participation
of
the
juvenile’s
family
members
in
-15determining
their
individual
best
interests:
“from
the
representations of counsel and the presence of all interested
relatives
in
the
courtroom,
the
court
is
comfortable
that
sufficient evidence regarding all possible relative placements
will be offered for the court’s consideration in determining the
best interests of each of the children”; and “[t]he proposed
intervenors’ interests will not be adversely affected by denying
their motions to intervene since they may participate indirectly
in the proceedings through their status as witnesses in the
disposition and suggested relative placements.”
Standing
We next consider a motion to dismiss Claire’s appeal as to
the four juveniles to whom Claire has surrendered her parental
rights.
that
Before the Court, the guardian ad litem (“GAL”) asserts
Claire
lacks
standing
to
bring
relation to Tracy, Todd, Mary and Ann.
forward
her
appeal
in
We agree, and grant the
GAL’s motion to dismiss Claire’s appeal as to Tracy, Todd, Mary
and Ann.
A juvenile matter based on Subchapter I, “Abuse, Neglect,
Dependency” of General Statutes Chapter 7B may be appealed by
the following parties:
-16(1) A juvenile acting through the juvenile’s
guardian ad litem previously appointed under
G.S. 7B-601.
(2) A juvenile for whom no guardian ad litem
has been appointed under G.S. 7B-601. If
such an appeal is made, the court shall
appoint a guardian ad litem pursuant to G.S.
1A-1, Rule 17 for the juvenile for the
purposes of that appeal.
(3) A county department of social services.
(4) A parent,
G.S. 7B-600 or
Statutes, or a
7B-101 who is a
a guardian appointed under
Chapter 35A of the General
custodian as defined in G.S.
nonprevailing party.
(5) Any party that sought but failed
obtain termination of parental rights.
to
N.C. Gen. Stat. § 7B-1002 (2011); see N.C. Gen. Stat. ' 7B-1001
(2011) (Right to appeal); see also In re A.P., 165 N.C. App.
841, 600 S.E.2d 9 (2004) (holding that a step-grandfather had no
standing
to
appeal
even
though
his
name
was
listed
on
the
petition seeking to adjudicate the child neglected where the
step-grandfather was not a caregiver, custodian, or parent of
the child).
The trial court’s finding of fact that Janice adopted four
of Claire’s biological children — Tracy, Todd, Mary and Ann — in
2009 is uncontested.
See Koufman, 330 N.C. at 97, 408 S.E.2d at
731 (“Where no exception is taken to a finding of fact by the
trial
court,
the
finding
is
presumed
to
be
supported
by
-17competent
evidence
and
is
binding
omitted).
As a consequence, Claire’s parental rights to those
four juveniles have been severed.
on
appeal.”)
(citations
See N.C.G.S. § 48-1-106 (“[a]
decree of adoption severs the relationship of parent and child
between the individual adopted and that individual’s biological
or previous adoptive parents.”).
Claire was not appointed by
the court as a guardian for the four adopted juveniles following
Janice’s death and no findings of fact support a conclusion that
Claire acted as a custodian for the juveniles.
See N.C. Gen.
Stat. § 7B-101(8) (2011) (A “Custodian” is defined as “[t]he
person
or
agency
that
has
been
awarded
legal
custody
of
a
juvenile by a court or a person, other than parents or legal
guardian, who has assumed the status and obligation of a parent
without
being
awarded
the
legal
custody
of
a
juvenile
by
a
court.); see also In re T.B., 200 N.C. App. 739, 685 S.E.2d 529
(2009) (holding that the respondent was not a custodian to the
child where the record reflected no order awarding either legal
or physical custody of the juvenile to the respondent and no
evidence supported a finding that the respondent stood in loco
parentis in relation to the child).
Because Claire does not come within any category of persons
afforded a
statutory
right to appeal
from a juvenile matter
-18pursuant
to
N.C.G.S.
''
7B-1001
and
7B-1002,
Claire
lacks
standing to appeal the trial court’s 3 May 2012 adjudication
order and 9 January 2013 juvenile disposition order as those
orders pertain to Tracy, Todd, Mary, and Ann — the four children
Claire surrendered to adoption.
See N.C.G.S. § 7B-1002.
As a
result, we address Claire’s arguments arising from her appeal of
the 3 May 2012 adjudication order and 9 January 2013 juvenile
disposition order only as those orders relate to
Ashley and
John.
II.
Adjudication of Dependency
Claire argues that the trial court erred by adjudicating
Ashley and John dependent juveniles within the meaning of N.C.
Gen.
Stat.
§
7B-101.
Claire
contends
that
there
was
insufficient evidence presented at the adjudicatory hearing to
meet the clear and convincing standard necessary to conclude the
juveniles were dependent.
We disagree.
In all actions tried upon the facts
without a jury ... [sic] the court shall
find
the
facts
specifically
and
state
separately its conclusions of law thereon[.]
. . . The resulting findings of fact must be
sufficiently specific to enable an appellate
court to review the decision and test the
correctness of the judgment.
In re J.S., 165 N.C. App. 509, 510—11, 598 S.E.2d 658, 660
(2004) (citations and quotations omitted).
“The role of this
-19Court in reviewing a trial court’s adjudication of [dependency]
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.,
(2007)
185
N.C.
App.
337,
343,
(citation and quotation omitted).
648
S.E.2d
519,
523
“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.
(citation omitted).
“Dependent juvenile” is defined in N.C. Gen. Stat. § 7B101(9) as:
[a] juvenile in need of assistance or
placement
because
the
juvenile
has
no
parent, guardian, or custodian responsible
for the juvenile’s care or supervision or
whose parent, guardian, or custodian is
unable
to
provide
for
the
care
or
supervision
and
lacks
an
appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-101(9) (2011).
“In determining whether a
juvenile is dependent, the trial court must address both (1) the
parent’s ability to provide care or supervision, and (2) the
availability
arrangements.”
to
the
parent
of
alternative
child
care
In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d
644, 648 (2007) (citation and quotation omitted).
“Findings of
fact addressing both prongs must be made before a juvenile may
-20be adjudicated as dependent, and the court’s failure to make
these
findings
will
result
in
reversal
of
the
court.”
Id.
(citation omitted).
In the instant case, it is not disputed that the legal
custodian of the juveniles, Janice,
court
further
found
that
“[a]t
is deceased.
the
time
that
The trial
the
juvenile
petition was filed, there were no appropriate family members
immediately available to care for the children long-term.”
This
finding is supported by the uncontradicted testimony of Kris
Tucker, a DSS social worker, who testified at the adjudicatory
hearing that there were no appropriate family members to care
for the juveniles.
Tucker further testified that although the
juveniles were in the care of an aunt and uncle, Mr. and Mrs.
Chase, “they are not able to provide ongoing care and are not
interested
in
establishing
permanence
for
[the
juveniles].”
Claire did not present herself as a potential caregiver at the
adjudicatory
presented.
hearing,
nor
were
any
alternative
caregivers
Accordingly, we conclude that the trial court did
not err by adjudicating Ashley and John as dependent juveniles.
III. Permanent Plan
Claire next argues that the trial court erred when, in the
adjudicatory order, it made findings of fact and conclusions of
-21law regarding a “temporary permanent plan” for the juveniles.
However,
we
conclude
that
any
alleged
error
was
rendered
harmless by the trial court’s entry of a permanent plan in its
dispositional order.
S.E.2d ___
See In re J.P., ___ N.C. App. ___, ___
(19 November 2013) (COA13-35-2).
Claire additionally argues that the trial court erred by
entering a permanent plan for the juveniles at disposition when
she did not have the statutorily required notice that the trial
court would consider a permanent plan.
We disagree.
Claire was provided notice that the trial court intended to
consider a permanent plan for the juveniles at disposition when
it made a “temporary permanent plan” at adjudication.
See id.
Thus, as in In re J.P., Claire and her attorney attended and
participated in the trial court’s dispositional hearing and did
not object to the lack of formal notice.
Id. at ___, ___ S.E.2d
at ___ (citing In re J.S., 165 N.C. App. 509, 514, 598 S.E.2d
658, 662 (2004) (where this Court stated that a party waives its
right to notice under section 7B–907(a) by attending the hearing
in which the permanent plan is created, participating in the
hearing,
and
failing
to
object
to
the
lack
of
notice).
Accordingly, we conclude that Claire waived any objection to
lack of formal notice of a hearing on a permanent plan when she
-22made
a
pre-trial
motion
to
intervene
in
the
dispositional
hearing, made arguments before the trial court, was allowed to
present witnesses regarding the best interest of the child, and
failed to object to the lack of formal notice.
IV.
Claire
next
Dispositional Conclusions
challenges
conclusions of law.
several
of
the
trial
court’s
Claire does not challenge any of the trial
court’s findings of fact and, accordingly, they are binding on
appeal.
review
See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
is
therefore
limited
to
whether
the
trial
Our
court’s
findings of fact support its conclusions of law and disposition.
In
re
Shepard,
162
N.C.
App.
215,
221-22,
591
S.E.2d
1,
6
(2004).
Claire first challenges the trial court’s conclusions of
law 2 and 7.
2. No relative of the juveniles is able to
provide proper care and supervision of all
the juveniles in a safe home.
Placement
with any of the identified relatives is
contrary to the best interests of the
juveniles.
. . . .
7.
The [DSS] has made reasonable and
diligent
efforts
to
secure
relative
placements for the children.
The three
relatives identified were not completely
able to provide for the children.
-23Pursuant to N.C. Gen. Stat. § 7B-903(a)(2)(c), when placing
a juvenile outside of the home,
[i]n placing a juvenile in out-of-home care
under this section, the court shall first
consider whether a relative of the juvenile
is willing and able to provide proper care
and supervision of the juvenile in a safe
home. If the court finds that the relative
is willing and able to provide proper care
and supervision in a safe home, then the
court shall order placement of the juvenile
with the relative unless the court finds
that the placement is contrary to the best
interests of the juvenile.
N.C.
Gen.
Stat.
recognized
that
§
7B-903(a)(2)(c)
our
statutes
(2011).
give
a
This
Court
preference,
has
where
appropriate, to relative placements over non-relative, out-ofhome placements.
In re L.L., 172 N.C. App. 689, 701, 616 S.E.2d
392, 399 (2005).
or
non-relative
juvenile,
the
However, before determining whether relative
placement
statute
is
in
first
the
requires
best
the
interest
trial
of
court
the
to
determine whether the relative in question is willing and able
to provide proper care and supervision in a safe home.
Gen. Stat. § 7B-903(a)(2)(c).
only for abuse of discretion.
N.C.
We review a dispositional order
In re Pittman, 149 N.C. App. 756,
766, 561 S.E.2d 560, 567 (2002).
Here, the trial court found as fact:
-248. On March 29, 2012, [Ann, Mary and John]
were moved from the home of [Mr. and Mrs.
Chase] at the request of the placement.
[Mr. and Mrs. Chase] indicated to [DSS] that
they thought the placement would be a
temporary one and that they could not
provide for the children long term.
At the
time placement was needed . . . the only
identified and approved placement was with .
. . the younger children’s school principal,
and her fiancé [Mr. Alfred]. Placement with
[Kimberly Chase, an aunt] was not approved
at the time because a fire in her home in
late February 2012 had left her without a
home, because she had several identified
medical issues and medications, and because
she had fallen asleep on two occasions while
talking with Social Worker Hardison about
the children.
The [DSS] was concerned that
[Kimberly Chase] could not provide the
supervision
needed
for
the
children.
[Claire Wilson] was unable to be approved
for placement of the children because she
was
under
investigation
by
the
[DSS]
regarding the two children in her home
following positive drug screens for cocaine
on February 16, 2012 and March 8, 2012.
9. On May 3, 2012, [Tracy, Todd and Ashley]
were moved from [Lisa Chase’s, an aunt] home
because of concerns identified by the [DSS].
These concerns included a lack of sufficient
space in the home for the children, the fact
that [Lisa Chase] was out of compliance with
Rowan
Housing
Authority
regulations
by
having the children in the home, issues with
supervision,
excessive
tardiness
and
absences in school, reports from the school
. . . that the children would come to school
hungry, [Lisa Chase’s] tendency to minimize
the
school
behavioral
problems
of
the
children, and [Lisa Chase’s] transporting of
the children in her car without having them
properly restrained in safety seats. Social
-25Worker Hardison witnessed the children in
the car not properly restrained on three
occasions.
[Tracy, Todd, and Ashley] were
placed with their siblings in the home of
[Mr. and Mrs. Alfred].
The children were
happy and excited to be placed together in
one home again.
. . . .
23.
On May 17, 2012, the [DSS] received a
request from [Claire Wilson’s attorney] to
consider
certain
relatives
and
family
friends for placement of the juveniles.
Since the juveniles were all placed together
by this time, keeping them together was an
important goal of [DSS] in its decisionmaking.
The [DSS] made diligent efforts to
study and become familiar with each option
presented to it for placement of the
children.
. . . .
27. [Lisa Chase] continued to be ruled out
as a placement option because of the
concerns that led to the removal of the
three youngest children from her home on May
3, 2012. . . . [Terra Roberts (Godmother to
the juveniles)] was ruled out as a placement
because of her inability to provide proper
[care and] supervision of the children and
because of inadequate space for the children
in her home.
28.
[Mr. and Mrs. Miles], who live in
Guilford
County,
submitted
to
a
preplacement assessment by Guilford Count DSS.
The assessment was positive, and [they were]
willing to have all six children placed with
them.
The children were not moved to
[their] home for several reasons.
One,
several of the children indicated that they
did not know [them] and did not want to move
-26to Greensboro. Two, . . . [a]lthough a past
investigation
of
neglect
was
not
substantiated, it was of some concern to the
[DSS] that [Mrs. Miles] told Social Worker
Williams on September 5, 2012 that she had
no past history with any DSS.
Three, the
[DSS] has been unable to ascertain after
speaking with [Mr. and Mrs. Miles] and other
family members exactly how [Mr. Miles] is
related to the children.
[Mr. Miles] could
only indicate that he was somehow related on
“his father’s side.”
A few other kinship
options . . . were individually ruled out as
placement options for failing to return the
kinship assessment packets mailed to them by
the [DSS] or because they were 19 and 20
years old, too young to take on the
responsibility of raising six children.
29.
The most positive relative placement
option
for
the
children
[was
Jenetta
Thomas]. [Jenetta Thomas is] the children’s
second cousin. . . .
[Jenetta Thomas]
stated that she is willing to provide a home
for all of the children, but at the time
Social Worker Williams visited her she could
accommodate only two or three additional
children in her home. . . . [Ashley, Mary,
and
John]
were
asked
about
possible
placement with [Jenetta Thomas], and they
indicated that they do not know [her] well
and do not want to live with her in a
different county “out in the country.”
30. [Betsy Monroe, Jenetta Thomas’ sister].
. . was found by [DSS to be] willing and
able to take two or three of the children
based on space limitations. . . . The
children
only
have
an
acquaintance
relationship with [Betsy Miller] at this
time.
-27It is apparent from the trial court’s exhaustive findings
of
fact
that
the
no
trial
placements
but
potentially
available,
court
suitable
the
interests
option
court
to
considered
was
the
relative
available;
considered
place
several
it
not
juveniles
where
in
the
with
the
juveniles’
best
relative.
Thus, we conclude the trial court did not abuse its
discretion by placing the juveniles in a non-relative placement.
Accordingly, we hold that the trial court did not err in making
conclusions of law 2 and 7.
Claire next challenges conclusions of law 5 and 6:
5.
Efforts to eliminate the need for
placement
of
the
juveniles
would
be
inconsistent with the juveniles’ health,
safety, and need for a safe permanent home
within a reasonable period of time.
6.
Reunification efforts are not required
in this matter . . . [as to John and Ashley
because] significant safety issues make
reunification
with
a
parent
within
a
reasonable time unlikely.
[Claire], their
mother, has not asked to have the children
live with her.
Pursuant to N.C. Gen. Stat. § 7B-507,
[i]n 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
-28shall cease if the court
findings of fact that:
makes
written
(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).
Here, the trial court found as fact:
17. All of the children have been diagnosed
with PTSD and anxiety disorder. . . [Ashley]
has low cognitive functioning and a language
disorder. All of the children . . . receive
weekly counseling services for trauma-based
disorders.
18.
Therapist Jill [Hill] specializes in
working with children who have experienced
trauma.
She has been seeing [Ann, John,
Ashley,
and
Tracy]
weekly
since
early
September 2012. Ms. [Hill] has been working
with the children on trust-building and
establishing a rapport with them.
Ms.
[Hill] feels that all the children need
ongoing counseling based on the traumatic
death of [Janice Lake] and the past history
of multiple placements, chaos, separation
from
siblings,
and
instability.
Ms.
[Hill]’s focus with the children is on
stability and helping them to feel safe.
[Ann,
John,
Ashley,
and
Tracy]
have
expressed to Ms. [Hill] that they like where
they are living, they feel safe there, they
want to stay together, and they want to stay
with [Mr. and Mrs. Alfred].
The children
speak of each other often during therapy
with Ms. [Hill] and appear to have a strong
connection with each other.
Ms. [Hill] is
concerned that moving the children at this
-29point would be very disruptive to their
pathway of feeling safe.
The children’s
issues cannot be fixed quickly, and their
nervous systems are very fragile.
. . . .
24.
[Claire Wilson] continued to be ruled
out as a placement because of her positive
drug screens and her failure to follow up
with drug and mental health treatment.
25. Also relevant to the inquiry of whether
or not [Claire Wilson] may be an appropriate
long-term placement for the children is the
prior neglect and DSS history of the
children.
[Claire Wilson] has a total of
ten children, with only two of those
children in her care.
Her oldest two
children [] were in foster care due to
neglect
on
two
separate
occasions
and
eventually were adopted by their maternal
great-grandmother . . . in 2009. Custody of
[John and Ashley] was granted to [Janice
Lake],
their
maternal
grandmother,
in
2004[;]
[Mary and Ann] were in foster care
from 2003 until 2005 and from 2006 until
2009
pursuant
to
petitions
filed
and
adjudicated for neglect by [Claire Wilson].
[Todd and Tracy] were in the legal custody
of the [DSS] due to neglect by [Claire
Wilson] from 2006 to 2009.
[Mary, Ann,
Todd, and Tracy] were adopted by their
maternal grandmother, [Janice Lake], in
2009.
[Claire Wilson] is not requesting
that the court consider placing the six
children with her. She is in treatment with
Daymark Recovery Services[.]
We conclude the uncontested findings of fact support the
trial court’s conclusions that reunification efforts would be
inconsistent with the juveniles’ health, safety and need for a
-30permanent home within a reasonable period of time and were not
required.
Accordingly, we hold that the trial court did not err
in making conclusions of law 5 and 6.
VI. Visitation
Claire next argues that the trial court erred regarding its
visitation plan for Ashley and John because it failed to specify
the time, place, and conditions under which visitation may be
exercised.
In re E.C., 174 N.C. App. 517, 521—23, 621 S.E.2d
647, 651—52 (2005) (holding that a trial court must include “an
appropriate visitation plan in its dispositional order”).
We
agree.
North Carolina General Statutes, section 7B-905(c) provides
that any dispositional order which leaves the minor child in a
placement
“outside
the
home
shall
provide
for
appropriate
visitation as may be in the best interests of the juvenile and
consistent with the juvenile’s health and safety.”
Stat. § 7B-905(c) (2011).
This Court has stated that:
[i]n the absence of findings that the parent
has forfeited their right to visitation or
that it is in the child’s best interest to
deny visitation “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.”
N.C. Gen.
-31In re E.C., 174 N.C. App. 517, 522-23, 621 S.E.2d 647, 652
(2005) (citation omitted).
Here,
the
trial
court
made
no
finding
that
Claire
had
forfeited her right to visitation or that it was in the best
interests of Ashley or John to deny visitation.
Therefore, the
trial court was required to provide a plan containing a minimum
outline of visitation, such as the time, place, and conditions
under
which
provided
visitation
the
may
following
be
exercised.
order
governing
Id.
The
court
visitation:
“The
juveniles shall visit regularly with their siblings who live
with [Ms. Wilson] and [Ms. Chase], [Kimberly Chase], and [Claire
Wilson].
These visits shall begin as soon as possible and shall
be supervised by a caregiver selected by the [DSS], including
some visits at [Ms. Chase]’s home if possible.”
The order does
not contain the “minimum outline” required by In re E.C.
As
such, the plan constitutes an impermissible delegation of the
court’s authority under N.C.G.S. § 7B-905.
See In re Stancil,
10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971) (discussing
how
the
function,
award
of
cannot
visitation
be
rights,
delegated
to
which
a
is
child’s
a
judicial
custodian).
Therefore, we remand for entry of an order of visitation which
clearly
defines
and
establishes
“the
time,
place[,]
and
-32conditions”
rights.
under
which
Claire
may
exercise
her
visitation
In re E.C., 174 N.C. App. at 522—23, 621 S.E.2d at 652.
Affirmed in part, remanded in part, and appeal dismissed in
part.
Judges McGEE and STROUD concur.
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