In re A.A.
| Decision Date | 15 July 2014 |
| Docket Number | No. COA14–291.,COA14–291. |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of A.A., L.A. |
Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
Mary McCullers Reece for respondent-appellant father.
Respondent-father appeals from two orders. The first order relieved the Stokes County Department of Social Services (“DSS”) from further efforts toward reunification as to minor children A.A. (“Adam”) and L.A. (“Lisa”).1 The second order awarded guardianship of the minor children to their maternal aunt and uncle, Mr. and Mrs. A. Respondent-father preserved his right to appeal the order ceasing reunification efforts and filed notice of appeal from both orders. SeeN.C. Gen.Stat. §§ 7B–507(c), 7B–1001(a)(4), (5) b., (b) (2013).
I. Procedural History
At the time of his birth in May 2008, Adam tested positive for opiates, cocaine, and amphetamines. Lisa also tested positive for opiates and cocaine when she was born in April 2011. During its investigation of the family in May 2011, DSS conducted a pill count of respondent-father's Vicodin, Flexeril, and Adderall prescriptions and found that “all medication [was] short of the recommended dosage.” On 13 May 2011, respondent-father refused to submit to a random drug screen requested by DSS and exhibited symptoms of intoxication.
On 6 June 2011, DSS obtained non-secure custody of Adam and Lisa and filed petitions2 alleging that they were neglected juveniles as defined by N.C. Gen.Stat. § 7B–101(15) (2013). The trial court entered adjudications of neglect on 8 November 2011. Respondent-mother stipulated that her substance abuse prevented her from caring for the children. Respondent-father was incarcerated for defrauding a drug screen while on probation in September 2011. He was released from prison on 27 February 2012, and signed a case plan with DSS on 9 March 2012.
The trial court ceased reunification efforts as to respondent-mother on 19 April 2012. Respondent-father worked on his case plan by visiting with the children, obtaining stable housing and employment, complying with random drug screens, and attending substance abuse treatment and anger management counseling with John Pulliam of Choose Life Addiction Recovery Services. Following a review hearing on 20 December 2012, the trial court authorized a trial placement of the children in respondent-father's home. In response to the guardian ad litem's report that respondent-father had allowed respondent-mother to speak to Adam and Lisa by telephone, the court expressly forbade any contact between the children and their mother.
After a review hearing on 21 March 2013, the trial court entered an order terminating the children's trial placement and relieving DSS of further efforts to reunify the children with respondent-father. The trial court also held a permanency planning hearing on 5 September 2013 and entered an order on 15 October 2013, changing Adam and Lisa's permanent plan from reunification with respondent-father to guardianship and awarding guardianship of the children to their maternal aunt and uncle, Mr. and Mrs. A.
II. Ceasing Reunification Efforts
On appeal, respondent-father claims that the trial court erred in ceasing reunification efforts under N.C. Gen.Stat. § 7B–507(b)(1) (2013). He contends that many of the trial court's findings of fact in support of its decision constitute mere recitations of witness testimony or are unsupported by the evidence. The remaining findings, respondent-father argues, are insufficient to support the trial court's conclusion that further reunification “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)(1).
“This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M.,183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (citation omitted). Under N.C. Gen.Stat. § 7B–507(b)(1) (2013), “[a] trial court may cease reunification efforts upon making a finding that further efforts 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[.]” Id.at 214, 644 S.E.2d at 594 (quotation omitted). Though characterized as a finding or “ ‘ultimate finding[,]’ the determination that grounds exist to cease reunification efforts under N.C.G.S. § 7B–507(b)(1) is in the nature of a conclusion of law that must be supported by adequate findings of fact.” In re E .G.M.,––– N.C.App. ––––, ––––, 750 S.E.2d 857, 867 (2013) (quoting In re I.R.C.,214 N.C.App. 358, 363, 714 S.E.2d 495, 499 (2011) ; citing In re I.K.,––– N.C.App. ––––, ––––, 742 S.E .2d 588, 595 (2013) ).
We conclude that the review order entered on 26 April 2013 lacks sufficient findings of fact to support the trial court's ultimate finding under N.C. Gen.Stat. § 7B–507(b)(1). “[A] proper finding of facts requires a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.” Quick v. Quick,305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). This Court has repeatedly emphasized that “ ‘[r]ecitations of the testimony of each witness do notconstitute findings of factby the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.’ “ Moore v. Moore,160 N.C.App. 569, 571–72, 587 S.E.2d 74, 75 (2003) () (emphasis in original).
It appears that the trial court's decision to cease reunification efforts was based primarily on evidence that respondent-father had abdicated his role as the children's caretaker and/or exposed the children to contact with respondent-mother during the trial placement. Of particular concern were the amount of time Lisa had spent in the care of her paternal grandmother, rather than respondent-father, and the whereabouts of both children on the night and morning of 13–14 March 2013. After hearing conflicting evidence on these issues, however, the trial court failed to enter affirmative findings of fact to resolve them.3 Instead, it summarized the conflicting accounts of respondent-father, his brother, and his mother and found generally that respondent-father's “testimony, under oath, was untruthful and not credible in any way.” While it is possible to construe this finding as an implicit adoption of the testimony of respondent-father's mother and brother, it is not the role of this Court to infer necessary findings where none appear. See State v. Brown,314 N.C. 588, 596, 336 S.E.2d 388, 393 (1985) (); see also In re A .S.,190 N.C.App. 679, 691, 661 S.E.2d 313, 321 (2008) (), aff'd per curiam,363 N.C. 254, 675 S.E.2d 361 (2009).
We agree with respondent-father that the remaining findings do not support the trial court's determination that further reunification efforts “would clearly be futile and inconsistent with the juveniles' health, safety, and need for a safe, permanent home within a reasonable amount of time.” Finding 22 states that respondent-father “has not been taking care of the children as court ordered in the trial placement.” However, the order authorizing the trial placement contains no specific directives regarding the children's care other than (1) obtaining daycare approved by DSS;4 (2) providing bi-weekly and Christmas visitation to Mr. and Mrs. A.; and (3) forbidding contact “between the children and the mother.” The trial court neither made findings that respondent-father violated these provisions5 nor did it make any evidentiary findings that would logically support a conclusion that respondent-father violated the terms of the 18 February 2013 trial placement order.
Finding 23 states generally that respondent-father “ ‘did his own thing,’ after trial placement, stopped complying with his case plan, and in fact made no further effort on his case plan, regressing on his case plan.” The only specific findings that address respondent-father's compliance with his case plan are as follows:
19. [Respondent-father] noted that he'd been ordered to continue his counseling [at] “a court date before last, to continue his anger management classes, but he had, as of the last court date, a letter of completion for his substance abuse treatment and anger management.” He stopped going to the sessions.
20. [Respondent-father] did not complete his drug counseling, as he's been ordered.
21. [Respondent-father] had maintained weekly contact with DSS as ordered until 1–19–13.[He] failed to contact DSS again until 2–12–13.[He] did not provide DSS with a copy of his work schedule as DSS requested on 2–15–13 until 3–7–13.
As for Finding 20, the evidence showed that John Pulliam certified by letter dated 24 November 2012 that respondent-father had “successfully completed his individualized treatment program with CHOOSE LIFE” and that “[a]nger management and relapse prevention education and training have been provided.” The trial court held a permanency planning hearing five days later. In the resulting order entered 22 January 2013, the trial court acknowledged Pulliam's...
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