In re A.G.T.

• Decision Date: 06 August 2013
• Docket Number: No. COA13–320.,COA13–320.
• Citation: 749 S.E.2d 110
• Parties: In the Matter of A.G.T.
• Court: North Carolina Court of Appeals

749 S.E.2d 110

In the Matter of A.G.T.

No. COA13–320.

Court of Appeals of North Carolina.

Aug. 6, 2013.

Appeal by respondent from order entered 11 January 2013 by Judge Andrea F. Dray in Buncombe County District Court. Heard in the Court of Appeals 1 July 2013.

Hanna Frost Honeycutt, for petitioner-appellee Buncombe County Department of Social Services.

Rebekah W. Davis, for respondent-appellant mother.

Winston & Strawn LLP, by Eric M.D. Zion, for guardian ad litem.

ERVIN, Judge.

Respondent–Mother Valerie W. appeals from an order adopting a permanent plan for A.G.T.¹ consisting of an award of custody to Respondent–Father Vincent T., awarding the custody of Adam to Respondent–Father, concluding that Adam could not be returned to Respondent–Mother's custody in the next six months, granting Respondent–Mother one hour of supervised visitation with Adam each week, and determining that there was no need for the holding of regular review hearings in the future. On appeal, Respondent–Mother argues that the trial court erred by awarding the custody of Adam to Respondent–Father and establishing custody of Adam with Respondent–Father as Adam's permanent plan, determining that Adam should not be placed in the custody of Respondent–Mother and authorizing DSS to refrain from making further efforts to reunite Adam with Respondent–Mother, limiting Respondent–Mother to supervised visitation with Adam, and failing to order the implementation of an adequately specific plan for Respondent–Mother's visitation with Adam. After careful consideration of Respondent–Mother's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's decision to adopt a permanent plan of custody with Respondent–Father and awarding custody to Respondent–Father is not supported by adequate findings of fact; that the trial court did not err by declining to award custody of Adam to Respondent–Mother, authorizing the cessation of efforts to reunify Adam with Respondent–Mother, or limiting Respondent–Mother to supervised visitation with Adam; that the trial court failed to adopt a sufficiently specific visitation plan for Respondent–Mother; and that this case should be remanded to the Buncombe County District Court for further proceedings not inconsistent with this opinion.

I. Factual Background

On 21 April 2011, the Buncombe County Department of Social Services filed a juvenile petition alleging that Adam, who was, at that point, fifteen months old, was a neglected and dependent juvenile and obtained non-secure custody of Adam. On 6 October 2011, the court entered an order adjudicating Adam to be a neglected and dependent juvenile based, at least in part, on stipulations by Respondent–Father and Respondent–Mother. The stipulated findings in the 6 October 2011 order reflect that Adam had resided with Respondent–Mother until February of 2011, when she was arrested for ramming Respondent–Father's car with her car, which contained Adam and her four-month-old son.² Subsequently, Respondent–Mother suffered a “mental health breakdown,” a development which resulted in the assertion of additional criminal charges and her commitment to a hospital in Winston–Salem. At that point, DSS placed Adam with Respondent–Father and his live-in girlfriend, Christina H. Adam remained in Respondent–Father's custody until he was charged with and arrested for assaulting an adult woman in Adam's presence, at which point Adam was taken into DSS custody.

The dispositional portion of the 6 October 2011 order included findings that the charges against Respondent–Father had been dismissed and that “the criminal charges were the only reason [Adam] was removed from his care. The [R]espondent[-F]ather has been cooperative with [the social worker] and is appropriate with the minor child.” After noting that Respondent–Father and Ms. H. had completed a case plan involving the child whom they had had together, ³ the court further found that “[t]here are no safety concerns preventing [Adam] or [Trey] from returning to this home.” On the other hand, the court noted that Respondent–Mother was “receiving targeted case management support services through Family Preservation Services,” including individual therapy, medication monitoring, and intensive parenting skills training. Although Respondent–Mother had “gone to great lengths” to comply with these services, the court found that she had “significant deficits in coping and life management skills” and showed signs of “increasing frustration over the ambivalent status of the [pending juvenile] case.” Based upon these findings, the court kept Adam in DSS custody on the basis of Respondent–Mother's “mental health issues” and Respondent–Father's “pending felony drug charges.”

On 3 January 2012, the court entered an order establishing a permanent plan of reunification for Adam. Among other things, the court found that both of Adam's parents were making progress working on their case plans and had successfully visited with Adam on a supervised basis. In addition, Respondent–Father and Ms. H. had been allowed an hour of unsupervised visitation with Adam, which had also gone well. The court noted the existence of reports indicating that Adam had exhibited behavioral problems in daycare following his visits with Respondent–Mother and that Adam was “happy, calm, and readjusts quickly back into the classroom after visits with the [R]espondent[-F]ather.” After making these findings, the court authorized unsupervised visitation by both of Adam's parents.

On 14 March 2012, subject to a 23 March 2012 amendment, the court entered a permanency planning review order which found that Adam's parents were continuing to make progress in addressing the conditions which had led to Adam's removal from their homes. According to the court, Respondent–Mother had shown “a marked improvement” in handling her Bipolar I Disorder symptoms and was “learn[ing] to utilize appropriate coping and emotion regulation skills.” Trey had been returned to the home of Respondent–Father and Ms. H. and was “doing well.” Both Respondent–Father and Respondent–Mother had been enjoying weekly, day-long unsupervised visits with Adam. As a result, the court approved overnight unsupervised visitations between both parents and Adam, with these unsupervised visits intended to lead to trial home placements.

On 7 September 2012, the court entered a permanency planning review order in which it found that Adam and Jim were in a trial home placement with Respondent–Mother and that Adam was staying with Respondent–Father and Ms. H. on weekends. The court noted that Adam had been referred for speech therapy by Child Developmental Services and expressed concern about the fact that his attendance at daycare was irregular due to Respondent–Mother's lack of reliable transportation. The court made reference to a report by Adam's play therapist to the effect that, although the child was “emotionally fine,” the environment in Respondent–Mother's home “is stressful and causes concern.” Similarly, a social worker reported “that often the minor children are hard for the [R]espondent[-M]other to handle.” In light of these determinations, the court ordered Adam's parents to attend and participate in mediation concerning Adam's placement schedule and ordered Respondent–Mother to “find dependable transportation to keep the minor child in daycare” and “concentrate more on learning parenting skills and less on socializing.”

The court continued the next permanency planning and review hearing on two occasions in light of the parents' mediation schedule and the necessity for appointing new counsel to represent Respondent–Father. Before the next scheduled hearing could take place, DSS terminated Adam's trial placement with Respondent–Mother and placed him with Respondent–Father given that “[R]espondent[-M]other [had] demonstrated [a] repeated pattern of just poor judgment and inability to foresee dangers/risk for the minor children.” In a report dated 27 August 2012, DSS provided the following explanation for its decision to terminate Adam's trial placement with Respondent–Mother:

... [Jim] was burned on a bar-be-que grill after [Respondent–Mother] admittedly left the child outside to return to the home for something out of the kitchen, [Adam] had access [to] [Respondent–Mother's] razor and shaved off part of his eyebrow, the minor children are reported to have uncommon sleep patterns at daycare and ... [Adam] is not able to meet the desired sessions with child development staff due to absences in daycare, child development staff observe [Adam] to have high levels of stress and anxiety ..., [Respondent–Mother's] Assertive Community Treatment Team (“ACTT”) report that the [R]espondent[-M]other has threatened staff members and refused to have contact with two of the three assigned support staff, ... and [Respondent–Mother] threatened to murder [the] Social Worker ... if the minor children were placed outside of her home.

At the time that a social worker came to retrieve the children on 20 August 2012, Respondent–Mother “cursed and threatened” the social worker and “tried to approach [her] aggressively [but] law enforcement held [Respondent–Mother] at bay.” Respondent–Mother refused to let the social worker take any of the children's toys or clothing with them. DSS reported that Respondent–Mother had been taken to Copestone for evaluation and that the Child and Family Team had concerns about Respondent–Mother's ability to parent her children without the intensive support services provided by ACTT. In addition, DSS informed the court that Respondent–Father was at risk of having his probation revoked and that he and Ms. H. were in the process of moving to a new residence.

In a letter dated 9 September 2012, the guardian ad litem reported the following observations regarding Respondent–Mother's visits with Adam and Jim:

... Each visit starts out hopefully...