In re K.S.

• Citation: 646 S.E.2d 541
• Decision Date: 05 June 2007
• Docket Number: No. COA06-1697.,COA06-1697.
• Court: Court of Appeal of North Carolina (US)
• Parties: In re K.S., A Minor Juvenile.

646 S.E.2d 541

In re K.S., A Minor Juvenile.

No. COA06-1697.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by respondent mother from order ceasing reunification efforts and entering a permanent plan for adoption entered 16 October 2006 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 30 April 2007.

Tyrone C. Wade, for Mecklenburg County Department of Social Services, Charlotte, petitioner-appellee.

Hunton & Williams, by Jason S. Thomas, Raleigh, guardian ad litem attorney advocate for the minor child.

Richard Croutharmel, Raleigh, for respondent-appellant mother.

JACKSON, Judge.

The minor child in this action, K.S., was born to Bonita S. ("respondent") in June 2004. At the time, respondent had three other children. Respondent's parental rights had been terminated as to one of these children, and another had been placed with relatives in South Carolina. A third child resided with the biological father.

In February 2005, Mecklenburg County Department of Social Services ("DSS") learned that respondent had placed K.S. with K.S.'s maternal grandmother in Catawba County. Shortly thereafter, respondent removed K.S. from the grandmother's home and moved with K.S. to Mecklenburg County, where they resided at the Salvation Army Women's Shelter. DSS also learned that respondent had a history of substance abuse and that she intended to enter substance abuse treatment. Respondent began treatment in the CASCADE program, but ceased participating in the program shortly thereafter. She also left the Women's Shelter and moved in with a friend who was recovering from substance abuse. Respondent subsequently began living in a "crack house," and returned K.S. to the maternal grandmother's home.

On 17 June 2005, DSS filed a juvenile petition alleging that K.S. was dependent and neglected on the basis that respondent was not in a position to care for K.S. and that the maternal grandmother's home was not an appropriate placement as the maternal grandmother had a prior history with Catawba County DSS. The petition further alleged that respondent was five months pregnant, was taking medications for depression and narcolepsy, and had relapsed in her substance abuse. Based on this juvenile petition, DSS was granted non-secure custody.

On 12 July 2005, the trial court adjudicated K.S. dependent and neglected and entered a disposition order with a plan for reunification with respondent and ordering respondent (1) to complete a parenting capacity evaluation and follow any recommendations; (2) to follow any treatment recommendations made by Families in Recovery to Stay Together ("F.I.R.S.T."); (3) to participate in random drug screens; and (4) to remain drug and alcohol free. The trial court found that the issues that must be resolved to achieve reunification included respondent's substance abuse, her ability to provide for the needs of the child, unstable housing and employment, and lack of parenting skills. The trial court also noted that the F.I.R.S.T. assessment reported that respondent was receiving substance abuse and mental health treatment and recommended that respondent seek domestic violence counseling as well.

At a review hearing on 29 September 2005, DSS reported that respondent was residing at the CASCADE treatment center and was eight months pregnant. DSS further reported that respondent was appropriate with K.S. during visitation and that she and K.S. were bonding well. In its order, the trial court ruled that respondent needed (1) to complete a parental capacity evaluation; (2) to continue to visit with K.S.; (3) to cooperate with the F.I.R.S.T. program; (4) to provide information about K.S.'s father so that he could have a background check and be included in the case plan; and (5) to obtain housing and employment. The trial court continued the plan of reunification, gave DSS authority to expand visitation, and concluded that termination of parental rights was not in the best interest of K.S.

In October 2005, respondent gave birth to C.S. Both respondent and C.S. tested negative for drugs at birth, and C.S. was permitted to reside with respondent at CASCADE's residential treatment facility.

In its report for a review hearing on 8 June 2006, DSS reported that respondent had missed multiple meetings at CASCADE without excuse, had missed one domestic violence program meeting, and had stopped attending therapy sessions. While respondent had become employed through a temporary agency, she lost the job when she was unable to make care arrangements for C.S. DSS reported that respondent had not gained the level of independence that CASCADE had hoped for, but respondent was expected to move to Hope Haven at the end of the month where she would be taught "basic living skills such as budgeting, grocery shopping, etc." Finally, DSS expressed concerns about respondent's truthfulness after receiving conflicting reports about the circumstances of a new pregnancy. Because respondent had not made sufficient progress to permit K.S. to be returned after almost a full year, DSS recommended that the trial court adopt a concurrent plan of adoption.

In its order from the 8 June 2006 review hearing, the trial court noted that respondent had been sober for eleven months, but had not completed either the domestic violence or therapy component of her case plan. Notwithstanding DSS's recommendation that the trial court adopt a concurrent plan of adoption, the trial court maintained the status quo of the case.

At a permanency planning hearing on 21 September 2006, the trial court reviewed a summary report from the F.I.R.S.T. Program coordinator, in which the coordinator stated that respondent had been clean for 434 consecutive days, had completed treatment, and was in transition with housing. The coordinator, however, expressed concerns about respondent's "meeting the required amount of NA/AA [meetings] as well as her engagement with a sponsor." DSS in its report noted that respondent had made progress towards sobriety, had successfully completed the domestic violence program, and had acknowledged that she had made poor decisions in the past. DSS also reported that since the last review hearing, respondent had missed only one F.I.R.S.T. meeting and that the absence had been excused. DSS further noted that respondent had moved to Hope Haven and "did a good job actively participating," but due to respondent's high risk pregnancy and a work limitation placed upon her by her doctor, respondent was unable to work the necessary eight hours per day to cover her rent. As a result, respondent left Hope Haven and moved to the Salvation Army Shelter with C.S. Two weeks later, respondent was transferred to the Battered Women's Shelter after a domestic violence episode with her ex-boyfriend, and on 5 September 2006, respondent moved from the Battered Women's Shelter to the home of a community advocate.

Although DSS previously had recommended a concurrent plan of adoption, DSS now recommended that the plan of reunification be continued. Notwithstanding DSS's recommendation, the trial court ordered that the permanent plan be changed from reunification to adoption and termination of parental rights, and the court ordered DSS to file a termination petition. Respondent appeals from this permanency planning order.

In her first assignment of error, respondent asserts that (1) the trial court's order ceasing reunification efforts does not contain the statutorily required findings; and (2) the findings made by the trial court are not supported by the evidence.

Pursuant to North Carolina General Statutes, section 7B-907(b),

[a]t the conclusion of the [permanency planning review] hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:

(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;

(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;

(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;

(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why (5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;

(6) Any other criteria the court deems necessary.

N.C. Gen.Stat. § 7B-907(b) (2005). This Court has held that it is reversible error for the trial court to enter a permanency planning order that continues custody with DSS without making proper findings as to the relevant statutory criteria. See, e.g., In re J.S., 165 N.C.App. 509, 598 S.E.2d 658 (2004). Additionally, the "findings of fact must be `sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment.'" Id. at 511, 598 S.E.2d at 660 (quoting Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)).

In J.S., this Court found that the trial court failed to comply with section 7B-907(b) when "the trial court entered a cursory two page order" and "did not incorporate any prior orders or findings of fact from those orders. Instead, the trial court incorporated a court report from DSS and a mental health report . . . as a finding of fact." Id. Much as in J.S., the trial court in the case sub judice incorporated a DSS report, and as this Court stated, "it is permissible for trial courts to consider all written...