In re MRDC

• Citation: 166 NC App. 693,603 S.E.2d 890
• Court: Court of Appeal of North Carolina (US)
• Decision Date: 02 November 2004
• Parties: In re M.R.D.C.

603 S.E.2d 890

166 NC App. 693

In re M.R.D.C.

No. COA04-2.

Court of Appeals of North Carolina.

November 2, 2004.

Marjorie S. Canaday, Raleigh, for respondent-appellant.

Paul W. Freeman, Jr., Wilkesboro, for petitioner Wilkes County DSS.

LEVINSON, Judge.

Respondent, Michael Conley, appeals from a permanency planning order relieving petitioner, Wilkes County Department of Social Services (DSS), from efforts to reunify him with his daughter Mary.¹

The procedural history of this case is summarized as follows: On 26 July 2001 petitioner filed a petition alleging that Mary was neglected, in that respondent and Mary's mother, Latosha Triplett (Triplett), had failed to provide proper care, supervision, or discipline for Mary. A nonsecure custody order was issued on 6 August 2001, and Mary was placed in DSS custody. On 22 October 2001 respondent signed a consent order which adjudicated Mary neglected and continued her in DSS custody. An initial permanency planning hearing was conducted beginning on 14 October 2002, and continuing on 9 December 2002, 30 January 2003, and 10 March 2003. In July 2003 the trial court entered a permanency planning order continuing Mary's custody with DSS, relieving DSS from any further efforts to reunify Mary with respondent, and directing DSS to initiate proceedings for termination of respondent's parental rights. From this order, respondent appeals.

Respondent argues first that the trial court erred by entering a permanency planning order that does not comply with the statutory requirements of N.C.G.S. § 7B-907 (2003). We agree.

The goal of the permanency planning hearing is "to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C.G.S. § 7B-907(a) (2003). In so doing, "`[o]ne of the essential aims, if not the essential aim, of... [the hearing] is to reunite the parent(s) and the child, after the child has been taken from the custody of the parent(s).'" In re Eckard, 144 N.C.App. 187, 196, 547 S.E.2d 835, 841 (2001) (quoting In re Shue, 311 N.C. 586, 596, 319 S.E.2d 567, 573 (1984)). Accordingly, G.S. § 7B-907 requires that, if a juvenile is not returned home at the conclusion of a permanency planning hearing, the trial court must consider certain specified criteria and "make written findings regarding those that are relevant." N.C.G.S. § 7B-907(b) (2003). These factors include, in pertinent part:

(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[.]

N.C.G.S. § 7B-907(b)(1) and (2) (2003). 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., ___ N.C.App. ___, 598 S.E.2d 658 (2004)

(reversing and remanding permanency planning order that failed to make findings of fact required by G.S. § 7B-907(b)). This rule applies even if "the evidence and reports in this case might have supported the determination of the trial court." In re Ledbetter, 158 N.C.App. 281, 286, 580 S.E.2d 392, 395 (2003) (reversing on the grounds that "our statute requires the court to consider the G.S. § 7B-907(b) factors and make relevant findings").

A permanency planning order need not "contain a formal listing of the G.S. § 7B-907(b)(1)-(6) factors, expressly denominated as such ... as long as the trial court makes findings of fact on the relevant G.S. § 7B-907(b) factors[.]" In re J.C.S., ___ N.C.App. ___, ___, 595 S.E.2d 155, 161 (2004). However, in its order:

the trial court must, through "processes of logical reasoning," based on the evidentiary facts before it, "find the ultimate facts essential to support the conclusions of law." 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., ___ N.C.App. at ___, 598 S.E.2d at 660 (quoting In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003), and Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)).

In the instant case, respondent argues that the trial court erred by failing to make the findings of fact required by G.S. § 7B-907(b)(2), regarding whether Mary might be placed with her paternal grandmother, Ms. Rachel Conley (Rachel). The uncontradicted evidence before the trial court tended to show the following: Rachel testified that she had told DSS "from day one" that she would like to have custody of Mary if the child could not be placed with respondent. She is a 53 year old Certified Nursing Assistant, employed full time at Broughton Hospital. Rachel owns her own home located a few miles from respondent, which she shares with her disabled 27 year old son. Triplett had previously left Mary with Rachel on many occasions, for periods as long as two weeks. Rachel's older son and other relatives live within a few miles of Rachel's house, and could provide back-up day care for Mary as needed. In addition to this uncontradicted evidence, conflicting testimony was offered regarding whether Rachel had made statements indicating she was frightened of respondent, and whether she had been uncooperative with DSS efforts to locate respondent. During the hearing, the trial court questioned petitioner as to why greater consideration had not been given to placement with Rachel. In response, DSS social worker Sonya Freeman testified that one phone message had been left with Burke County DSS about setting up a home study, but that when the phone call was not returned DSS had failed to follow up. We conclude that the issue of Mary's possible placement with Rachel was relevant and thus that G.S. § 7B-907(b)(2) required the trial court to make findings of fact on the subject.

We next consider the sufficiency of the trial court's findings of fact on this issue. Only one of the trial court's findings of fact makes any reference to Mary's grandmothers:

23. Due to the maternal grandmother's history of being involved in abusive relationships and continuing to surround herself with convicted sex offenders and physically abusive persons, and neither grandmother is a suitable placement for the child [sic]. There are no other relatives who are willing and able to provide proper care and supervision of the child in a safe home.

This finding is generally concerned with Mary's maternal grandmother, and does not discuss Rachel. The finding does include a cursory statement that "neither grandmother is a suitable placement for the child." However, although this statement is included in one of the trial court's findings of fact, it is actually a conclusion of law:

Matters of judgment are not factual; they are conclusory and based ultimately on various factual considerations. Facts are things in space and time that can be objectively ascertained by one or more of the five senses or by mathematical calculation. Facts, in turn, provide the bases for conclusions.

State ex rel. Utils. Comm. v. Public Staff, 322 N.C. 689, 693, 370 S.E.2d 567, 570 (1988). "We note that, `[i]f [a] finding of fact is essentially a conclusion of law ... it will be treated as a conclusion of law which is reviewable on appeal.'" Smith v. Beaufort County Hosp. Ass'n, 141 N.C.App. 203, 214, 540 S.E.2d 775, 782 (2000) (quoting Stan D. Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C.App. 341, 344, 317 S.E.2d 684, 686 (1984)).

We conclude that Finding of Fact number 23 does not contain any factual findings pertaining to Rachel. However, petitioner argues that the trial court's conclusion that "neither grandmother is a suitable placement for the child" is supported by finding of fact number 1:

1. The status of the above-named juvenile is accurately described in those certain Court Summaries prepared by the Social Worker and the Guardian Ad Litem, the same having been admitted into evidence and being incorporated herein as Findings of Fact.

Petitioner contends that the effect of Finding number 1 is that any statement in these Summaries constitutes a "finding of fact" made by the trial court. "At any permanency planning review, the court shall consider information from the parent, the juvenile, the guardian, any foster parent, relative[,] . . . the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review. The court may consider any evidence, including hearsay evidence ... that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." G.S. § 7B-907(b). Moreover, "it is permissible for trial courts to consider all written reports and materials submitted in connection with [juvenile] proceedings." In re J.S., ___ N.C.App. at ___, 598 S.E.2d at 660 (citing In re Ivey, 156 N.C.App. 398, 402, 576 S.E.2d 386, 390 (2003)). However, "[d]espite this authority, the trial court may not delegate its fact finding duty." Id. (citing In re Harton, 156 N.C.App. at 660, 577 S.E.2d at 337). Accordingly, "the trial court should not broadly incorporate these written reports from outside sources as its findings of fact." Id. Thus, although the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review.

We also note that neither the Record on Appeal, nor the transcript of court proceedings, indicates which, if any, Court Summaries were offered as evidence. Further, Court Summaries are prepared for every review hearing, and the finding of fact does not identify which Court Summaries are referred to. Nonetheless, because the record on appeal includes two Court summaries prepared by the...