In re A.S.

• Decision Date: 20 August 2013
• Docket Number: No. COA13–147.,COA13–147.
• Citation: 749 S.E.2d 112
• Parties: In the Matter of A.S., D.T., M.S., H.H., M.L.
• Court: North Carolina Court of Appeals

749 S.E.2d 112

In the Matter of A.S., D.T., M.S., H.H., M.L.

No. COA13–147.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by respondent-mother from orders entered 11 October 2012 and 6 November 2012 by Judge Eula E. Reid in Currituck County District Court. Heard in the Court of Appeals 5 August 2013.

Courtney S. Hull, for petitioner-appellee Currituck County Department of Social Services.

Richard Croutharmel, for respondent-appellant mother.

MARTIN, Chief Judge.

Respondent-mother (“mother”) appeals from two permanency planning and review orders. In the first order, the district court: (1) relieved the Currituck County Department of Social Services (“DSS”) from further efforts toward reunification as to minor children A.S. (“Ashley”), M.S. (“Missy”), H.H. (“Hilary”), and M.L. (“Miley”); ¹ (2) changed the permanent plan for these children from reunification to guardianship with a relative; and (3) appointed guardians for Hilary and Miley. The second order appointed mother's half-sister (“Ms.H.”) as a guardian for Ashley and Missy, while returning to mother's custody the minor child D.T. (“Dorothy”). Mother preserved her right to appeal the cessation of reunification efforts and gave timely notice of appeal from both orders.

During the period at issue in these proceedings, mother was married to Dorothy's father (“Mr. T.”), with whom she had a second child (“Monique”). Dorothy and Monique, along with Ashley, Missy, Hilary, and Miley resided with mother and Mr. T., who served as their primary caretaker while mother worked full-time. The family has a prior DSS history, dating back to 2005, which includes inappropriate discipline and domestic violence in mother's home. Previous DSS involvement resulted in two reports that required mandatory services, one report that ended with services recommended, and four reports that were closed following the investigation/assessment.

The instant proceedings began on 24 October 2010 when DSS received a Child Protective Services (“CPS”) report that Mr. T. had injured seven-year-old Miley by hitting her with a belt and knocking her to the ground. Miley sustained “a large, dark, bruise with a scrape” on her chin and welts down her back. DSS removed her from the home and placed her with her paternal grandparents without initiating a court proceeding. After another CPS report on 31 January 2011, DSS interviewed three-year-old Missy at her daycare and found that she had “two circular red bruises to the right side of her face between her eye and hairline.” Missy disclosed that Mr. T. had “popped” her on the right side of her head for stuffing food in her mouth. During an interview with a DSS social worker at her school, six-year-old Hilary stated that Mr. T. “beat” Missy the previous evening while mother was at work, and that mother “did not respond to the marks on [Missy]'s face” when she arrived home. Hilary also claimed that Mr. T. “beats” her “all the time” with a belt or his hand.

On 1 February 2011, DSS obtained non-secure custody of Ashley, Missy, Hilary, Miley, and Dorothy, and filed petitions alleging that they were abused, neglected, and dependent juveniles. Mother and the children's four fathers, including Mr. T., stipulated to the petitions' allegations and to adjudications of neglect based thereon. Despite their stipulations, mother and Mr. T. refused to participate in any services recommended to them by DSS. Moreover, mother continued to allow Mr. T. to supervise and physically discipline the children, and failed to recognize the improper methods of discipline utilized by Mr. T.

Beginning 22 July 2011, Ashley, Missy, and Dorothy were returned to Mr. T. and mother's home on a trial basis. Hilary joined her sisters in Mr. T. and mother's home on 17 August 2011, but Miley remained in the care of her paternal grandparents due to her fear of Mr. T.

Despite DSS's efforts towards reunification, a review order entered by the district court on 30 August 2011, and filed on 17 October 2011, found that communication between DSS and mother was “no longer reciprocal,” since early August 2011. DSS was forced to make multiple contacts with mother before she would perform tasks for the children. Additionally, mother had failed to communicate information to DSS, and had misrepresented other facts. Further, DSS began to question mother's “level of parental vigilance” and ability to protect her children from future instances of inappropriate discipline by Mr. T. because Mr. T. stated that he takes no responsibility for the injuries he caused to the children. The court allowed the trial placement to continue, but ordered “frequent announced and unannounced visitation by DSS to ensure the safety and wellbeing of the children.”

DSS received another CPS report on 16 November 2011, alleging that Missy was afraid to go home after school, that Hilary and Ashley were showing physical aggression toward Missy, and that mother and Mr. T. were again using a belt to discipline the children. Based on the report, the observed decline in the children's well-being, and an inability to monitor the children in the home due to mother's lack of cooperation, DSS terminated Missy, Hilary, and Ashley's trial placements on 17 November 2011. Hilary was placed in the home of her paternal grandmother; Ashley and Missy were placed with their maternal aunt, Ms. H.

Thereafter, on 8 December 2011, DSS filed a motion for a permanency planning and review hearing, asking to be relieved of further efforts toward reunification. DSS alleged that although Mr. T. had attended parenting classes, and mother was “compliant with her service plan” by completing parenting classes and beginning other services at Smart Start, and by attending visitation with the children, DSS was concerned that the skills mother learned were not being displayed during visitation, and thus, there remained concern about mother's ability to care for her children going forward.

The district court received evidence on three days between 9 March and 21 May 2012 and entered an order on 31 May 2012, which was filed on 11 October 2012. The order ceased reunification efforts as to Ashley, Missy, Hilary, and Miley, and changed their permanent plan from reunification to guardianship with a relative or other suitable person. The order awarded guardianship of Miley to her paternal grandparents and awarded guardianship of Hilary to her paternal grandmother. Guardianship with Ms. H. was established as the permanent plan for Ashley and Missy. The court continued Dorothy's trial placement with mother and Mr. T.

In a subsequent review order entered 24 August 2012 and filed 6 November 2012, the district court awarded guardianship of Ashley and Missy to Ms. H. and returned Dorothy to mother's custody.

_________________________

On appeal, mother claims the district court abused its discretion in ceasing reunification efforts and changing the permanent plan for Miley, Missy, Hilary, and Ashley from reunification to guardianship. Although mother suggests that the court ceased reunification efforts as to Ashley and Missy in its 6 November 2012 order, the record shows that the court ceased reunification efforts and changed the permanent plan for the four children in the order entered 11 October 2012. We therefore review the court's decision to relieve DSS of further efforts based on the contents of this order.

“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). “At the disposition stage, the trial court solely considers the best interests of the child.” In re Pittman, 149 N.C.App. 756, 766, 561 S.E.2d 560, 567 (2002) (citing In re Dexter, 147 N.C.App. 110, 114, 553 S.E.2d 922, 924 (2001), disc. review denied,356 N.C. 163, 568 S.E.2d 608,appeal dismissed,356 N.C. 163, 568 S.E.2d 609,cert. denied,538 U.S. 982, 155 L.Ed.2d 673 (2003)). “[F]acts found by the trial court are binding absent a showing of an abuse of discretion.” In re Dexter, 147 N.C.App. at 114, 553 S.E.2d at 924–25 (citing Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001)). “As this Court has clarified, ‘[w]here the trial court's findings are supported by competent evidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary.’ “ In re K.S., 183 N.C.App. 315, 323, 646 S.E.2d 541, 545 (2007) (quoting In re J.S., 165 N.C.App. 509, 511, 598 S.E.2d 658, 660 (2004)). Furthermore, to the extent that mother does not challenge certain findings, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

Mother first argues that the district court failed to make the “ultimate findings necessary to allow meaningful appellate review” of its orders. We disagree.

Under N.C.G.S. § 7B–507(b), the court may order the cessation of reasonable efforts toward reunification “if the court makes written findings of fact that ... [s]uch 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) (2011); see also In re I.R.C., 214 N.C.App. 358, ––––, 714 S.E.2d 495, 497–98 (2011) (identifying the ultimate findings of fact required by N.C.G.S. § 7B–507(b)(1)).

In this case, the trial court properly made this “ultimate finding” in Finding of Fact 85 and Conclusion of Law 3 of the 11 October 2012 order. We reject mother's argument that the court was also required to make “an ultimate finding that [she] and/or Mr. T. neglected the children” during the trial placement. Unlike an adjudication of grounds for termination of parental rights under N.C...