In re B.L.M.-S., ___ N.C. App. ___ (May 21, 2024)
Held:
Affirmed in Part
Remanded
There is a dissent
in part by Tyson, J.
- Facts: Infant was adjudicated abused and neglected based on findings of two broken ribs that occurred on separate occasions while in the sole care of Father and Mother, Father’s frequent shaking and squeezing the child when the child was crying, and the child’s exposure to domestic violence between Father and Mother. The initial disposition order placed the child with their maternal grandparents. The order concluded that reasonable efforts to reunify the child with Father were not required based on aggravating circumstances of chronic physical abuse of the child, ordered Father not to contact Mother, and ordered supervised visitation for Mother with the child. Father appealed. This summary addresses Father’s arguments that the court’s findings were insufficient to conclude that reasonable reunification efforts were not required, and that the court misapprehended the law by including in the decretal portion of the order that reunification efforts with the child are “hereby ceased.”
- Dispositional orders are reviewed for an abuse of discretion. “[T]he extent to which [a] trial court exercised its discretion on the basis of an incorrect understanding of the law raises an issue of law subject to de novo review on appeal.” Sl. Op. at 12 (citation omitted).
- A court may direct at initial disposition that reasonable efforts toward reunification are not required upon a “ ‘determination that aggravating circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of,’ inter alia, ‘chronic physical abuse.’ ” Sl. Op. at 5, quoting G.S. 7B-901(c)(1)(b). The court must make written findings that explain the aggravating circumstances, not a “ ‘mere declaration’ that such circumstances exist[.]” Sl. Op. at 6 (citation omitted). G.S. 7B-901(c) “does not authorize a court to order DSS to cease reunification efforts with a respondent.” Sl. Op. at 13 (referencing S.L. 2015-135, sec. 7, 9, amending G.S. 7B-901(c) to remove the phrase “or shall cease”). The court used the proper statutory language in its finding and conclusion of law to order that reunification efforts are not required. The use of “hereby ceased” in the decretal portion of the order is “merely an instance of imprecise language[.]” Sl. Op. at 13. The order is remanded to clarify the wording to conform to the statutory language and the court’s proper conclusion of law as to reunification efforts with Father. Author’s Note: Although this opinion addresses amendments made to the statutory language regarding “ceasing reunification efforts”, it does not address the common practice of using that term when DSS is relieved of making reunification efforts at initial disposition or the case law that holds using the exact statutory language is not required so long as the substance of the statute is addressed.
- Findings support the conclusion that Father committed, encouraged or allowed the chronic physical abuse of the child. Findings supported by Father’s and social worker’s testimony include (1) Father on multiple occasions held the child tightly and squeezed and shook the child with force equal to that used to operate a vice grip and (2) the child suffered two rib fractures on two different occasions. The court rejects Father’s arguments that this pattern of abuse over the child’s two months of life is not chronic, adding that Father’s focus on the child’s two rib fractures in two months misses the importance of his own admissions to the described pattern of physical abuse of the child. The court also dismisses Father’s argument that DSS did not ask the court to find that reunification efforts with him were not required, as dispositional choices are left to the discretion of the trial court and the court is not required to adopt DSS’s recommendations. The written findings of aggravating circumstances support the conclusion that reunification efforts with Father were not required. Father’s argument is overruled.
- Dissent: The conclusion that reunification efforts with Father are not required is not supported by supported written findings.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Findings