In re K.L., ___ N.C. App. ___, 802 S.E.2d 588 (2017)

Held: 
Remanded
Reversed in Part
Vacated in Part
  • Procedural History and Facts: This is a second appeal by respondent mother in this neglect action challenging a permanency planning order of custody to the children’s adult sibling and the elimination of reasonable efforts for reunification. In the first appeal, the court of appeals affirmed the January 2015 permanency planning order and found it was not an order ceasing reunification efforts as the order specifically directed DSS to continue efforts to eliminate the need for the child’s placement outside of the home and continue efforts to reunify the child with the respondent mother. The case was remanded to the trial court for a specific visitation schedule. No permanency planning hearings were held after the December 2014 hearing that resulted in the January 2015 order. Reasonable efforts were not provided by DSS after the January 2015 order. On remand, after a permanency planning hearing, a permanency planning order was entered in May 2016. That 2016 order included a visitation schedule as required by the remand and findings that reasonable efforts to reunify the family would be futile and that the permanent plan was previously achieved, and it continued custody with the child’s adult sibling. This 2016 order is the subject of this second appeal.
  • The trial court must comply with statutory requirements set forth in the Juvenile Code. For permanency planning, several statutes in G.S. 7B apply that require the court to make certain inquiries and findings that would support the conclusion to eliminate reunification as a permanent plan: GS 7B-906.1(d), (e), (i) and 7B-906.2(b), (c), (d). “The court’s findings do not satisfy the multiple layers of inquiry and conclusions as are required by the Juvenile Code.” To remove reunification as a concurrent permanent plan, there must be evidence to support the findings of fact to allow the court’s conclusion to eliminate reunification efforts.
    • The court found reasonable efforts would be futile or inconsistent with the juvenile’s health and safety [GS 7B-906.1(d)(3); 7B-906.2(b)] but there was no evidence in the record to support the finding. Incorporating by reference findings contained in previous orders are not sufficient findings of fact. A finding of fact (1) requires a specific statement on which the rights of parties are determined, (2) must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment, (3) must show that the trial court has reviewed the evidence and made the finding through a process of logical reasoning, and (4) must consist of more than a recitation of allegations in the petition. Without evidence or proper findings, the conclusion to cease reunification efforts does not satisfy the statutory requirements.    
    • The court found there was no substantial change in circumstances since the January 2015 order. A substantial change in circumstances is the legal test to review a modification of custody in a chapter 50 civil custody action between two parties and may be required in a motion to modify or vacate an order under G.S. 7B-1000. It is an unnecessary and improper test at a G.S. 7B-906.1 permanency planning hearing. G.S. 7B-906.1(i) authorizes the court at a permanency planning hearing to maintain or order a different placement for the child, appoint a guardian, or order any disposition authorized by G.S. 7B-903 that is found to be in the child’s best interests.
    • G.S. 7B-906.2(d) requires the court to make specific findings to each of the four enumerated factors that demonstrate a parent’s lack of success. One finding that was made prior to the first appeal was that the mother completed many court ordered services. There were no other statutorily required findings about the mother’s progress or lack thereof with respect to the permanent plan or cooperation (or lack thereof) with DSS.
    • G.S. 7B-906.2(c) requires in every subsequent [to the first] permanency planning hearing that the court make written findings about the efforts DSS has made toward achieving the primary and secondary permanent plans. No findings were made on whether DSS made reasonable efforts to reunify the children with their mother, which was one of the permanent plans. The evidence showed no efforts were provided since the 2015 order and appeal and that DSS “disregarded its statutory duty to ‘finalize primary and secondary’ plans until relieved by the trial court."
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
Findings of Fact
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