In re L.R.L.B., ___ N.C. ___ (April 23, 2021)

Held: 
Remanded
  • Facts: In an underlying neglect action, at a permanency planning hearing, reunification efforts/reunification was eliminated as a permanent plan. Mother preserved her right to appeal. DSS filed a TPR petition, and the TPR was granted on the grounds of neglect and failure to make reasonable progress. Mother appealed the permanency planning order (PPO) and TPR order. Mother challenges the PPO only and argues the errors in the PPO require the TPR to be vacated under G.S. 7B-1001(a2).
  • G.S. 7B-1001(a2) requires the appellate court to review the two orders “together” and states, “If the order eliminating reunification is vacated or reversed, the order terminating parental rights shall be vacated.” Sl.Op. ¶10.
  • The challenged findings of the PPO are supported by competent evidence, including social worker testimony, and are binding on appeal. However, the findings are insufficient to eliminate reunification as they do not include all four required findings under G.S. 7B-906.2(d).  The trial court is not required to use the exact language of the statute but must address the statute’s concerns. Here, the court made findings as to the substance and concerns raised by G.S. 7B-906.2(d)(1), (2), and (4). The order does not address G.S. 7B-906.2(d)(3) – “whether the parent remains available to the court, the department, and the guardian ad litem of the juvenile.” Sl.Op. ¶20.
  • There is a difference between a fatally defective PPO and an incomplete order with insufficient findings of fact. An order with insufficient findings of fact may be cured by findings in the TPR. A PPO eliminating reunification is reviewed together with a TPR order, and “incomplete findings of fact in the [PPO] may be cured by findings of fact in the termination order.” In re L.M.T., 367 N.C. 165, 170 (2013);  Sl.Op. ¶22. The 2017 amendments made to G.S. 7B-1001 have not abrogated the holding in In re L.M.T. since the two orders continue to be reviewed together. Here, the court made the ultimate finding required by G.S. 7B-906.2(b) to eliminate reunification as a permanent plan. The failure to address G.S. 7B-906.2(d)(3) warrants a remand for the trial court to correct this deficiency. The DSS and GAL reports address the issue, but the court must make findings of mother’s availability.
  • The language of G.S. 7B-1001 that when a PPO is vacated or reversed the TPR must be vacated is new since 2017.
    • The error in the PPO is not moot. The statutory language precludes a finding that harmless error in the PPO can be mooted by a TPR order (cf. In re H.N.D., 265 N.C. App. 10 (2019) not applying the new 2017 language).
    • Vacating the PPO and the TPR is not required. The appropriate remedy is remand. This court’s precedent in In re L.M.T. allowing the PPO to be cured by the TPR authorizes this remedy. The court of appeals opinions offered by mother to support vacating the PPO are not binding or instructive. Further, “[w]e do not discern that the Legislature enacted N.C.G.S. § 7B-1001(a2) with the intention of disengaging an entire termination of parental rights process in the event that a trial court omits a single finding under N.C.G.S. § 7B-906.2(d)(1)-(4) from its trial court order which eliminates reunification from a child’s permanent plan.” Sl.Op. ¶35. Unlike G.S. 7B-906.2(b), which addresses whether reunification efforts would clearly be unsuccessful or clearly inconsistent with the juvenile’s health or safety, no particular finding in G.S. 7B-906.2(d) is required to support the court’s conclusion to eliminate reunification but instead “merely requires the trial court to make ‘written findings as to each of the’ issues enumerated.” Id. A finding that the parent made herself available to the court, GAL, and DSS does not preclude the trial court from eliminating reunification based on the other factors. The failure to include this one finding is not material and prejudicial warranting a vacating and reversal of the PPO resulting in the TPR being vacated.
Category:
Abuse, Neglect, Dependency
Stage:
Cease Reunification
Topic:
Appeal
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