ii
No. COA09-1386 SIXTEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEAL
* * * * * * * * * * * * * * * * * * * * * * * * * *
IN THE MATTER OFFrom Robeson County
A.S. 07 JA 240
*********************
APPELLANT-RESPONDENT MOTHER’S BRIEF
**********************
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES...... iii
QUESTIONS PRESENTED ...... 1
STATEMENT OF GROUNDS FOR
APPELLATE REVIEW ...... 2
STATEMENT OF THE CASE ...... 2
STATEMENT OF FACTS...... 4
STANDARD OF REVIEW...... 7
ARGUMENT
- The trial court erred in granting custody of Adam to DSS
when both the father and paternal grandmother were available to
care for him...... 8
- The Juvenile Code places a preference for the
placement of children with their relatives over
non-relatives ...... 9
- The paternal grandmother was not appropriately
considered by thecourt as a possible placement ...... 11
- The Father was not appropriatelyconsidered by
the court as a possibleplacement ...... 14
- The trial court erred by failing to ensure that DSS used
reasonable efforts in reunifying Adam with eitherof his parents
in violation of N.C.G.S. §7B-507 ...... 17
- The case plan did not addressthe “diligent use
of preventive orreunification services” by the
Robeson County Department of SocialServices...... 17
- The trial court erred in ceasing reunification efforts
without making the appropriate findings required
by N.C.G.S. §7B-507...... 19
- The court had no support to find that such 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
CONCLUSION...... 20
CERTIFICATE OF SERVICE...... 22
APPENDIX
Transcript of HearingApp. 1 – App. 25
Order on DispositionApp. 26 – App.34
N.C. G.S. §7B-507App. 35 – App. 36
N.C. G.S. §7B-903App. 37 – App. 39
In re K.K., COA08-1473 (unpublished) App. 40 – App. 48
In re I.N.B., COA09-742 (unpublished)App. 49 – App. 65
TABLE OF AUTHORITIES
CASE LAW:
In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008)...... 4
In re Anderson, 151 N.C. App. 94,
464 S.E.2d 599 (2002)...... 20
In re B.P., 168 N.C. App. 728, ____, 612 S.E.2d 328
(2005) ...... 7
In re C.M., 183 N.C.App. 207, 644
S.E.2d 594 (2007) ...... 20
In re D.L. 166 N.C.App. 574, 603
S.E.2d 376, 383 (2004)...... 20
In re Harton, 156 N.C. App. 655,
577 S.E.2d 334 (2003)...... 20
In re Helms, 127 N.C. App. 505,
491 S.E.2d 672 (1997)...... 7, 14
In re I.N.B., ____N.C. App.___, 666
S.E.2d 890 (2008)(unpublished)...... 2, 8, 12, 13,14,15, 19
In re I.N.B., ___N.C. App. ___, 683
S.E.2d 791 (2009)(unpublished)...... 8, 12
In re J.C.S., 164 N.C. App. 96,
595 S.E.2d 155 (2004)...... 7
In re J.J., J.J., J.J., 180 N.C. App. 344,
637 S.E.2d 258 (2006)...... 7
In re K.K., COA08-1473 (5 May 2009)...... 11
In re L.L., 172 N.C. App. 689,
616 S.E.2d 392 (1005)...... 11
In re Montgomery, 311 N.C. 101,
316 S.E.2d 246 (1984)...... 14
In re Pope, 144 N.C. App. 32,
547 S.E.2d 153 (2001)...... 7
State v. Wilson, 118 N.C. App. 616,
546 S.E.2d 870 (1995)...... 8
Starco, Inc. v. AMG Bonding and Ins. Servs.,
124 N.C. App. 332, 477 S.E.2d 211, 215 (1996)...... 7
In re Weiler, 158 N.C. App. 473,
581 S.E.2d 134 (2003)...... 7, 20
STATUTORY LAW:
42 U.S.C. §671(a)(19)(2003)...... 10
N.C. Gen. Stat. §7A-27 ...... 2
N.C. Gen. Stat. §7B-101 (18)...... 17
N.C. Gen. Stat. §7B-505 ...... 10
N.C. Gen. Stat. §7B-507...... 20
N.C. Gen. Stat. §7B-903...... 11, 6
N.C. Gen. Stat. §7B-1001(3) (2009) ...... 2
1
No. COA09-1386 SIXTEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEAL
* * * * * * * * * * * * * * * * * * * * * * * * * *
IN THE MATTER OFFrom Robeson County
A.S. 07 JA 240
*********************
QUESTIONS PRESENTED
I.Did the trial court err in granting custody of Adam to DSS when both the father and paternal grandmother were available to care for him?
II.Did the trial court err by failing to ensure that DSS used reasonable efforts in reunifying Adam with either of his parents in violation of N.C.G.S. §7B-507?
III.Did the trial court err in ceasing reunification efforts without making the appropriate findings required by N.C.G.S. §7B-507(b)?
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Jurisdiction for this appeal is granted by N.C. Gen. Stat. §7A-27 and §7B-1001(3) (2009). This is an appeal of a disposition only.
STATEMENT OF THE CASE
Robeson County Department of Social Services (hereinafter referred to as “DSS”) obtained a Non-Secure Custody order for the juvenile, A.S. (“Adam”),[1] on June 18, 2007. On June 27, 2007, a hearing on the need for continued non-secure custody was held. The matter was continued to July 25, 2007. (R. p. 2-6, 7-8, 11-12)
On July 25, 2007, the Honorable District Court Judge J. Stanley Carmical held a hearing in this matter. He adjudicated the infant as neglected and granted legal custody of Adam to DSS. The Order was filed on August 24, 2007. Following an appeal, this Court affirmed the adjudication of neglect and remanded the disposition for findings of fact. This Court’s decision was affirmed by the Supreme Court of North Carolina on May 1, 2009. (R. p. 29-34, 35-64, 65)
The matter came before the trial court on July 1, 2009 for entry of a dispositional order following the remand. The court took no additional evidence and entered its order based on the July 25, 2007 adjudication and disposition hearing. The Order on Disposition was filed on July 17, 2009. The mother and father both timely appealed the decision on August 12 and August 7, 2009, respectively. (R.p. 101-108, 110-111, 114-115)
STATEMENT OF FACTS
On December 20, 2006, Appellant Mother took Teresa to the hospital for burns on her feet. The Mother claimed that she had boiled water for a medicinal steambath and left the pot of water on the bottom step of the bathtub. Two-year old Teresa was in bed. The Mother went to the kitchen and heard Teresa crying in the bathroom. When she went to the bathroom, the Mother found Teresa hopping up and down and the pot had less water in it or had spilt. Medical personnel at UNC Hospital’s Burn Center indicated that they did not believe that Teresa’s injuries were accidental. Daniel and Isaac were in the home at the time of the incident.[2]
The Mother was caring for the children, David, age 1, Teresa, age 2, and Isaac, age 3, in addition to being pregnant with Adam at the time of the incident. (R.p. 2-8) The children’s father was in Mexico. (R.p. 105, FOF 25, 107, FOF 39; T[3].p. 5, 14) The three children remained in her sole care from December 20, 2006 until January 4, 2007 without further incident. (R.p. 102, FOF 9(a)) The Mother indicated from the onset that the paternal grandmother could be a placement resource. (R.p. 101-102, FOF 5)
The adjudication and disposition on the older children occurred on June 14, 2007, prior to Adam’s birth. The Mother had completed everything DSS had asked of her which included parenting classes and a psychological evaluation in April 2007. (R.p. 13, 106 FOF 29 and 35, p. 85; T.p. 8)
Adam was born approximately seven months after the incident. (R.p. 4, 6, 8) DSS filed a new petition two days after Adam was born. No other incidences occurred before or after this one incident. At the time of his birth, the court declined to place him with his father. (R.p. 102, FOF 9(d)) The court also discounted the paternal grandmother as a placement. (R.p. 101-102, FOF 5)
DSS’s family assessment and safety assessment reflected that but for that one incident, the family had many strengths. (R. pp. 2-6, 18-23, 24-25) In its family assessment completed on July 23, 2007, two days before the dispositional hearing, DSS declared that the mother demonstrated good coping skills. They determined that the mother had good parenting skills. DSS indicated that the mother had a strong support network. DSS also pointed out that the mother sought and utilized community resources. No needs were identified. (R.p. 24-25)
A family reunification assessment conducted by DSS dated July 17, 2007 showed that the family risk level was “moderate” which was increased to “intensive” due solely to Adam’s birth. (R.p. 18; T.p. 9, l.24 to p. 10, l.2) In addition, the assessment indicated that the parents were in moderate compliance on the visitation plan. (R.p. 19) The social worker testified that the parents had fully complied with the department’s requests. (T.p. 8, l.3-8) The mother had not missed a single visit. (T.p. 10) The visits were going well and there was good interaction between the parents and the children. (T.p. 10) The Reunification Safety Assessment identified only one factor out of nine as a safety factor: that the mother’s story of how the injury occurred was inconsistent with the expert’s opinion. (R.p. 21; T.p. 10)
The trial court adjudicated Adam neglected due to the injuries suffered by Teresa. Adam’s custody was maintained with DSS with placement in the home of Bernice Williams. The court ordered reunification efforts to cease. (R. pp. 101-108)
STANDARD OF REVIEW
A trial court's findings of fact in a disposition order are conclusive on appeal when they are supported by competent evidence. In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). If supported by some competent evidence, the findings of fact are conclusive even if some evidence supports findings to the contrary. In re B.P., 168 N.C. App. 728, ___, 612 S.E.2d 328, 331 (2005). Conclusions of law are upheld when they are supported by findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). This Court reviews the trial court's conclusions of law de novo. In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (2001), citing Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996);In re J.J., J.J., J.J., 180 N.C. App. 344, 637 S.E.2d 258 (2006).
ARGUMENT
I.THE TRIAL COURT ERRED IN GRANTING CUSTODY OF ADAM TO DSS WHEN BOTH THE FATHER AND PATERNAL GRANDMOTHER WERE AVAILABLE TO CARE FOR HIM.
(Assignment of Error Nos. 1, 11-15, 17-18, 21-24, R.p. 101-108)
The Juvenile Code has, throughout its multiple provisions, a clear cut preference for maintaining the child with a parent followed by relative placement, and subsequently non-relative placement. In this case, the trial court became involved with the family on January 4, 2007 when the original petitions on Adam’s siblings were filed. At no time from the original non-secure custody order obtained on January 4, 2007 through the adjudication and disposition on July 25, 2007, were the Father, the paternal grandmother, or other relatives explored or pursued in any serious manner.
While Adam’s appeal as to his original adjudication and disposition was pending, the court entered a permanent plan for all four children. The permanent plan for the children was remanded by order of this Court on October 7, 2008 in In re I.N.B., ___ N.C. App. ___, 666 S.E.2d 890 (2008) (unpublished). The order from the remand on the siblings’ case was reversed and remanded by this Court on October 20, 2009 in In re I.N.B., ___ N.C. App. ___, 683 S.E.2d 791 (2009)(unpublished)(attached hereto in the Appendix as App. 49-65). Pursuant to State v. Wilson, 118 N.C. App. 616, 546 S.E.2d 870 (1995), Appellant Mother respectfully requests this Court take judicial notice of materials and findings made in the most recent appeal as they pertain to this matter. Specifically, Mother asks this Court to take judicial notice that in writing the opinion, Chief Judge Martin noted that even with additional evidence elicited in the companion case, “there is no evidence to suggest that neither respondent-father, nor the paternal grandmother could be expected to prevent respondent-mother from having unsupervised contact with the children.” Judge Martin further indicated that “The finding that the children’s ‘irrational fear of water’ is based on previous instances of abuse is nothing more than speculation on the part of the trial court, as there is no evidence that indicates otherwise. Accordingly, the trial court’s findings of fact do not support its conclusion that it is in the best interests of the juveniles to be placed in a non-relative placement.” (App. 57, 59)
As part of this argument, Appellant Mother disputes findings of fact nos. 5, 23, 24, 25, 26, 27, 37, 40, 43, 44, 45, and conclusion of law no. 2.
A.The Juvenile Code places a preference for the placement of children with their relatives over non-relatives.
In 1996, in the Personal Responsibility and Work Opportunity Reconciliation Act, Congress provided that a State, as a condition for receiving federal foster care funds, must have a plan for foster care that, in pertinent part, "provides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards." 42 U.S.C. § 671(a)(19) (2003).
Consistent with this familial preference, N.C. Gen. Stat. § 7B-505 (emphasis added) specifically requires that the trial court in entering a nonsecure custody order for placement outside the home "shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home." If so, then "the court shall order placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile." Id. (emphasis added).
N.C. Gen. Stat. § 7B-506(h) (emphasis added) then provides that, following that initial order, "[a]t each hearing to determine the need for continued custody, the court shall: . . . (2) [i]nquire as to whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home." Again, "[i]f the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order temporary placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile." Id. (emphasis added).
N.C. Gen. Stat. § 7B-903 — setting out dispositional alternatives for abused, neglected, or dependent children — contains an identical provision. N.C.G.S. § 7B-903(a)(2). The Juvenile Code allows the court to use the dispositions authorized by N.C.G.S. §7B-903, “including the authority to place the juvenile in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interests of the juvenile.” This Court has held this requirement in several cases, including In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005); and most recently in an unpublished opinion, In re K.K., COA08-1473 (5 May 2009). In K.K., this Court reversed a permanency planning order by finding “that the trial court erred by failing to make sufficient findings of fact that placement with relatives would be contrary to the child’s best interest before placing K.K. with non-relative foster parents.”
Appellant Mother specifically disputes findings of fact and conclusions of law as set out more fully below, none of which support how the court considered and appropriately rejected placement of the children with the father, the paternal grandmother, or any other relative.
B.The paternal grandmother was not appropriately considered by the court as a possible placement.
Early on, during the older siblings’ case, the mother suggested the paternal grandmother as a placement alternative but this does not appear to have been explored. The only information we have available in this file is in the DSS Family Assessment of Strengths and Needs which indicates that the Mother has a strong social support network. (R.p. 24) There is no information on the grandmother’s whereabouts, whether she was interviewed, or whether a home study was conducted. In fact, none of the court reports submitted by either DSS or the GAL address the status of the grandmother or even reflect that she was consulted.
In finding of fact no. 5, which the Mother specifically disputes, the court found that paternal grandmother was not an appropriate placement finding that “the undersigned determined that the grandparent was not an appropriate placement for the siblings . . . court finds that the same reasoning should be applied to consideration of that grandparent in [Adam]’s case.” (R.p. 101-102) However, there is nothing in the record to support this finding. Furthermore, this same finding is based on the court’s recollection of what happened in the siblings’ cases which were heard during the pendency of this matter. This Court has already determined that the parallel finding in the siblings’ cases is not supported. (See In re I.N.B., App. 57)
Appellant Mother can find no support for these findings of fact as they pertain to the paternal grandmother. No testimony was presented indicating that the paternal grandmother would fail to adequately supervise the children. No evidence was presented in the form of a proposed safety plan that could not be effectuated, a safety plan that was refused, or even the slimmest of comments in any court report that would indicate that the court’s findings have ANY support.
The trial court repeatedly mentioned that it had heard all of the hearings in Adam’s siblings’ cases and was also using information from those files without specifying what documents it was relying upon. (R.p. 103, FOF 13; p. 104, FOF 14) Findings of fact numbers 15 through 29 are specifically taken from the other siblings’ files.
In findings of fact nos. 23, 24, 25 the court adopted findings from the siblings’ cases which indicated that there was an emergency need to remove the children and to place them in foster care. As previously noted, the reason for the children’s prior removal is not necessarily relevant as to why Adam could not be placed with his father or grandmother, more than six months later.
In its decision in the sibling cases, In re I.N.B., this Court specifically determined that the record did not support various findings and conclusions of law. Specifically, Chief Judge Martin writing for the unanimous panel determined that the trial court mistakenly failed to consider the father and the paternal grandmother as placement options. (App. 57)
These same mistakes were repeated by the trial court in this case, with significantly less testimony, as is evident from the mere twenty-four page transcript of the dispositional hearing held almost two years before the entry of the order under appeal.
Appellant Mother specifically disputes findings of fact no. 5, 23, 24, 25, 26, 27, 33, 37, 39, 40, 43, 44, and 45. These findings of fact correspond to the court’s belief that there was no alternative caregiver available when Adam and his siblings were removed from their mother’s care. This Court has already determined that there was no justification given as to why the other children could not have been placed with their father. (See In re I.N.B., App. 57 )
In addition, Appellant specifically disputes findings of fact 7, 8, 44 and 45 which are mixed findings of fact and conclusions of law. This Court has previously held that a determination which requires an exercise of judgment is more properly classified a conclusion of law than as a finding of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). SeeIn re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (limiting review of conclusions of law to whether they are supported by findings of fact). To the extent those findings are really conclusions of law, Appellant maintains they are not supported by the findings of fact.
C.The father was not appropriately considered by the court as a possible placement.
There was no exploration of the Father as a placement option. The Father was in Mexico at the time Teresa’s injuries were inflicted. The record is devoid as to any information with regards to why he would not be an appropriate caregiver. Although he indicated early on that he did not believe that the Mother would purposely hurt the children, there is nothing to indicate that he could not keep them safe and only allow supervised contact by the Mother.
Finding of fact no. 25 reveals that at the time of Teresa’s injury, the Father was not available as a placement option because he was in Mexico. That was in early January 2007. He was available by the time Adam was born. (R.p. 105)
The court was unduly influenced by accusations made by the foster parents that the older children were afraid of taking a bath in a bathtub. The judge made a finding that he “attache(d) great weight to the evidence that all of [Adam]’s siblings were afraid to step into a bathtub filled with bath water.” (FOF 37) The court went on to say “That neither parent has attempted to explain the fear of the bathtub shared by the oldest three children.” (FOF 40)(R.p. 106, 107) As this Court addressed in its’ recent I.N.B. decision, this finding is unsupported by the record. (App. 59)