             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-80

                                Filed: 5 July 2017

Cumberland County, No. 14 JA 12-13

IN THE MATTER OF: K.L. and R.E.


      Appeal by respondent from order entered 12 May 2016 by Judge Toni S. King

in Cumberland County District Court. Heard in the Court of Appeals 5 June 2017.


      Christopher L. Carr for petitioner Cumberland County Department of Social
      Services and Beth A. Hall for guardian ad litem (joint brief).

      Appellate Defender’s Office, by Assistant Appellate Defender Annick Lenoir-
      Peek, for respondent-appellant.


      TYSON, Judge.


      Respondent-mother    appeals   from   an    order   entered,   which   removed

reunification as a concurrent permanent plan for her children, K.L. and R.E. We

reverse and remand.

                                  I. Background

      This case returns to the Court for a second time. In re K.L., __ N.C. App. __,

778 S.E.2d 104, 2015 WL 4898180 (unpublished). Cumberland County Department

of Social Services (“DSS”) filed a petition, which alleged Respondent-mother’s

children A.J., K.L. and R.E. were seriously neglected and dependent juveniles on 14

January 2014.
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                                 Opinion of the Court



      The allegations of neglect were asserted after DSS received reports alleging

Respondent-mother had abused her autistic grandson, while he was in her care, and

that her adult children also reported that she abused them as children.         DSS

voluntarily dismissed the allegations of serious neglect and dependency. Pursuant to

stipulations between the parties, the trial court adjudicated the juveniles to be

neglected at a hearing on 9 June 2014. A.J. has reached the age of majority and is no

longer part of this case.

      The trial court’s disposition order retained physical and legal custody of the

juveniles with DSS, and decreed for DSS to continue to make reasonable efforts

towards reunification of the children with Respondent-mother. Following a hearing

on 1 December 2014, the court entered a permanency planning order (“15 January

2015 order”). The court concluded the permanent plan was to place K.L. and R.E.

into the custody of their married adult sibling (“Ms. E.”)       Respondent-mother

appealed to this Court.

      In her initial appeal, Respondent-mother argued the trial court had improperly

ceased reunification efforts. She asserted no appropriate findings were made, as

required by N.C. Gen. Stat. § 7B-906.1(e)(1), to explain why it would not be possible

for K.L. and R.E. to be returned to her custody within the next six months. She also

asserted the court had not verified whether Ms. E. understood the legal significance




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of the custodianship pursuant to N.C. Gen. Stat. § 7B-906.1(j). In re K.L., 2015 WL

4898180 at *4-5.

       This Court held that the order appealed from did not show the trial court had

ceased reunification efforts.   The trial court’s order specifically directed DSS to

continue efforts to eliminate the need for continued placement of the juveniles outside

of the home and DSS should continue efforts to reunify the juveniles with

Respondent. Id. at *4.

       This Court further held the trial court’s 15 January 2015 order made

minimally sufficient findings to comply with N.C. Gen. Stat. § 7B-906.1(e)(1) and (j).

The case was remanded for the trial court to enter a specific visitation schedule with

the juveniles. Id. at *5-8.

       On 19 January 2016, a permanency planning hearing was held. On 12 May

2016, the court entered a subsequent permanency planning order which listed a

visitation schedule, as required by this Court upon remand. The court also found

that reasonable efforts to reunify the family would be futile, that the permanent plan

was “previously achieved” and that legal and physical custody of K.L. and R.E. should

remain with Ms. E. Respondent-mother again appeals to this Court.

                                   II. Jurisdiction

       Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(5)

(2015).



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                                       III. Issues

      Respondent-mother asserts the trial court improperly ceased reunification

efforts and failed to follow statutory requirements, prior to granting permanent

custody to Ms. E. Respondent-mother also argues the court violated the requirements

of N.C. Gen. Stat. § 7B-906.1(n) and N.C. Gen. Stat. § 7B-905.1(d).

                               IV. Standard of Review

      “This Court reviews an order that ceases reunification efforts to determine

whether the trial court made appropriate findings, . . . 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). “An abuse of discretion occurs when the trial court’s ruling is so arbitrary

that it could not have been the result of a reasoned decision.” In re N.G., 186 N.C.

App. 1, 10–11, 650 S.E.2d 45, 51 (2007) (citation and internal quotation marks

omitted), affirmed per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008). The trial court’s

conclusions of law are reviewed de novo on appeal. In re D.H., 177 N.C. App. 700, 703,

629 S.E.2d 920, 922 (2006) (citation omitted).

                           V. Ceasing Reunification Efforts

                    A. Purpose of Permanency Planning Hearing

      Our Juvenile Code provides:

             Review hearings after the initial permanency planning
             hearing shall be designated as subsequent permanency


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             planning hearings. The subsequent permanency planning
             hearings shall be held at least every six months thereafter
             or earlier as set by the court to review the progress made
             in finalizing the permanent plan for the juvenile, or if
             necessary, to make a new permanent plan for the juvenile.

N.C. Gen. Stat. § 7B-906.1(a) (2016).

      This Court affirmed the 15 January 2015 order, which included a finding that

DSS should continue reunification efforts and that custody with a relative to be the

permanent plan. This Court concluded the trial court’s permanency planning order

did not cease reunification efforts. In re K.L, 2015 WL 4898180 at *4.

                             B. Statutory Requirements

                          1. N.C. Gen. Stat. § 7B-906.1(d)

      At each permanency planning hearing, the trial court “shall consider the

following criteria and make written findings regarding those that are relevant:”

                   (1) Services which have been offered to reunite the
                   juvenile with either parent whether or not the
                   juvenile resided with the parent at the time of
                   removal or the guardian or custodian from whom the
                   child was removed.

                   (2) Reports on visitation that has occurred and
                   whether there is a need to create, modify, or enforce
                   an appropriate visitation plan in accordance with
                   G.S. 7B-905.1.

                   (3) Whether efforts to reunite the juvenile with
                   either parent clearly would be unsuccessful or
                   inconsistent with the juvenile’s health or safety and
                   need for a safe, permanent home within a reasonable
                   period of time. The court shall consider efforts to


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                    reunite regardless of whether the juvenile resided
                    with the parent, guardian, or custodian at the time
                    of removal. If the court determines efforts would be
                    unsuccessful or inconsistent, the court shall consider
                    other permanent plans of care for the juvenile
                    pursuant to G.S. 7B-906.2.

                    (4) Reports on the placements the juvenile has had,
                    the appropriateness of the juvenile’s current foster
                    care placement, and the goals of the juvenile’s foster
                    care plan, including the role the current foster
                    parent will play in the planning for the juvenile.

                    (5) If the juvenile is 16 or 17 years of age, a report on
                    an independent living assessment of the juvenile
                    and, if appropriate, an independent living plan
                    developed for the juvenile.

                    (6) When and if termination of parental rights
                    should be considered.

                    (7) Any other criteria the court deems necessary.

N.C. Gen. Stat. § 7B-906.1(d) (2016) (emphasis supplied).

      The trial court’s order is required to “make [it] clear that the trial court

considered the evidence in light of whether reunification 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. The trial court’s written findings must address

the statute’s concerns.” In re L.M.T., 367 N.C. 165, 167–68, 752 S.E.2d 453, 455 (2013)

(quotation marks omitted).

      At the 19 January 2016 permanency planning hearing, DSS social worker

Stacy Williams testified and DSS offered her report into evidence. Ms. Williams


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testified her recommendation was to close the case. She admitted DSS had not been

working toward the juveniles’ reunification with Respondent-mother. Ms. Williams

acknowledged DSS had offered no services to Respondent-mother, since the entry of

her prior notice of appeal in January 2015.

      The court made no specific inquiry or findings regarding visitations which had

already occurred.   The DSS social worker testified only that the agreed upon

visitation schedule included unsupervised overnight visits.

      The trial court made the following finding:

             14. That the Court finds that reasonable efforts to reunify
             the family would be futile and inconsistent with the
             juveniles health, safety, and need for a safe, permanent
             home within a reasonable period of time.

No record evidence shows any basis to support such a finding.

      The trial court found Respondent-mother had completed “many Court ordered

services,” except family therapy, which had not been offered, prior to the permanency

planning hearing. The court also found, “there has not be a substantial change in

circumstances since the entry of the December 1, 2014 Permanency Planning Order.”

      Further hearings had been continued seven times since the 1 December 2014

hearing. No permanency planning hearing had been held since 1 December 2014.

The court released the guardian ad litem on 8 December 2014, prior to Respondent’s

entry of her notice of appeal from the 15 January 2015 order.

      DSS made no efforts to recommend or provide services under the ordered


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concurrent plan of reunification. No evidence supports and DSS cannot now assert

that a change in the permanent plan was justified, based upon Respondent-mother’s

failure to complete steps necessary to reunify with her children, when she had

completed all required steps and completion of the final family therapy step was

denied to her.

      The order addresses the success of the juveniles’ placement with their sibling,

Ms. E.   The remaining statutory factors in N.C. Gen. Stat. § 7B-906.1(d) are

inapplicable to the present case. However, the court’s findings do not satisfy the

multiple layers of inquiry and conclusions as are required by our Juvenile Code.

      We reject DSS’ argument that by adopting the findings in the previous court

orders, the trial court accomplished its statutory duty of making findings pursuant

to N.C. Gen. Stat. § 7B-906.1(d). These prior findings were the basis of the disposition

order, which provided custody with Ms. E. as the primary plan, and also required

reunification efforts with Respondent-mother to continue. To subsequently remove

reunification as a concurrent permanent plan requires properly admitted evidence to

support findings of fact to allow the court to conclude “efforts to reunite the juvenile

with either parent clearly would be futile or inconsistent with the juvenile’s health or

safety and need for a safe, permanent home within a reasonable period of time.” N.C.

Gen. Stat. § 7B–906.1(d)(3).

      Upon remand, no additional evidence was presented or admitted to support



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the trial court’s finding that “efforts to reunite the family would be unsuccessful or

inconsistent with the juvenile’s health or safety, and need for a safe, permanent home

within a reasonable period of time.” Without additional evidence and proper findings

of fact in support, the trial court’s conclusion to cease reunification efforts must be

vacated.

                           2. N.C. Gen. Stat. § 7B-906.1(e)

             At any permanency planning hearing where the juvenile is
             not placed with a parent, the court shall additionally
             consider the following criteria and make written findings
             regarding those that are relevant:

                    (1) Whether it is possible for the juvenile to be placed
                    with a parent within the next six months and, if not,
                    why such placement is not in the juvenile’s best
                    interests.

                    (2) Where the juvenile’s placement with a parent is
                    unlikely within six months, whether legal
                    guardianship or custody with a relative or some
                    other suitable person should be established and, if
                    so, the rights and responsibilities that should
                    remain with the parents.

                    (3) Where the juvenile’s placement with a parent is
                    unlikely within six months, whether adoption
                    should be pursued and, if so, any barriers to the
                    juvenile’s adoption.

                    (4) Where the juvenile’s placement with a parent is
                    unlikely within six months, whether the juvenile
                    should remain in the current placement, or be placed
                    in another permanent living arrangement and why.

                    (5) Whether the county department of social services


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                     has since the initial permanency plan hearing made
                     reasonable efforts to implement the permanent plan
                     for the juvenile.

                     (6) Any other criteria the court deems necessary.

N.C. Gen. Stat. § 7B-906.1(e) (2015) (emphasis supplied).

         The trial court concluded that return of the juvenile to Respondent-mother’s

custody “would be contrary to the welfare and best interest of the juvenile[s].”

Respondent-mother argues the trial court failed to make the relevant inquiries

required by N.C. Gen. Stat. § 7B-901.1(e) when a child is not placed with a parent.

         This Court addressed a similar argument in Respondent’s previous appeal. We

held that evidence in the record minimally supported the trial court’s finding, “[t]hat

return of the juveniles would be contrary to the welfare and best interests of the

juveniles inasmuch as the juveniles are in need of more adequate care and

supervision than can be provided by [Respondent-mother] at this time and

[Respondent-mother is] in need of additional services.” In re K.L., 2015 WL 4898180

at *5.

         This Court’s prior opinion further specified that Respondent-mother’s

psychological assessment recommended she participate in family counseling and that

the juveniles’ therapist should determine when such therapy was appropriate. In

December 2014, DSS informed the court that the juveniles’ therapist believed “that

the children were not ready to engage in family therapy at this time.”



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      At the January 2016 hearing, DSS social worker Williams testified “the last

service the Respondent-mother was supposed to complete” was family therapy. Ms.

Williams testified she had “spoken to the therapist on several different occasions” and

the therapist indicated “it was not a good time to have [Respondent-mother] in

therapy sessions.” She also stated the juveniles were no longer in regular therapy

sessions. She indicated the therapist “really didn’t have an opinion” on the children

spending more time with their mother, because she had not met Respondent-mother.

      In the order currently before us, the trial court found the juveniles’ therapist

had “discharged” them from therapy services, while also finding that it had previously

“found that Respondent-mother and the juveniles should engage in therapy.”

      While this “discharge” of the juveniles without the family therapy having

actually occurred is questionable, this finding provides minimal support for the

conclusion that returning K.L. and R.E. to Respondent-mother within six months

may not have been possible or contrary to their best interests. Upon remand and at

future permanency planning hearings, the trial court should further inquire whether

family therapy remains necessary. If not, it should be removed from the plan as a

step Respondent-mother is to accomplish.

                           3. N.C. Gen. Stat. § 7B-906.1(i)




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      Respondent asserts the trial court applied the incorrect standard in assessing

whether or not to change legal custody from Ms. E. back to Respondent-mother. As

this issue needs to be addressed on remand, we agree.

      Here, the trial court found there had not been “a substantial change in

circumstances” since the 15 January 2015 order providing Ms. E. primary custody of

K.L. and R.E. “Substantial change in circumstances” is the legal test to review a

change of custody between two parties in a Chapter 50 civil custody action.

      DSS argues the present case is controlled by In re A.C., __ N.C. App. __, 786

S.E.2d 728 (2016). In the case of In re A.C., the trial court had previously, by written

order, awarded the respondent-mother sole legal and physical custody of A.C. Id. at

__, 786 S.E.2d at 733. In the same written order, the court had waived further review

hearings and relieved DSS of its responsibilities. Id. at __, 786 S.E.2d at 732.

       The trial court in In re A.C. had not entered a civil custody order pursuant to

N.C. Gen. Stat. § 7B–911, but expressly retained juvenile court jurisdiction pursuant

to N.C. Gen. Stat. § 7B–201. Id. at __, 786 S.E.2d at 733.

      After receiving sole custody, the respondent-mother left A.C. in the care of

A.C.’s aunt. The aunt filed a “Motion to Reopen, Motion to Intervene, and Motion in

the Cause for Child Custody” within the juvenile proceeding. The motion alleged “a

substantial change in circumstances” since the earlier order had granted respondent-

mother sole custody of A.C. Id. at __, 786 S.E.2d at 732. The court conducted a



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hearing on the aunt’s motion to modify custody and entered a “Review Order”

granting aunt “the sole legal and physical custody of [A.C.]” Id. at __, 786 S.E.2d at

732. Our Court held “the court was obliged to resolve a custody dispute between a

parent and a nonparent in the context of a proceeding under Chapter 7B.” Id. at __,

786 S.E.2d at 733.

      Because the trial court had allowed A.C.’s aunt and caretaker to intervene and

seek custody of A.C. from the respondent-mother after custody had been awarded to

the respondent-mother, the appellate court’s review of the trial court’s review order

awarding custody to the aunt as intervenor also required “recourse to legal principles

typically applied in custody proceedings under N.C. Gen. Stat. Chapter 50, in addition

to those governing abuse, neglect, and dependency proceedings under Chapter 7B.”

Id. at __, 786 S.E.2d at 733.     “[O]nce the custody of a minor child is judicially

determined, that order of the court cannot be modified until it is determined that (1)

there has been a substantial change in circumstances affecting the welfare of the

child; and (2) a change in custody is in the best interest of the child.” Id. at __, 786

S.E.2d at 742 (citing Hibshman v. Hibshman, 212 N.C. App. 113, 121, 710 S.E.2d 438,

443 (2011) (citation and ellipsis omitted)).

      The trial court in In re A.C., was controlled by N.C. Gen. Stat. § 7B-1000(a)

(2015) which provides that the “court may modify or vacate the order in light of

changes in circumstances or the needs of the juvenile.” See id. at __, 786 S.E.2d at



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734. This Court held “the burden fell upon intervenor to demonstrate ‘changes’

warranting a modification of the custody arrangement established by the . . . review

order.” Id. at __, 786 S.E.2d at 734. Further, “such changes must have either occurred

or come to light subsequent to the establishment of the status quo which [aunt]

sought to modify.” Id. at __, 786 S.E.2d at 734 (citation omitted).

      The trial court in In re A.C. had previously relieved DSS of further duties and

waived further review hearings. The court modified its previous award of custody in

response to a “Motion to Reopen, Motion to Intervene and Motion in the Cause.” Id.

at __, 786 S.E.2d at 732.

      Here, the parties were before the trial court at a subsequent permanency

planning review hearing after remand from this Court.             At this subsequent

permanency planning hearing, the trial court appears to have attempted to cease

reunification efforts based upon a lack of substantial change in circumstances since

the entry of the previous order.       The analysis in In re A.C. is inapplicable.

Respondent-mother was not required to show a substantial change in circumstances

to retain the concurrent plan of reunification.

      This Court’s decision in In re J.S., __ N.C. __, 792 S.E.2d 861 (2016) is relevant

here. “The plain language of § 7B–1000(a) states that it is applicable to an order

entered after a review hearing at which the trial court considers whether to modify




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or vacate a previously entered order ‘in light of changes in circumstances or the needs

of the juvenile.’” Id. at __, 792 S.E.2d at 863. The permanency planning order in In

re J.S. stated it was “entered pursuant to N.C. Gen. Stat. § 7B–906.1.” Id. at __, 792

S.E.2d at 864. We held “that entry of a permanency planning order is governed by

N.C. Gen. Stat. § 7B–906.1 and not by N.C. Gen. Stat. § 7B–1000.” Id. at __, 792

S.E.2d at 864. Here the court’s order is titled, “Permanency Planning Order” and

indicates the “hearing is being held pursuant to N.C. Gen. Stat. § 7B-906.1(e).”

      At a permanency planning hearing:

             (i) The court may maintain the juvenile’s placement under
             review or order a different placement, appoint a guardian
             of the person for the juvenile pursuant to G.S. 7B-600, or
             order any disposition authorized by G.S. 7B-903, including
             the authority to place the child 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.

N.C. Gen. Stat. § 7B-906.1(i) (2016).

      Neither Respondent-mother nor DSS need show a “substantial change in

circumstances” to seek modification under the statute. The trial court was required

to address custody and reunification as permanent plans and to consider the best

interest of the juveniles. The trial court found it was “in the best interests of [the

juveniles] that permanent legal and physical custody remain” with Ms. E.

      The trial court conflated the requirements of Chapters 50 and 7B and included

an unnecessary and improper test of “substantial change in circumstances” at this



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stage of permanency planning. It is unclear from the brief transcript and minimal

findings whether the inclusion of this erroneous standard impacted the permanent

plan ordered by the court. Upon remand the court is to review the permanent plans

of custody with a relative and reunification with Respondent-mother under only the

correct statutory standard set forth in § 7B-906.1(i).

                            4. N.C. Gen. Stat. § 7B-906.2

      Respondent-mother contends the trial court failed to make the inquiry

required in N.C. Gen. Stat. § 7B-906.2. DSS concedes N.C. Gen. Stat. § 7B-906.2 is

applicable since the case was pending on 1 October 2015.

                                   a. § 7B-906.2(b)

      N.C. Gen. Stat. § 7B-906.2(b) requires reunification remain a primary or

secondary plan, unless the court makes the requisite findings of fact showing that

reunification efforts clearly would be unsuccessful or would be inconsistent with the

juvenile’s health or safety. N.C. Gen. Stat. § 7B-906.2(b) (2016). DSS argues the trial

court’s order complied with § 7B-906.2(b) by incorporating by reference the findings

contained in previous orders.

      Rule 52 of the Rules of Civil Procedure requires that in all actions tried upon

the facts without a jury, “the court shall find the facts specially and state separately

its conclusions of law . . . .” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2015). The




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documents incorporated may support a finding of fact; however, merely incorporating

the documents by reference is not a sufficient finding of fact.

      “[A] proper finding of facts requires a specific statement of the facts on which

the rights of the parties are to be determined, and those findings must be sufficiently

specific to enable an appellate court to review the decision and test the correctness of

the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).

      Findings of fact must show that the trial court has reviewed the evidence

presented and found the facts through a process of logical reasoning. In re O.W., 164

N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004) (“the trial court must, through

‘processes of logical reasoning,’ based on the evidentiary facts before it, ‘find the

ultimate facts essential to support the conclusions of law.’”) (quoting In re Harton,

156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)).

      This Court has repeatedly stated that “the trial court’s findings must consist

of more than a recitation of the allegations” contained in the juvenile petition. In re

O.W., 164 N.C. App. at 702, 596 S.E.2d at 853; Coble v. Coble, 300 N.C. 708, 712, 268

S.E.2d 185, 189 (1980) (“The requirement for appropriately detailed findings is thus

not a mere formality or a rule of empty ritual; it is designed instead ‘to dispose of the

issues raised by the pleadings and to allow the appellate courts to perform their

proper function in the judicial system.’” (citation omitted)).




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      Here, the trial court’s unsupported conclusory statement that “reasonable

efforts to reunify the family would be futile and inconsistent with the juveniles’ health

[or] safety” does not meet the statutory or prior case law’s requirements and must be

vacated.

                                    b. § 7B-906.2(d)

      N.C. Gen. Stat. § 7B-906.2(d) requires the court make specific written findings

as to each of the following, “which shall demonstrate [the parent’s] lack of success”:

             (1) Whether the parent is making adequate progress within
             a reasonable period of time under the plan.

             (2) Whether the parent is actively participating in or
             cooperating with the plan, the department, and the
             guardian ad litem for the juvenile.

             (3) Whether the parent remains available to the court, the
             department, and the guardian ad litem for the juvenile.

             (4) Whether the parent is acting in a manner inconsistent
             with the health or safety of the juvenile.

      Here, the trial court’s order contains a finding of fact that prior to the initial

appeal, Respondent-mother completed many “Court ordered services.”             No other

finding mentions Respondent-mother’s progress, shortcomings, or failures to

accomplish, with respect to the permanent plan. Unchallenged testimony shows DSS

had offered no assistance or services to Respondent-mother since her notice was filed

in the prior appeal.




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      The court’s order makes no mention of Respondent-mother’s cooperation or

lack of cooperation with DSS. Ms. Williams, DSS’ only witness at the hearing, offered

no testimony in this regard.

      Respondent-mother testified at the hearing she remained willing to “do

whatever that was asked of her” and that she had completed all of the other services

and steps DSS had asked her to complete. She testified she had not been asked to do

anything since January 2015. DSS did not cross-examine Respondent-mother nor

offer any rebuttal evidence to refute her testimony.

                                   c. § 7B-906.2(c)

      N.C. Gen. Stat. § 7B-906.2(c) provides that “[i]n every subsequent permanency

planning hearing,” “the court shall make written findings” about the efforts DSS has

made towards achieving the primary and secondary plans in effect prior to the

hearing. The trial court made no findings of whether DSS had made reasonable

efforts to reunite Respondent with her children.

      The trial court’s order “must make [it] clear that the trial court considered the

evidence in light of whether reunification 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.” In re A.E.C., 239 N.C. App. 36, 42, 768 S.E.2d 166, 170

(2015), cert. allowed, __ N.C.__, 796 S.E.2d 791 (2017). While the written findings




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do not need to quote the exact language of the statute, the trial “court’s written

findings must address the statute’s concerns.” Id.

      As stated previously, Ms. Williams testified DSS had provided no reunification

efforts following the 15 January 2015 order.            The record on appeal shows DSS

completely disregarded its statutory duty to “finalize the primary and secondary”

plans until relieved by the trial court. See N.C. Gen. Stat. § 7B-906.2(b).

      This Court cannot infer from the minimal findings that reunification efforts

would be futile or inconsistent with the juveniles’ health or safety. See In re A.E.C.,

239 N.C. App. at 43, 768 S.E.2d at 171. See also, In re T.W. __ N.C. App. __, __, 796

S.E.2d 792, 795-96 (2016) (holding “if reunification efforts are not foreclosed as part

of the initial disposition pursuant to N.C. Gen. Stat. § 7B–901(c), the court may

eliminate reunification as a goal of the permanent plan only upon a finding made

under N.C. Gen. Stat. § 7B–906.2(b). Only when reunification is eliminated from the

permanent plan is the department of social services relieved from undertaking

reasonable efforts to reunify the parent and child.”).

      The trial court’s conclusion of law that reunification would be futile is error

without any evidence in the record to support the findings of fact. In re J.T., __ N.C.

__, __, 796 S.E.2d 534, 536 (2017). We reverse the trial court’s order as it relates to

cessation of reunification efforts.

                         C. Constitutionally Protected Status



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                                  IN RE: K.L & R.E.

                                  Opinion of the Court



      Respondent also argues the trial court’s conclusion of law that she is unfit, has

acted inconsistently with her constitutionally protected status as a parent, and has

abdicated her responsibilities as a parent is completely unsupported by any finding

of fact. We agree.

      The trial court must clearly “address whether respondent is unfit as a parent

or if her conduct has been inconsistent with her constitutionally protected status as

a parent, should the trial court . . . consider granting custody or guardianship to a

nonparent.” In re P.A., 241 N.C. App. 53, 66–67, 772 S.E.2d 240, 249 (2015).

      Findings in support of the conclusion that a parent acted inconsistently with

the parent’s constitutionally protected status are required to be supported by clear

and convincing evidence. See Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503

(2001) (holding that “a trial court’s determination that a parent’s conduct is

inconsistent with his or her constitutionally protected status must be supported by

clear and convincing evidence” (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71

L. Ed. 2d 599, 603 (1982)).

      “The clear and convincing standard requires evidence that should fully

convince. This burden is more exacting than the preponderance of the evidence

standard generally applied in civil cases, but less than the beyond a reasonable doubt

standard applied in criminal matters.” In re A.C., __ N.C. at __, 786 S.E.2d at 734




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                                    IN RE: K.L & R.E.

                                    Opinion of the Court



(citing Scarborough v. Dillard’s, Inc., 363 N.C. 715, 721, 693 S.E.2d 640, 643 (2009),

cert. denied, 563 U.S. 988, 179 L.Ed.2d 1211 (2011)).

       This Court’s inquiry must be “whether the evidence presented is such that a

[fact-finder] applying that evidentiary standard could reasonably find the fact in

question.” Id. at __, 786 S.E.2d at 734 (internal quotation marks and citations

omitted).

       No findings of fact in the trial court’s order addresses, whether Respondent-

mother was unfit or how she was acting inconsistently with her protected status as a

parent at the time of the hearing. The trial court’s conclusion is unsupported by

findings of fact.

       We reverse the order awarding permanent custody to Ms. E. and remand.

Upon remand, the district court must “address whether respondent is unfit as a

parent or if her conduct has been inconsistent with her constitutionally protected

status as a parent.” In re P.A., 241 N.C. App. at 66, 772 S.E.2d at 249. In light of the

lack of any services offered by DSS since Respondent-mother’s notice in the prior

appeal, further evidence should be taken and proper findings of fact supported by the

required evidentiary standard and burden must be made to support the conclusions

of law. See id.

                    VI. N.C. Gen. Stat. §§ 7B-906.1(n) and 7B-905.1(d)




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                                   IN RE: K.L & R.E.

                                   Opinion of the Court



      Respondent-mother argues the trial court committed reversible error when it

waived holding further reviews. We agree.

      The trial court may not waive permanency planning hearings unless “the court

finds by clear, cogent, and convincing evidence each of the following”:

             (1) The juvenile has resided in the placement for a period
             of at least one year.

             (2) The placement is stable and continuation of the
             placement is in the juvenile’s best interests.

             (3) Neither the juvenile’s best interests nor the rights of
             any party require that review hearings be held every six
             months.

             (4) All parties are aware that the matter may be brought
             before the court for review at any time by the filing of a
             motion for review or on the court’s own motion.

             (5) The court order has designated the relative or other
             suitable person as the juvenile’s permanent custodian or
             guardian of the person.

N.C. Gen. Stat. § 7B-906.1(n) (2016) (emphasis supplied).

      Our statutes and cases require the trial court to address all five criteria, make

findings of fact to support its conclusion, and hold its failure to do so is reversible

error. In re P.A., 241 N.C. App. at 66, 772 S.E.2d at 249 (“The trial court must make

written findings of fact satisfying each of the enumerated criteria listed in N.C. Gen.

Stat. § 7B–906.1(n), and its failure to do so constitutes reversible error.”). See also In




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                                     IN RE: K.L & R.E.

                                     Opinion of the Court



re L.B., 184 N.C. App. 442, 447, 646 S.E.2d 411, 413–14 (2007) (construing

predecessor statute, N.C. Gen. Stat. § 7B–906(b) (2005)).

       DSS concedes the trial court failed to comply with these mandatory provisions

of the statute. DSS asserts even though the exact language was not set forth in the

court’s order, “it is clear that it was the intent of the trial court.” It is not the role of

the appellate court to try to interpret “the intent of the trial court.”

       The trial court failed to specifically address whether the juveniles best

interests or a right of a party required reviews every six months under the third prong

of § 7B-906.1(n) and failed to make any finding at all regarding the fourth

requirement. That portion of the trial court’s order purporting to end judicial review

hearings in this case is reversed for lack of supported and written findings of fact on

all five criteria set forth in N.C. Gen. Stat. § 7B-906.1(n).

                                     VII. Conclusion

       The Juvenile Code’s requirements must be followed prior to making a

supported conclusion whether to grant Ms. E. permanent custody of K.L. and R.E.

We reverse and remand for additional findings in accordance with N.C. Gen. Stat. §

7B-906.2 before reunification with Respondent-mother as a goal of the permanent

plan can be eliminated.




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                                 IN RE: K.L & R.E.

                                 Opinion of the Court



      Upon remand, the trial court must also make inquiry and enter necessary

findings according to N.C. Gen. Stat. §§ 7B-906.1(n) and 905.1(d) before further

review hearings may be waived.

      The order appealed from is vacated in part and reversed in part. This cause is

remanded to the district court for further proceedings as are consistent with this

opinion. It is so ordered.

      VACATED IN PART; REVERSED IN PART AND REMANDED.

      Chief Judge McGEE and Judge INMAN concur.




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