An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1097
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     1 April 2014


IN THE MATTER OF:

                                              Chatham County
                                              Nos. 12 JA 40-42
T.W.C., M.L.N., E.J.N.



      Appeal by respondents from order entered 8 August 2013 by

Judge Beverly Scarlett in Chatham County District Court.                      Heard

in the Court of Appeals 27 February 2014.


      Holcomb & Cabe, L.L.P., by Carol J. Holcomb and Samantha H.
      Cabe, for petitioner-appellee Chatham County Department of
      Social Services.

      Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler,
      for guardian ad litem.

      Mercedes O. Chut, for respondent-appellant mother.

      Sydney Batch, for respondent-appellant father.


      CALABRIA, Judge.


      Respondent-mother          and     respondent-father         (collectively

“respondents”)      appeal     from    the   trial    court’s     order    ceasing

reunification efforts with respondents and awarding guardianship
                                     -2-
of    respondent-mother’s      child       “Thomas1”       to    his     paternal

grandparents2 and respondents’ children “Luke” and “Eliot” to

their current foster parents.            We affirm the portion of the

trial   court’s    order   regarding     Thomas      and   the    cessation     of

reunification efforts      with respondent-mother, but reverse and

remand the portions of the order which award guardianship of

Luke and Eliot to non-relative foster parents, deny visitation

to   respondent-father,     and    cease     reunification        efforts     with

respondent-father.

                             I.    Background

      On   5   September   2012,   the     Chatham    County     Department     of

Social Services (“DSS”) filed juvenile petitions alleging that

Thomas, Luke, and Eliot (collectively “the boys”) were neglected

and dependent juveniles.           The petitions alleged, inter alia,

that the boys were residing with respondents when they witnessed

a    physical     confrontation     between       respondents          and   other

individuals.      During the altercation, respondent-mother hit a

man on the head with a baseball bat.                 DSS obtained nonsecure

custody of the boys and on 21 September 2012, the trial court

ordered Luke and Eliot placed in an unlicensed foster home.                     On



1
   The parties have stipulated to pseudonyms                     for   the   minor
children involved in this case.
2
  Thomas’s father is not a party to this appeal.
                                            -3-
16 November 2012, the trial court adjudicated the boys neglected

and dependent juveniles.

    DSS retained custody of the boys after the adjudication and

through   two    review      hearings.            After    a     permanency     planning

hearing   on    25    July    2013,     the    trial      court    entered      an   order

directing DSS to cease reunification efforts with respondents

and awarding guardianship of Thomas to his paternal grandparents

and of Luke and Eliot to their foster parents.                             Respondents

appeal.

                II.    Respondent-Mother’s Separate Issues

    On    appeal,        respondent-mother             individually       raises       two

issues: (1) that portions of the trial court’s finding of fact 3

were unsupported by competent evidence; and (2) that the trial

court’s    findings          do   not       support        its     conclusion         that

reunification efforts with respondent-mother should cease.                              We

disagree with both arguments.

    “This      Court    reviews        an   order    that      ceases    reunification

efforts to determine whether the trial court made appropriate

findings, whether the findings are based upon credible evidence,

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,
                               -4-
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) (quoting In re

Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)),

aff’d per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).

    A. Finding of Fact 3

    Respondent-mother first contends that portions of finding

of fact 3 are not supported by the evidence presented at the

permanency planning hearing.   The challenged portions of this

finding are as follows:

         3. It is not possible for the juveniles to
         be returned home in the immediate future or
         within the next six (6) months and in
         support thereof, the court specifically
         finds:

         a.   Respondent mother has a history of
              mental   health   and  substance   abuse
              issues.    She has not participated in
              either substance abuse treatment or
              mental health treatment.    She reports
              that she has had two (2) appointments at
              Daymark but has no verification to
              support her attendance.    She has not
              provided a drug screen to the department
              since April 2013.

              . . .


         g. Respondent   mother  has   not  been   in
            consistent contact with the department or
                                         -5-
                her social worker.

              h. Respondent   mother  has  not   seen  her
                 children or worked her case plan in about
                 fourteen (14) weeks.

      1. Finding of Fact 3a

      Respondent-mother first challenges the court’s finding that

she has not participated in either substance abuse or mental

health treatment, noting that there was ample evidence presented

that she attended treatments for these issues.                   However, while

respondent-mother        is    correct    that     the   trial   court’s   plain

language      appears    to     suggest     that     respondent-mother     never

participated in treatment at any time, when read in context with

the remainder of the order it is clear that the court’s finding

refers only to the time period after April 2013.                 Other portions

of   the    court’s    order   include     several    more   specific   findings

which      discuss    respondent-mother’s        irregular   participation    in

substance abuse treatment programs prior to that date.                     These

other, more detailed findings adequately establish respondent-

mother’s difficulties with obtaining appropriate treatment even

if this particular challenged finding is disregarded as being

unsupported by the evidence.             Thus, regardless of whether or not

this finding is supported by the evidence, it is ultimately

immaterial to the result reached by the trial court.
                                         -6-
     2. Findings of Fact 3g-h

     With     regards     to     the     trial       court’s       other      challenged

findings,     the   evidence     presented       at    the    permanency        planning

hearing, which includes the report and testimony of the social

worker   in    charge    of    the    case,    the    testimony       of     respondent-

mother, and the         report of the children’s               guardian       ad litem,

provides sufficient support for those findings.                       The evidence at

the hearing established that after respondent-mother checked out

of   Oxford     House,     an    inpatient       substance           abuse    treatment

facility, on 22 April 2013, her contact with her social worker

became sporadic.         The social worker testified that respondent-

mother was “MIA” from 17 April to 7 May 2013 and that she failed

to attend a scheduled meeting with the social worker on 25 April

2013.    Respondent-mother contacted the social worker on 20 May

2013 and stated that the social worker was to communicate only

with her attorney from           that point forward.                 Nonetheless,      in

early June 2013, respondent-mother had her mother contact the

social worker and report that respondent-mother was at Moore

Regional      Hospital    for        substance       abuse     and     mental    health

treatment.

     Additionally,       respondent-mother            did    not     appear    for   drug

screens on 10 May 2013 and 24 June 2013.                           Respondent-mother
                                                 -7-
last visited with her children on 17 April 2013, about fourteen

weeks prior to the date of the DSS report submitted 25 July

2013.         This         evidence       was    sufficient       to    support    the      trial

court’s findings that respondent-mother had not had consistent

contact with the social worker and that she had not visited with

the    boys     or    worked       her    case    plan     in    fourteen     weeks.         This

argument is overruled.

       B. Cessation of Reunification Efforts

       Respondent-mother                next    contends     that       the   trial    court’s

findings      of      fact         do    not     support        its    determination        that

reunification efforts should cease.                      Pursuant to N.C. Gen. Stat.

§     7B-507,        the     trial       court     may     order        the   cessation        of

reunification efforts if the court makes findings that those

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.” N.C. Gen. Stat. § 7B-

507(b)(1) (2013).              The trial court made such a finding in the

instant case, and it is supported by both other findings in the

trial    court’s           order    and    by     the    evidence       presented      at     the

permanency planning hearing.                    The trial court’s findings and the

evidence      at      the     hearing          demonstrate       that    respondent-mother

lacked    reliable          housing,       that    she     did    not    provide      proof    of
                                              -8-
employment,        and    that        she    had       ongoing       problems        with       drug

addiction and mental instability which would not be resolved

within the immediate future.                       The evidence also demonstrated

that    respondent-mother             would       be    unable       to   provide      a    safe,

permanent home for the boys within a reasonable amount of time.

Based    upon   its      findings       and       the    evidence         presented        at    the

hearing,     the     trial      court       did    not       abuse    its    discretion          in

ordering that reunification efforts should cease.                             This argument

is overruled.

       Since    we       have     overruled            respondent-mother’s             separate

arguments and these are the only arguments which involve the

portion of the trial court’s order regarding Thomas, we affirm

the     trial   court’s         order       awarded          guardianship       to     Thomas’s

paternal grandparents.                In addition, we affirm the portion of

the trial court’s order which ceased reunification efforts with

respondent-mother.

                         III.    Respondents’ Joint Issues

       Respondents jointly argue that the trial court erred by

failing to place Luke and Eliot with their paternal grandmother

in    the   absence      of     any    findings         or    evidence      indicating           the

paternal grandmother was unfit or placement with her was not in

their best interests.            We agree.
                                 -9-
         In placing a juvenile in out-of-home care
         under this section, the court 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 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 placement of the juvenile
         with the relative unless the court finds
         that the placement is contrary to the best
         interests of the juvenile.

N.C. Gen. Stat. § 7B-903(a)(2)(c) (2013).        To comply with this

statute, the trial court must (1) make factual conclusions and

not simply recite evidence regarding placement with a relative,

and (2) make specific findings of fact explaining why placement

with a relative would not be in the child’s best interests if

the child is not placed with the relative.       In re L.L., 172 N.C.

App. 689, 704, 616 S.E.2d 392, 401 (2005)(reversing the award of

guardianship to non-relative foster parents for failing to meet

these requirements).

    In   the   instant   case,   the   trial   court   made   only   the

following finding concerning the potential placement of Luke and

Eliot with their paternal grandmother:

         [Respondent-father]   requests    that   his
         children be placed with his mother who
         attended the hearing and now states that she
         is willing and able to care for both boys.
         According to the Social Worker, the paternal
         grandmother originally said that she could
                                     -10-
          not take care of them as she is also taking
          care of other grandchildren.

This finding does not meet the requirements of N.C. Gen. Stat. §

7B-903 as interpreted by L.L.         It fails to determine whether the

paternal grandmother was actually willing and able to care for

the children, as she stated at the time of the hearing, and it

does not explain why placement with the paternal grandmother

would not be in Luke and Eliot’s best interests.              As a result,

the portion of the order awarding guardianship of Luke and Eliot

to non-relative foster parents must be reversed and remanded for

the required findings.

     Respondents also contend that the trial court failed to

comply with N.C. Gen. Stat. § 7B-907 and N.C. Gen. Stat. § 7B-

600(c) by failing to make findings that the non-relative foster

parents   understood       the   legal       significance     of   assuming

guardianship    and    that   they   had    the   financial   resources   to

provide for the children on a permanent basis.                Since we are

reversing and remanding the award of guardianship to the foster

parents, we need not consider this contention as it may become

moot.

               IV.    Respondent-Father’s Separate Issues

     In his individual appeal, respondent-father contends: (1)

that the trial court abused its discretion by failing to provide
                                       -11-
visitation with his children because the trial court’s findings

of fact do not support its conclusion that it is not in the

children’s best interests to visit with respondent-father; and

(2) that the trial court’s findings do not support the cessation

of reunification efforts with respondent-father.               We agree with

both contentions.

      A.    Visitation

      An order which continues placement outside a parent’s home

“shall provide for appropriate visitation as may be in the best

interests of the juvenile consistent with the juvenile’s health

and safety.”      N.C. Gen. Stat. § 7B-905.1(a) (2013).           Conversely,

the court may prohibit visitation or contact by a parent when it

is   in    the   juvenile’s   best     interests   or   consistent    with   the

juvenile’s health and safety.           See In re J.S., 182 N.C. App. 79,

86-87,     641   S.E.2d   395,   399   (2007).          We   review   an   order

disallowing visitation for abuse of discretion.                C.M., 183 N.C.

App. at 215, 644 S.E.2d at 595.

             This Court has previously held that, [i]n
             the absence of findings that the parent has
             forfeited [his or her] right to visitation
             or that it is in the child’s best interest
             to deny visitation[,] the court should
             safeguard the parent’s visitation rights by
             a provision in the order defining and
             establishing    the  time,   place[,]    and
             conditions   under  which  such   visitation
             rights may be exercised. As a result, even
                                         -12-
              if    the    trial court    determines  that
              visitation would be inappropriate in a
              particular case or that a parent has
              forfeited his or her right to visitation, it
              must still address that issue in its
              dispositional order and either adopt a
              visitation plan or specifically determine
              that such a plan would be inappropriate in
              light     of   the  specific    facts  under
              consideration.

In    re    K.C.,   199   N.C.    App.    557,   562,     681   S.E.2d      559,   563

(2009)(internal quotations and citation omitted).

       In the instant case, the sole finding of fact regarding

respondent-father is that he “is currently incarcerated and is

scheduled to be released in 2014 but could be released as early

as December 2013.”          The court report prepared by the social

worker and incorporated into the court’s order indicates that

respondent-father “appears to have a very loving and close bond

with both [sons] . . . .” The report also goes into more detail

as to why respondent-father was incarcerated.                   However, nothing

in the report suggests that the boys were harmed or placed at

risk of harm due to the conduct resulting in these convictions,

and    the    court   did   not    make    any    findings      to   that    effect.

Ultimately, the trial court’s order does not comply with N.C.

Gen. Stat. § 7B-905.1(a) in that it suspends visitation as to

respondent-father but fails to set out sufficient facts which

would      demonstrate    that    visitation     “would    be   inappropriate      in
                                            -13-
light of the specific facts under consideration.”                             K.C., 199

N.C. App. at 562, 681 S.E.2d at 563.                        Consequently, we must

reverse and remand this portion of the trial court’s order.

    B.     Cessation of Reunification Efforts

    Respondent-father            finally       argues      that     the   trial     court

failed    to     make    adequate       findings     of     fact     to   support    the

conclusion of law that reunification efforts with him should

cease.      As previously noted, the                trial court’s         only finding

regarding respondent-father was that he was incarcerated and was

scheduled to be released as early as December 2013.                           The court

report incorporated by the trial court in its order mentions the

reason for his incarceration, the fact his incarceration has

made it difficult for him to comply with his case plan, the

loving    bond    he    has    with    his    children,      his    participation     in

Narcotics      Anonymous       while   he    has    been    incarcerated,      and   the

efforts made by DSS at reunification.                      This evidence does not

support    a   finding        that    reunification        efforts    would    “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.”       N.C.   Gen.    Stat.    §    7B-507(b)(1).

Thus, the trial court abused its discretion by ordering that

reunification efforts with respondent-father should cease.                             We
                                   -14-
reverse and remand this portion of the trial court’s order as

well.

                             V.   Conclusion

     We affirm the portions of the order ceasing reunification

efforts   with   respondent-mother    and   awarding   guardianship   of

Thomas to his paternal grandparents.        We reverse the portions of

the order awarding guardianship of Luke and Eliot to the foster

parents, denying visitation to respondent-father, and           ceasing

reunification    efforts   with   respondent-father.    We   remand   for

further proceedings consistent with this opinion.

     Affirmed in part; reversed and remanded in part.

     Judges ELMORE and STEPHENS concur.

     Report per Rule 30(e).
