An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-291
                         NORTH CAROLINA COURT OF APPEALS

                                  Filed: 15 July 2014


IN THE MATTER OF:                               Stokes County
A.A.                                            Nos. 11 JA 27-28
L.A.




        Appeal by respondent from orders entered 26 April 2013 and

15     October   2013     by   Judge   Angela     Puckett    in    Stokes   County

District Court.         Heard in the Court of Appeals 30 June 2014.


        Administrative Office of the Courts, by Appellate Counsel
        Tawanda N. Foster, for guardian ad litem.

        Mary McCullers Reece for respondent-appellant father.


        ELMORE, Judge.


        Respondent-father appeals from two orders.                The first order

relieved the Stokes County Department of Social Services (“DSS”)

from further efforts toward reunification as to minor children

A.A.     (“Adam”)   and    L.A.    (“Lisa”).1      The   second    order    awarded

guardianship of the minor children to their maternal aunt and

uncle, Mr. and Mrs. A.            Respondent-father preserved his right to

1
    We use pseudonyms to protect the children’s privacy.
                                       -2-
appeal the order ceasing reunification efforts and filed notice

of appeal from both orders.           See N.C. Gen. Stat. §§ 7B-507(c),

7B-1001(a)(4), (5)b., (b) (2013).

                          I.   Procedural History

       At the time of his birth in May 2008, Adam tested positive

for    opiates,   cocaine,     and    amphetamines.       Lisa     also    tested

positive for opiates and cocaine when she was born in April

2011.    During its investigation of the family in May 2011, DSS

conducted a pill count of respondent-father’s Vicodin, Flexeril,

and Adderall prescriptions and found that “all medication [was]

short of the recommended dosage.”               On 13 May 2011, respondent-

father refused to submit to a random drug screen requested by

DSS and exhibited symptoms of intoxication.

       On 6 June 2011, DSS obtained non-secure custody of Adam and

Lisa    and   filed   petitions2     alleging    that   they    were   neglected

juveniles as defined by N.C. Gen. Stat. § 7B-101(15) (2013).

The trial court entered adjudications of neglect on 8 November

2011.     Respondent-mother        stipulated    that   her    substance    abuse

prevented her from caring for the children.                   Respondent-father

was incarcerated for defrauding a drug screen while on probation




2
 We note the petition filed in 11 JA 28 is not included in the
record on appeal.
                                            -3-
in September 2011.            He was released from prison on 27 February

2012, and signed a case plan with DSS on 9 March 2012.

    The        trial     court      ceased      reunification         efforts        as     to

respondent-mother on 19 April 2012.                    Respondent-father worked on

his case plan by visiting with the children, obtaining stable

housing and employment, complying with random drug screens, and

attending       substance        abuse     treatment         and     anger     management

counseling with John Pulliam of Choose Life Addiction Recovery

Services.       Following a review hearing on 20 December 2012, the

trial court authorized a trial placement                           of the children          in

respondent-father’s           home.        In   response       to    the     guardian       ad

litem’s report that respondent-father had allowed respondent-

mother    to    speak    to    Adam      and    Lisa    by    telephone,       the    court

expressly forbade any contact between the children and their

mother.

    After a review hearing on 21 March 2013, the trial court

entered an order terminating the children’s trial placement and

relieving DSS of further efforts to reunify the children with

respondent-father.            The     trial     court    also       held   a   permanency

planning hearing on 5 September 2013 and entered an order on 15

October   2013,        changing     Adam     and   Lisa’s      permanent       plan       from

reunification          with    respondent-father             to      guardianship          and
                                              -4-
awarding guardianship of the children to their maternal aunt and

uncle, Mr. and Mrs. A.

                        II. Ceasing Reunification Efforts

      On appeal, respondent-father claims that the trial court

erred in ceasing reunification efforts under N.C. Gen. Stat. §

7B-507(b)(1) (2013).          He contends that many of the trial court’s

findings of fact           in support of its decision constitute mere

recitations       of    witness     testimony         or   are    unsupported     by   the

evidence.      The remaining findings, respondent-father argues, are

insufficient       to     support       the    trial       court’s      conclusion     that

further reunification “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).

      “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,

213, 644 S.E.2d 588, 594 (2007) (citation omitted).                           Under N.C.

Gen. Stat. § 7B-507(b)(1) (2013), “[a] trial court may cease
                                          -5-
reunification efforts upon making a finding that further efforts

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[.]”               Id. at 214, 644 S.E.2d at 594

(quotation   omitted).           Though    characterized    as   a   finding   or

“‘ultimate finding[,]’ the determination that grounds exist to

cease reunification efforts under N.C.G.S. § 7B-507(b)(1) is in

the nature of a conclusion of law that must be supported by

adequate findings of fact.”           In re E.G.M., __ N.C. App. __, __,

750 S.E.2d 857, 867 (2013) (quoting In re I.R.C., 214 N.C. App.

358, 363, 714 S.E.2d 495, 499 (2011); citing In re I.K., __ N.C.

App. __, __, 742 S.E.2d 588, 595 (2013)).

    We conclude that the review order entered on 26 April 2013

lacks sufficient findings of fact to support the trial court’s

ultimate finding under N.C. Gen. Stat. § 7B-507(b)(1).                       “[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).          This Court has        repeatedly emphasized        that

“‘[r]ecitations     of     the     testimony    of   each    witness    do     not
                                           -6-
constitute findings of fact by the trial judge, because they do

not reflect a conscious choice between the conflicting versions

of the incident in question which emerged from all the evidence

presented.’”       Moore v. Moore, 160 N.C. App. 569, 571-72, 587

S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505

n.1, 313 S.E.2d 193, 195 n.1 (1984)) (emphasis in original).

      It    appears    that       the     trial    court’s       decision     to    cease

reunification      efforts     was      based      primarily      on     evidence    that

respondent-father       had    abdicated          his    role    as     the   children’s

caretaker     and/or        exposed       the     children        to     contact     with

respondent-mother       during      the    trial       placement.        Of   particular

concern were the amount of time Lisa had spent in the care of

her paternal grandmother, rather than respondent-father, and the

whereabouts of both children on the night and morning of 13-14

March 2013.     After hearing conflicting evidence on these issues,

however, the trial court failed to enter affirmative findings of

fact to resolve them.3             Instead, it summarized the conflicting

accounts of respondent-father, his brother, and his mother and

found generally that respondent-father’s “testimony, under oath,

was   untruthful      and   not    credible       in    any     way.”     While     it   is



3
 The court announced in open court “that at least one of the
children was staying with her grandmother” but did not include
this finding in its written order.
                                         -7-
possible to construe this finding as an implicit adoption of the

testimony of respondent-father’s mother and brother, it is not

the role of this Court to infer necessary findings where none

appear.       See State v. Brown, 314 N.C. 588, 596, 336 S.E.2d 388,

393 (1985) (“It is the duty of the finder of fact, not this

Court, to resolve disputed questions of fact.”);                    see also In re

A.S.,      190   N.C.   App.    679,   691,    661   S.E.2d    313,    321       (2008)

(remanding for more specific dispositional findings where the

trial court found that “the statements set forth in the Court

Report of [the] social worker . . . are true and the statements

set forth in the Court Report of guardian ad litem . . . are

true”), aff'd per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009).

       We agree with respondent-father that the remaining findings

do   not    support     the    trial   court’s   determination        that       further

reunification efforts “would clearly be futile and inconsistent

with    the      juveniles’    health,    safety,    and     need    for     a    safe,

permanent home within a reasonable amount of time.”                     Finding 22

states that respondent-father “has not been taking care of the

children as court ordered in the trial placement.”                    However, the

order      authorizing    the    trial    placement    contains       no     specific

directives        regarding     the    children’s     care     other       than     (1)
                                   -8-
obtaining daycare approved by DSS;4 (2) providing bi-weekly and

Christmas visitation to Mr. and Mrs. A.;          and (3) forbidding

contact “between the children and the mother.”         The trial court

neither   made   findings   that   respondent-father   violated   these

provisions5 nor did it make any evidentiary findings that would

logically support a conclusion that respondent-father violated

the terms of the 18 February 2013 trial placement order.

    Finding 23 states       generally    that respondent-father “‘did

his own thing,’ after trial placement, stopped complying with

his case plan, and in fact made no further effort on his case

plan, regressing on his case plan.”        The only specific findings

that address respondent-father’s compliance with his case plan

are as follows:

           19.    [Respondent-father] noted that he’d
           been ordered to continue his counseling [at]
           “a court date before last, to continue his
           anger management classes, but he had, as of
           the last court date, a letter of completion
           for his substance abuse treatment and anger
           management.”     He stopped going to the
           sessions.

           20.    [Respondent-father] did not complete
           his drug counseling, as he’s been ordered.

4
 Both the trial court and DSS agreed to respondent-father’s
proposal to allow his mother to provide daycare for the children
from 20 December 2012 until 2 January 2013.
5
 Respondent-father testified that his children attended MudPies
daycare at the time of the 21 March 2013 hearing.
                                         -9-


             21.     [Respondent-father] had maintained
             weekly contact with DSS as ordered until 1-
             19-13.   [He] failed to contact DSS again
             until 2-12-13.    [He] did not provide DSS
             with a copy of his work schedule as DSS
             requested on 2-15-13 until 3-7-13.


    As for Finding 20, the evidence showed that John Pulliam

certified    by   letter    dated   24    November       2012     that   respondent-

father had “successfully completed his individualized treatment

program   with    CHOOSE    LIFE”   and        that    “[a]nger    management   and

relapse prevention education and training have been provided.”

The trial court held a permanency planning hearing five days

later.      In the resulting order entered 22 January 2013, the

trial     court     acknowledged      Pulliam’s          letter      but     ordered

respondent-father     “to    continue      counseling       with    John    Pulliam,

where he will also address his anger issues in the counseling

sessions.”      However, the trial court held a review hearing on 20

December 2012 and authorized the children’s trial placement with

respondent-father in an order entered 18 February 2013.                     In this

order,    the     trial    court    found       that     respondent-father       “is

successfully working his case plan” and made no reference to a

requirement that he continue counseling with Pulliam.                      The order

is likewise silent as to respondent-father’s need for further

“drug counseling” as stated in Finding 20.
                                    -10-
    By    the   time   of   the    20   December   2012   review   hearing,

respondent-father had ceased his counseling with Pulliam.              Had

the trial court deemed additional counseling to be necessary, we

find it reasonable to assume that it would have noted the issue

in its 18 February 2013 order and directed respondent-father to

resume his counseling as a condition of the trial placement.

Under these circumstances, respondent-father’s failure to attend

counseling with Pulliam from 20 December 2012 until the next

review hearing on 21 March 2013 is insufficient to justify a

ceasing of reunification efforts under N.C. Gen. Stat. § 7B-

507(b).

    Finding 21, which is uncontested, notes that respondent-

father missed two weekly contacts with DSS and delayed notifying

DSS of his work schedule.         See generally Koufman v. Koufman, 330

N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (ruling that uncontested

findings are binding on appeal).            However, we do not believe

that these omissions support the trial court’s assessment in

Finding 23 that respondent-father “stopped complying with his

case plan, and in fact made no further effort on his case plan”

after the trial placement was approved             on 20 December 2012.

Rather, Finding 21 notes that respondent-father contacted DSS on
                                       -11-
12 February 2013 and provided his work schedule on 7 March 2013.6

       “There is nothing impermissible about describing testimony,

so     long   as   the   court    ultimately      makes    its   own     findings,

resolving any material disputes.”             In re C.L.C., 171 N.C. App.

438, 446, 615 S.E.2d 704, 708 (2005), aff'd per curiam, 360 N.C.

475,    628   S.E.2d     760-61   (2006).         “Where   there    is    directly

conflicting evidence on key issues, it is especially crucial

that    the   trial    court   make   its   own   determination     as    to    what

pertinent facts are actually established by the evidence, rather

than merely reciting what the evidence may tend to show.”                      In re

Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000)

(citations omitted).           In the case sub judice, the trial court

failed to resolve the evidentiary disputes most salient to its

decision under N.C. Gen. Stat. § 7B-507(b)(1).                     Therefore, we

must remand for further findings on this issue.




6
 The 15 October 2013 order that awards guardianship to Mr. and
Mrs. A. includes additional findings regarding respondent-
father’s non-compliance with his case plan after reunification
efforts ceased.    However, we find no statutory authority to
consider these subsequent findings in our review of the 26 April
2013 order ceasing reunification efforts. But cf. In re L.M.T.,
367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013) (Because N.C.
Gen. Stat. § 7B-1001(a)(5)(a) (2013) directs the appellate court
to “review the order to cease reunification together with an
appeal of the termination of parental rights order, . . .
incomplete findings of fact in the cease reunification order may
be cured by findings of fact in the termination order.”)
                                            -12-
                                    III. Guardianship

       In   light      of    our    decision       to    vacate     the    order    ceasing

reunification efforts, respondent-father contends that we must

also vacate the succeeding order that changed the children’s

permanent plan and awarded guardianship to Mr. and Mrs. A.                                  We

agree.       Because        additional      findings       are    needed    to    determine

whether DSS must continue its reasonable efforts to reunify the

children     with      respondent-father           under    N.C.    Gen.    Stat.     §    7B-

507(b), we must also vacate the subsequent permanency planning

order entered 15 October 2013.                    In re I.K., __ N.C. App. at __

n.6, 742 S.E.2d at 596 n.6 (rejecting the “argument that we need

only     look     to     whether      the        court    properly        concluded       that

guardianship is in the child’s best interest without considering

the adequacy of the court’s findings under §§ 7B-507 and 7B-

907”).

                                     IV.    Conclusion

       The 26 April 2013 order ceasing reunification efforts is

hereby vacated.          We remand for the entry of additional findings

of   fact    on    the      need    for    DSS    to     make    further    reunification

efforts under N.C. Gen. Stat. § 7B-507.                            See id. at __, 742

S.E.2d      at    596.       “The    [trial]       court    may    receive       additional

evidence on this issue, within its sound discretion.”                                 In re
                                   -13-
E.G.M.,   __   N.C.   App.   __,   __,    750   S.E.2d   857,   868   (2013)

(citation omitted).      The permanency planning order entered 15

October 2013 is also vacated.

    Vacated and remanded.

    Chief Judge MARTIN and Judge HUNTER, Robert N., concur.

    Report per Rule 30(e).
