{ "id": 4174935, "name": "IN THE MATTER OF: D.Y., B.M.T., J.A.T., Minor Children", "name_abbreviation": "In re D.Y.", "decision_date": "2010-01-19", "docket_number": "No. COA09-1087", "first_page": "140", "last_page": "143", "citations": [ { "type": "official", "cite": "202 N.C. App. 140" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "564 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079405 ], "year": 2002, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0094-01" ] }, { "cite": "577 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "337", "parenthetical": "quoting In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)" }, { "page": "337", "parenthetical": "\"By stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court's findings are not 'specific ultimate facts . . . sufficient for this Court to determine that the judgment is adequately supported by competent evidence.' \"" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9192024 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "660", "parenthetical": "quoting In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0655-01" ] }, { "cite": "603 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2004, "pin_cites": [ { "page": "382" }, { "page": "382" }, { "page": "382", "parenthetical": "although the respondent-mother took the stand and was sworn, she offered no testimony regarding the permanency plan" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412321 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0574-01" ] }, { "cite": "319 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "574" }, { "page": "574", "parenthetical": "\"Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child.\"" }, { "page": "582-83" } ], "opinion_index": 0 }, { "cite": "311 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683884 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "597" }, { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0586-01" ] } ], "analysis": { "cardinality": 462, "char_count": 8580, "ocr_confidence": 0.757, "pagerank": { "raw": 9.232378735636765e-08, "percentile": 0.5106102711007475 }, "sha256": "3e93b10b504f144f15908534f99a3afa89a2f820b81b0df46206893b229ef819", "simhash": "1:ebee112ed6079d76", "word_count": 1360 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "IN THE MATTER OF: D.Y., B.M.T., J.A.T., Minor Children" ], "opinions": [ { "text": "STEPHENS, Judge.\nRespondent-mother appeals from a permanency planning order. For the following reasons, we reverse and remand.\nI. Procedural History and Factual Background\nOn 24 April 2008, the Cumberland County Department of Social Services (\u201cDSS\u201d) filed a petition alleging that D.Y., B.M.T., and J.A.T. were neglected and dependent juveniles. DSS stated it had received a report that respondent-mother was threatening to commit suicide and harm the children. Furthermore, DSS claimed that respondent-mother had hit her mother \u201crepeatedly in the head and all over her body in the presence of the children,\u201d and \u201cverbally attacked her children by yelling at them and asking if they wanted some of that also, indicating the physical altercation between her and their grandmother[.]\u201d Additionally, DSS alleged that the children had admitted to being afraid of respondent-mother because she had beaten them in the past and had slapped their faces. Finally, DSS stated that respondent-mother had admitted to being diagnosed as bi-polar, had previously tried to commit suicide, was not taking her prescribed mental health medications, and was using marijuana. Respondent-mother was voluntarily admitted to Cape Fear Medical Center after the police gave her the choice of admission to the hospital or being taken to jail. D.Y. was picked up by her father and was residing with him when the petition was filed. B.M.T. and J.A.T. were residing with their maternal grandmother.\nAn adjudicatory hearing was held on 21 January 2009. At the hearing, respondent-mother stipulated that the \u201cjuveniles were dependent at the time of the filing of the Petition based on domestic violence between the Respondent Mother and grandmother[.]\u201d The court accepted the stipulation and dismissed the allegations of neglect. The court noted that D.Y. had been placed with her father and was doing well in this placement. The court found that the placement of B.M.T. and J.A.T. with their maternal grandmother had been disrupted and they had been relocated to the residence of D.Y.\u2019s father. However, J.A.T. was unhappy with this placement and was subsequently placed with court-approved caretakers. The trial court ordered that respondent-mother be allowed supervised visitation with B.M.T. and J.A.T., follow all recommendations of a psychological assessment, and complete an anger management program.\nA permanency planning review hearing was held on 13 May 2009. The court found:\nThat it is not possible for the juveniles to return home at this time. The Respondent Mother has not completed all recommendations on the Family Service Agreement Plan and the juveniles have expressed they do not wish to return home to the Respondent Mother.\nThe court further found that \u201c[rjeturn of the juveniles to the Respondent Mother would be contrary to the welfare and best interest of the juveniles.\u201d Accordingly, the court declined to return the juveniles to respondent-mother\u2019s custody and ordered that the juveniles remain in their placements. The court continued the existing visitation plan. Respondent-mother appeals.\nII. Discussion\nWe first consider respondent-mother\u2019s argument that the trial court failed to hold a proper hearing. Respondent-mother asserts that the trial court\u2019s findings of fact are unsupported by properly introduced evidence, and that therefore, the trial court erred in its conclusions of law. We agree.\nOne of the stated purposes of the Juvenile Code is \u201c[t]o provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents[.]\u201d N.C. Gen. Stat. \u00a77B-100(1) (2008). Another stated purpose is \u201c[t]o develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family.\u201d N.C. Gen. Stat. \u00a77B-100(2) (2008). In child custody matters,\n[wjhenever the trial court is determining the best interest of a child, any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony. Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child.\nIn re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).\nIn In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004), this Court reversed a permanency planning order where the trial court\u2019s findings of fact were unsupported by sufficient evidence. In D.L., the trial court allowed the respondent-mother to speak at the permanency planning hearing. Id. at 582, 603 S.E.2d at 382. DSS did not offer any testimony into evidence other than the DSS attorney\u2019s statements. Id. \u201cStatements by an attorney are not considered evidence.\u201d Id. In reversing the order of the trial court, our Court noted that\n[t]he only \u201cevidence\u201d offered by DSS was a summary prepared on 11 September 2002. \u201cBy stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court\u2019s findings are not \u2018specific ultimate facts ... sufficient for this Court to determine that the judgment is adequately supported by competent evidence.\u2019 \u201d In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (quoting In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)); see also . . . Shue, 311 N.C. at 597, 319 S.E.2d at 574 (\u201cWithout hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child.\u201d). . . .\nAs no evidence was presented by either DSS or [respondent-mother] regarding the permanency plan, the trial court\u2019s findings of fact are unsupported. Without any evidence to support its findings, the trial court erred in its conclusions of law.\nId. at 582-83, 603 S.E.2d at 382.\nWe conclude that the present matter is indistinguishable from D.L. In the case sub judice, the trial court entered an order based solely on the written reports of DSS and the guardian ad litem, prior court orders, and oral arguments by the attorneys involved in the case. See id.; Harton, 156 N.C. App. at 660, 577 S.E.2d at 337 (\u201cBy stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court\u2019s findings are not \u2018specific ultimate facts . . . sufficient for this Court to determine that the judgment is adequately supported by competent evidence.\u2019 \u201d) (citation omitted). Although respondent-mother was given the opportunity to address the court, she did not take the stand and was not sworn. No sworn testimony from respondent-mother or any other witness was received. Cf. D.L., 166 N.C. App. at 582, 603 S.E.2d at 382 (although the respondent-mother took the stand and was sworn, she offered no testimony regarding the permanency plan). DSS did not offer any witnesses for testimony and the trial court did not examine any witnesses.\nWe conclude, therefore, that because no evidence was presented, the trial court\u2019s findings of fact are unsupported, and its conclusions of law are in error. Accordingly, as in D.L., the order of the trial court must be reversed and the matter remanded for further proceedings consistent with this opinion.\nBecause we remand for a new hearing, we need not address respondent-mother\u2019s remaining arguments on appeal.\nREVERSED and REMANDED.\nJudges CALABRIA and STROUD concur.\n. The parties refer to the minor child, B.M.T., as \u201cB.N.T.\u201d in their briefs. However, the order from which appeal is taken and most of the preceding pleadings and orders refer to the minor child as \u201cB.M.T.\u201d Therefore, we refer to the minor child as \u201cB.M.T.\u201d throughout our opinion.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Christy E. Wilhelm for respondent-appellant mother.", "John F. Campbell, for petitioner-appellee Cumberland County Department of Social Services.", "Pamela Newell Williams for guardian ad litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: D.Y., B.M.T., J.A.T., Minor Children\nNo. COA09-1087\n(Filed 19 January 2010)\nChild Abuse and Neglect\u2014 permanency planning order \u2014 hearing \u2014 evidence not presented\nA permanency planning order was remanded for a new hearing where the trial court relied on the written reports of DSS, the guardian ad litem, prior court orders, and oral arguments by the attorneys, but did not receive sworn testimony.\nAppeal by respondent-mother from order entered 3 June 2009, nunc pro tunc 13 May 2009, by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 21 December 2009.\nChristy E. Wilhelm for respondent-appellant mother.\nJohn F. Campbell, for petitioner-appellee Cumberland County Department of Social Services.\nPamela Newell Williams for guardian ad litem." }, "file_name": "0140-01", "first_page_order": 168, "last_page_order": 171 }