{
  "id": 4176520,
  "name": "IN THE MATTER OF: A.S.",
  "name_abbreviation": "In re A.S.",
  "decision_date": "2010-03-16",
  "docket_number": "No. COA09-1386",
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  "last_updated": "2023-07-14T21:32:21.116750+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges WYNN and HUNTER JR. concur."
    ],
    "parties": [
      "IN THE MATTER OF: A.S."
    ],
    "opinions": [
      {
        "text": "BEASLEY, Judge.\nRespondents are the parents of four children, the youngest of which is A.S. (hereinafter referred to as Adam), the subject of the present appeal. On 18 June 2007 the Robeson County Department of Social Services (hereinafter referred to as Petitioner) filed a juvenile petition alleging that Adam was a neglected juvenile. On 24 August 2007 the court filed an order adjudicating Adam as a neglected juvenile. This Court affirmed the adjudication of Adam and remanded the disposition portion of the order for further findings of fact. In re A.S., 190 N.C. App. 679, 661 S.E.2d 313 (2008), aff\u2019d per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009). On 1 July 2009 the court held a hearing for the purpose of reviewing with the parties a proposed order it had drafted in response to this Court\u2019s mandate. After receiving input from the parties, the court made some changes and on 17 July 2009 it filed an \u201cOrder on Disposition\u201d which continued custody of Adam with Petitioner and changed the permanent plan from reunification to guardianship with a court-approved caretaker. Respondents appealed.\nRespondent mother argues that the trial court erred in granting custody of Adam to Petitioner when both Respondent father and paternal grandmother were fit and available to care for him. Respondent father further argues that the trial court erred by awarding custody to anyone other than Respondent father in the absence of evidence or findings of fact and conclusions of law declaring Respondent father to be an unfit parent.\nAs a condition for receiving federal funding of foster care and adoption assistance, a state is required, inter alia, to have a plan for foster care which \u201cprovides that the State shall consider giving preference to an adult relative over a non-related caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards.\u201d 42 U.S.C. \u00a7 671(a)(19) (2009). Consistent with this mandate, our statutes contain several provisions which direct a juvenile court to consider placement with a relative as a first priority. An example of one provision is contained in N.C. Gen. Stat. \u00a7 7B-505 (2009), which provides that in entering a custody order or other order for placement outside the home, the court \u201cshall 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.\u201d If such relative is available, then \u201cthe court shall order placement of the juvenile with the relative unless the court finds that placement with the relative would be contrary to the best interests of the juvenile.\u201d N.C. Gen. Stat. \u00a7 7B-505 (3) (2009). Failure to make specific findings of fact explaining the placement with the relative is not in the juvenile\u2019s best interest will result in remand. In re L.L. 172 N.C. App. 689, 704, 616 S.E.2d 392, 401 (2005).\nBy its fifth finding of fact in the instant order the trial court found:\nThat [Adam] does not have any other relatives available for placement at this time that are known to the Robeson County Department of Social Services or that would be able to provide proper care and supervision of [Adam] in a safe home; that during the proceedings involving [Adam\u2019s] siblings evidence was presented to the court regarding a grandparent of the children who resides in Robeson County; that the court notes however that the undersigned determined that the grandparent was not an appropriate placement for the siblings due to evidence that the grandparent would not adequately supervise the children from the risk posed by the parents; that court finds that the same reasoning should be applied to consideration of that grandparent in [Adam\u2019s] case.\nThe foregoing finding is the only such finding the court made regarding the fitness of the paternal grandparent to be a custodial parent. As noted within the finding, the court relied heavily upon its finding in proceedings involving Adam\u2019s siblings that the paternal grandparent is not an appropriate placement.\nWe take judicial notice of our records, including appeals that have involved Adam\u2019s siblings and the same trial judge. In the most recent appeal we held that the evidence failed to support a finding that neither Respondent father nor the paternal grandmother will be unable to prevent Mother from having unauthorized or unsupervised contact with the children. In re I.N.B., T.N.B, D.N.B., 2009 N.C. App. LEXIS 1672 (No. COA09-742, filed 20 October 2009, unpublished). In the instant order the court expressly relied upon this disavowed finding in making its above-quoted fifth finding of fact.\nWe also held in our 20 October 2009 opinion that the court erred in granting guardianship of the siblings to a non-relative without finding that Respondent father has acted inconsistently with his constitutional right to parent his children or that he is unfit to parent his children. We noted that the testimony of Petitioner\u2019s social worker showed that Respondent father \u201chad not shown any behavior or any type of conduct inconsistent with fully complying with every request petitioner had made of him.\u201d Id. slip opinion at p. 13. The social worker testified that Respondent mother had moved out of the home at Respondent father\u2019s request \u201cwhen it became clear that her presence in his home was an impediment to the return of the juveniles to his care.\u201d Id. slip opinion at p. 12. We also stated that the court\u2019s finding \u201cthat it is \u2018highly likely\u2019 that respondent-father failed to protect the juvenile from abuse or neglect on other occasions is entirely unsupported by any evidence in the record.\u201d Id. slip opinion at pp. 13-14. We conclude that the present order shares the same deficiency in its failure to contain findings as to the fitness of Respondent father to parent the children.\nRespondent mother next contends that the trial court erred by failing to ensure that Petitioner used reasonable efforts in reunifying the child with either parent. For the purposes of the Juvenile Code, \u201c[r]easonable efforts\u201d are defined as:\nThe diligent use of preventive or reunification services by a department of social services when a juvenile\u2019s remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.\nN.C. Gen. Stat. \u00a7 7B-101(18) (2009). In our opinion filed 20 October 2009, we held that Petitioner had not used reasonable efforts in attempting to reunify Adam\u2019s siblings with their parents. In re I.N.B., slip opinion at pp. 13-14. The present record is void of any effects Petitioner has made to attempt to reunify Adam with his parents other than continued insufficient efforts Petitioner has made to reunify his siblings with the parents. The record does contain a family assessment of strengths and needs prepared on 23 July 2007 which indicates that Respondent mother\u2019s greatest strengths are good coping skills, good parenting skills, access to a strong support network, and utilization of community resources. In contrast, the report shows that Respondent mother\u2019s only negative factor was her lack of employment. The court noted the foregoing strengths in finding of fact number eleven. Nevertheless, despite finding that Respondent mother has these strengths, it found that further efforts to reunify Adam with his parents would be futile. We can find no evidence to support the finding that further efforts to reunify would be futile.\nRespondent mother also contends that the trial court erred in ceasing reunification efforts without making the appropriate findings required by N.C. Gen. Stat. \u00a7 7B-507 (2009). This statute requires a court to make one of four findings before placing a child in the custody of a county department of social services, including a finding that \u201creasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court\u201d finds that \u201c[s]uch efforts clearly would be futile or would be inconsistent with the juvenile\u2019s health, safety, and need for a safe, permanent home within a reasonable period of time[.]\u201d N.C. Gen. Stat. \u00a7 7B-507(b)(l) (2009). Although the court made a finding of fact that reunification with either of the parents would be futile and inconsistent with Adam\u2019s health and safety and his need for a safe and permanent home, we hold, for reasons stated above, that this finding is not supported by the evidence.\nFor the errors committed, we reverse the trial court\u2019s order and remand this matter for a new hearing.\nReversed and remanded.\nJudges WYNN and HUNTER JR. concur.\n. Adam is used to protect the identity of the juvenile.",
        "type": "majority",
        "author": "BEASLEY, Judge."
      }
    ],
    "attorneys": [
      "No brief filed for Robeson County Department of Social Services, Petitioner-Appellee.",
      "Richard E. Jester, for Respondent-Appellant Father.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir Peek, Respondent-Appellant Mother.",
      "Pamela Newell Williams, for Guardian ad Litem."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: A.S.\nNo. COA09-1386\n(Filed 16 March 2010)\n1. Child Abuse and Neglect\u2014 fitness and availability to care for child \u2014 sufficiency of findings of fact\nAlthough the trial court properly concluded in a child neglect case that the paternal grandmother was not fit and available to care for the minor child, the order failed to contain findings'as to the fitness of respondent father to parent the child. The order was reversed and remanded for a new hearing.\n2. Child Abuse and Neglect\u2014 reunification \u2014 reasonable efforts\nThe trial court erred in a child neglect case by failing to ensure that petitioner DSS used reasonable efforts to reunify the child with either parent. There was no evidence to support the finding that further efforts to reunify would be futile.\n3. Child Abuse and Neglect\u2014 cessation of reunification efforts \u2014 sufficiency of findings of fact\nThe trial court erred in a child neglect case by ceasing reunification efforts without making the appropriate findings required by N.C.G.S. \u00a7 7B-507.\nAppeal by Respondents from order entered 17 July 2009 by Judge J. Stanley Carmical in Robeson County District Court. Heard in the Court of Appeals 22 February 2010.\nNo brief filed for Robeson County Department of Social Services, Petitioner-Appellee.\nRichard E. Jester, for Respondent-Appellant Father.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir Peek, Respondent-Appellant Mother.\nPamela Newell Williams, for Guardian ad Litem."
  },
  "file_name": "0140-01",
  "first_page_order": 168,
  "last_page_order": 172
}
