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IN RE: E.R. & L.R.
¶ 1 This case concerns the custody of two children, Edward and Lori.1 Anna VanHart (“Respondent”) is the children's mother, appealing from the trial court's permanency planning order which ceased reunification efforts between her and the children. On appeal, Respondent's contention is that the trial court (1) failed to comply with N.C. Gen Stat. § 7B-906.2(b) by ceasing reunification efforts without first finding that reunification efforts would clearly be unsuccessful or inconsistent with the children's health or safety; and (2) erred by ceasing Respondent's visitation without first finding that it was in the children's best interests to do so. We conclude that Respondent's arguments lack merit and affirm the trial court's rulings.
I. Factual and Procedural Background
¶ 2 Respondent and Todd Renton (“Renton”)2 are the biological parents of Edward and Lori. At the time this matter was initiated, Edward was seven years old and Lori was six years old. Renton is currently in prison, and Respondent's living situation is unclear from the record. It does not appear that the children ever lived with their biological parents—instead, they grew up living with their step-grandfather and caretaker, Richard Saucier (“Saucier”). While under his care, the Alleghany County Department of Social Services (“DSS”) received reports concerning Saucier's ability to care for the children. The children frequently attended school unbathed and in clothes not appropriate for the weather. Saucier expected them to prepare their own meals and allowed them to self-administer sleep medication. He failed to take his own prescribed medications, had trouble walking on his own, and appeared confused and hostile when questioned by social workers. On one home visit, social workers observed a bottle of Hydrocodone and an open container of alcohol lying on a coffee table accessible to the children. Due to these circumstances, on 27 March 2019 DSS assumed custody of Edward and Lori and filed a petition alleging that the children were neglected. A Guardian ad Litem (“GAL”) was appointed to represent the children on 1 April 2019.
¶ 3 A hearing was held in Alleghany County District Court on 2 April 2019, during which the trial court concluded that the children had been neglected and should remain in the care of DSS. The children were placed at Ebenezer Children's Home, and the parents and caretaker were awarded two hours of bi-weekly supervised visitation. Subsequently, Saucier, Renton, and Respondent entered into a case plan with DSS, which required Respondent to demonstrate progress on her parenting skills, substance abuse issues, housing situation/home environment, employment, and communication with DSS. Reunification was selected as the children's primary permanent plan, and their secondary permanent plan was adoption.
¶ 4 DSS and the GAL submitted reports prior to the trial court's review of DSS's non-secure custody of the children. The DSS report indicated that Respondent (1) had a history of CPS involvement regarding her three other children (who she no longer had custody of); (2) had unstable housing; (3) failed to verify her housing with DSS; (4) failed to maintain steady employment; (5) did not attend her substance abuse assessments at Daymark Recovery Services; (6) did not attend required drug screenings; (7) did not follow-through with recommendations made from the parenting evaluation; and (8) did not maintain communication with DSS. The GAL's report similarly indicated that Respondent had not made progress with her case plan and had failed to maintain communication with the GAL.
¶ 5 A permanency planning review hearing was held on 17 September 2019. Saucier was not a party to this proceeding as he had died in September 2019. In its order, the court noted that “[s]ince the adjudication, the parents have done little or nothing to work on their case plan,” and warned that “should the parents not make substantial improvement by the next hearing, the Court will be inclined to change the plan away from reunification.” The court concluded that DSS should maintain custody over the children.
¶ 6 Prior to the next hearing, both DSS and the GAL submitted reports recommending ceasing reunification efforts and visitation between Respondent and the children. The reports indicated that Respondent had (1) failed all her drug screens, which tested positive for marijuana; (2) had stopped attending her substance abuse assessments at Daymark; (3) had only visited the children 19 times since their placement with DSS (out of a possible 61 visits); and (4) had failed to make any of her child support payments. DSS also reported that she had still failed to consistently communicate with DSS and had not reported stable housing or employment. The GAL's report made similar findings and concluded that Respondent “show[ed] little or no interest in parenting these children.”
¶ 7 After several continuances, the next permanency planning hearing took place on 2 June 2020. During the hearing, testimony was presented from Robin Howell, a DSS social worker, who described Respondent's non-compliance with her case plan. Howell testified that Respondent had not been attending her required classes at Daymark for the past several months, and was “considered noncompliant” for failure to attend or communicate with Daymark. She also stated that Respondent “tested positive for marijuana pretty consistently” during her drug screenings, and that she had not been able to verify Respondent's address or housing situation. Respondent had informed Howell that she was living at a hotel in Boone, North Carolina, but when Howell contacted the hotel, the owner stated that Respondent had not lived there for some time.
¶ 8 Howell summarized that Respondent “[did] not have stable housing”; “had issues with transportation”; and that “all [her drug screenings] have been positive for marijuana.” Howell's testimony also indicated that Respondent was in arrears on her child support payments; had previous involvement with CPS regarding her other children; and had only visited the children 19 times since they had been taken into DSS custody. Howell concluded by recommending that the children's permanent plan “be changed from reunification to adoption.”
¶ 9 Respondent also testified at the hearing. She acknowledged that she had failed numerous drug tests for marijuana, and stated that she had “smoked marijuana for 22 years,” but had stopped using marijuana “at the start of this case.” She stated that she had attended her initial substance abuse assessment at Daymark and had begun attending weekly therapy sessions there, but had missed several due to illness or being at work. She stated that she had completed the first half of the required parenting class, but was unsure if the certificate of completion had been mailed to DSS. Respondent also testified that she was working at Pennywise gas station and was living at the Highland Hills Motel, and claimed that her landlord was mistaken when he told DSS that she had moved out. She admitted that she had three other minor children who were previously removed from her custody by DSS and now reside out of state with relatives.
¶ 10 Based on the testimonial evidence and the reports from DSS and the GAL, the trial court ultimately ordered that reunification efforts and visitation be ceased with Respondent. The court concluded in its 21 July 2020 written order that Respondent “ha[d] done little or nothing” to make progress on her case plan “since the last hearing, despite the admonishment by the Court”; that she was “acting in a manner inconsistent with the health and safety of the children”; and that placement of the children with Respondent was “not possible ․ due to her not working her case plan and lack of stable housing.” Respondent subsequently filed for appeal of this order.
¶ 11 Respondent argues that the trial court (1) failed to comply with N.C. Gen Stat. § 7B-906.2(b) by ceasing reunification efforts without first finding that reunification efforts would clearly be unsuccessful or inconsistent with the children's health or safety and (2) erred by ceasing Respondent's visitation without first finding that it was in the children's best interests to do so. We conclude that the trial court did not err in these rulings.
A. Appellate Jurisdiction
¶ 12 As an initial matter, we must first address this Court's appellate jurisdiction over this case. Under N.C. Gen Stat. § 7B-1001(a)(5)(a), a parent may appeal from a permanency planning order which eliminates reunification when the parent satisfies the following criteria:
(1) [the parent] [h]as preserved the right to appeal the order in writing within 30 days after entry and service of the order, (2) [a] termination of parental rights petition or motion has not been filed within 65 days of entry and service of the order, [and] (3) [a] notice of appeal of the order eliminating reunification is filed within 30 days after the expiration of the 65 days.
Id. § 7B-1001(a)(5)(a)(1)-(3) (2019).
¶ 13 In this case, after the trial court entered its order eliminating reunification as a permanent plan for Respondent and her children, Respondent (1) properly preserved her right to appeal in writing, by a filing a timely motion on 30 July 2020; and (2) filed a timely notice of appeal of the trial court's order on 1 October 2020, after the 65-day period had elapsed. Thus, Respondent's initial appeal fully complied with § 7B-1001(a)(5)(a).
¶ 14 However, a complication subsequently arose when the trial court sua sponte entered an amended permanency planning order that same day (1 October 2020). In response, Respondent then filed an amended notice of appeal on 21 October 2020.
¶ 15 Under Rule 60(a) of the North Carolina Rules of Civil Procedure, a trial court may amend an order sua sponte in order to correct “[c]lerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.” N.C. Gen. Stat. § 1A-1, Rule 60(a) (2019). Corrections made to an order under Rule 60(a) may be executed “at any time”—however, a correction made during the pendency of an appeal must be made “before the appeal is docketed in the appellate division.” Id.
¶ 16 As we have previously explained, an amendment under Rule 60(a) is only proper when correcting minor clerical mistakes:
While Rule 60 allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment. A change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.
Robertson v. Steris Corp., 237 N.C. App. 263, 270, 765 S.E.2d 825, 831 (2014) (internal marks and citations omitted).
¶ 17 The question before us thus becomes whether the amendments made by the trial court here amounted to minor clerical corrections, or instead whether the amendments amounted to substantive modifications to the court's judgment. The most notable change made by the trial court here was in finding of fact 23, which originally stated that Respondent “has not completed a substance abuse assessment and did not submit for random drug screens as ordered and she has not been able to maintain stable employment.” However, in the amended order, finding of fact 23 provided as follows:
23. The mother completed her substance abuse and mental health assessment in late 2019. It was recommended that she attend group therapy. The mother began group therapy with Daymark Recovery and attended a few sessions, however, Daymark reported that they had lost contact with the mother in late March or early April. All of the mother's drug screens with Daymark have been positive for marijuana. The mother reports she is working for Pennywise but has yet to provide documentation to the Department for verification.
¶ 18 We conclude that this amendment was substantive in nature, as this finding has been significantly expanded and the trial court has added several pieces of noteworthy new information that have the potential to affect the outcome of Respondent's case. DSS likewise concedes that the amended order “contains additional findings of fact that are not clerical mistakes.”
¶ 19 Thus, because the amendment was substantive in nature (and did more than simply make clerical corrections), the amended permanency planning order was not properly entered. See Matter of A.J.B., 255 N.C. App. 693, 803 S.E.2d 873, 2017 WL 4126961, at *2-*3 (2017) (unpublished) (concluding that the trial court “exceeded its authority under Rule 60(a)” in sua sponte entering an amended order that altered the substantive rights of the respondent parent). Accordingly, because the amended permanency planning order was entered without authority, Respondent's original appeal of the initial permanency planning order—which was timely entered and later perfected—is properly before this Court.
B. Reunification Efforts under N.C. Gen Stat. § 7B-906.2(b)
¶ 20 Respondent first argues that the trial court failed to make findings in compliance with the permanency planning hearing requirements under N.C. Gen. Stat. § 7B-906.2(b), which requires that certain findings be made when the trial court orders that reunification efforts cease. We disagree, and hold that the trial court's order contained all required findings.
¶ 21 “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 M.T.-L.Y., 265 N.C. App. 454, 466, 829 S.E.2d 496, 505 (2019) (internal marks and citation omitted).
¶ 22 The statute governing reunification provides that:
At any permanency planning hearing, the court shall adopt concurrent permanent plans and shall identify the primary plan and secondary plan. Reunification shall be a primary or secondary plan unless the court made findings under G.S. 7B-901(c) or G.S. 7B-906.1(d)(3), the permanent plan is or has been achieved in accordance with subsection (a1) of this section, or the court makes written findings 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) (2019).
¶ 23 We have previously explained that “this statute allows a trial court to eliminate reunification and cease reunification efforts when any one” of the three statutory criteria is met. Matter of E.Y.B., 857 S.E.2d 368, 2021 WL 1750855, at *12 (N.C. Ct. App. 2021) (unpublished). In this case, the trial court had not made findings under G.S. 7B-901(c) or G.S. 7B-906.1(d)(3), and a permanent plan had not previously been achieved, so the applicable portion of the statute here is the third prong—i.e., whether the court made “written findings 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). To satisfy this third prong, the court must make the following findings under N.C. Gen. Stat. § 7B-906.2(d) to assess the degree of the parent's success or failure toward reunification:
(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.
N.C. Gen. Stat. § 7B-906.2(d) (2019).
¶ 24 Based on these statutes, Respondent raises a two-fold argument, contending that: (1) the trial court's order failed to adequately address the four statutory factors under § 7B-906.2(d); and (2) the trial court's order did not meaningfully address the ultimate required finding of whether reunification efforts would be futile or unsafe for the children. We address each argument in turn.
¶ 25 First, we believe it is clear that the trial court's written order addressed each of the four statutory factors under § 7B-906.2(d). The trial court made the following findings in its written order:
21. Since the adjudication, the respondent parents have done little or nothing to work their case plan.
22. The respondent mother has not had stable housing and has refused to provide a current address to the Department. The mother completed her initial parenting evaluation but has not followed-through with the recommendations.
23. The respondent mother has not completed a substance abuse assessment and did not submit for random drug screens as ordered and she has not been able to maintain stable employment.
27. This Court has previously found that, should the respondent parents not make substantial improvements by the next hearing, the Court will be inclined to change the plan away from reunification.
28. The Court feels that the mother has done little or nothing since the last hearing despite this admonishment by the Court.
31. Based upon NCGS 7B-906.2, the Court makes the following Findings of Fact:
b. The respondent mother is not actively participating nor making adequate progress on her case plan.
c. The respondent parents remain available to the Court.
d. The respondent mother is acting in a manner inconsistent with the health and safety of the children.
¶ 26 We conclude that the above findings are sufficient to address the four factors set out in N.C. Gen. Stat. § 7B-906.2(d)(1)-(4). The trial court adopted the language from each of the four factors almost verbatim in its order, and each of these factual findings was supported by competent evidence presented at the hearing.
¶ 27 Second, we address Respondent's argument that the trial court's order failed to meaningfully address the “crucial ultimate finding” required under § 7B-906.2(b)—i.e., the trial court failed to conclude 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) (2019).
¶ 28 In interpreting these statutes, this Court has previously held that when a trial court ceases reunification, not only must the trial court make the four required findings under N.C. Gen. Stat. § 7B-906.2(d)(1)-(4), but the court must also address “whether further efforts to reunify [the child] with [their parent] clearly would be unsuccessful or would be inconsistent with [the child's] health or safety.” Matter of T.W., 250 N.C. App. 68, 74, 796 S.E.2d 792, 796 (2016). However, we have also held that a trial court's failure to “use the precise language of the statute” when making this finding “is not fatal”—“the trial court's written findings must address the statute's concerns, but need not quote its exact language.” In re C.M., 848 S.E.2d 749, 752 (N.C. Ct. App. 2020) (quoting In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)). Rather, we need only consider “whether the trial court's findings of fact address the substance of the statutory requirements.” Id.
¶ 29 For example, in In re C.M., though the trial court failed to explicitly conclude that reunification would be unsuccessful or inconsistent with the child's health or safety, we nevertheless upheld the cessation of reunification efforts with the mother because there were “abundant findings to support this ultimate determination.” In re C.M., 848 S.E.2d at 752. Specifically, the trial court had found that
[the] mother sporadically attended her therapy sessions, that visits with the children are chaotic and the children do not listen, that an expert opined that mother could not be [a] primary caregiver without intensive assistance, that mother lacks support systems to aid her in caregiving, that mother has been unable to provide necessary supervision and direction during visits, that one of the juveniles has admitted in therapy the neglect she suffered while living with mother, and that multiple juveniles suffer developmental or academic delays ․ This evidence therefore shows that reunification would be inconsistent with the juveniles’ health or safety, even if it is not explicitly stated as such.
Id. at 752-53.
¶ 30 Here, we likewise conclude that, although the trial court did not expressly find that reunification would be unsuccessful or inconsistent with the children's health or safety, the trial court's remaining findings are sufficient to support this ultimate determination. First, the trial court made several legal conclusions that addressed the ultimate concerns of the statute, such as:
8. The placement of the minor children in the home of the respondents is contrary to the welfare of the minor children and there are no reasonable means other than continued custody to protect the minor children.
18. Returning home is contrary to the safety, health, and best interests of the minor children.
31d. The respondent mother is acting in a manner inconsistent with the health and safety of the children.
¶ 31 Moreover, the trial court made numerous factual findings to support its conclusions that Respondent could not provide a safe and healthy home for the children. The trial court made several findings addressing Respondent's lack of adequate progress with her case plan and her failure to actively participate in the plan. Under the case plan, Respondent was to improve on her parenting skills, housing and home environment, employment, substance abuse issues, and communication with DSS. In a 13 October 2019 review order, the trial court made findings of fact stating that Respondent had “done little or nothing to work [the] case plan.” The findings further stated that Respondent
has not had stable housing and has refused to provide a current address to the Department. [Respondent] completed her initial parenting evaluation but has not followed-through with the recommendations. She has not completed a substance abuse assessment and did not submit for random drug screens as ordered. She has not maintained stable employment.
¶ 32 The court then stated that it would be inclined to change the plan away from reunification should Respondent not make substantial improvements by the next hearing. In the subsequent permanency planning order of 21 July 2020, the court did not find substantial improvements and followed-through with changing the plan from reunification. In that order, the trial court again found that Respondent had done “little or nothing” since the last hearing to improve her situation for her children. The trial court also stated, in accordance with N.C. Gen. Stat. § 7B-906.2, that Respondent was not actively participating nor making adequate progress on her case plan.
¶ 33 The court also incorporated as findings of fact the case reports from DSS and the GAL. These case reports reflected that Respondent had only visited with the children 16 times of a possible 61 visits; she had failed to make any child support payments; her lack of communication with DSS and the GAL; her numerous failed drugs screens; and her discontinued attendance at the Daymark sessions. These findings of fact support the trial court's finding that Respondent acted in a manner inconsistent with the children's health or safety.
¶ 34 Thus, the trial court's findings of fact support the court's ultimate conclusion that reunification of the children with Respondent would clearly be unsuccessful or inconsistent with the juveniles’ health or safety. The matter was meaningfully addressed and the trial court committed no error.
C. Denying Respondent Visitation
¶ 35 In Respondent's second argument, she contends that (1) the trial court erred in ceasing her visitation rights without having first made the required finding that terminating visitation would be in the children's best interests; and (2) the trial court abused its discretion in denying visitation. We disagree and find no error by the trial court.
¶ 36 “This Court reviews an order disallowing visitation for abuse of discretion.” Matter of J.L., 264 N.C. App. 408, 421, 826 S.E.2d 258, 268 (2019). Our juvenile code provides as follows with regard to visitation awards:
An order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for visitation that is in the best interests of the juvenile consistent with the juvenile's health and safety, including no visitation. The court may specify in the order conditions under which visitation may be suspended.
N.C. Gen. Stat. § 7B-905.1(a) (2019) (emphasis added).
¶ 37 Respondent contends that the language of this statute requires the trial court to make express findings that visitation is contrary to a juvenile's best interests before visitation may be terminated. To support this argument, Respondent cites In re K.C., wherein we 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[.]” In re K.C., 199 N.C. App. 557, 562, 681 S.E.2d 559, 563 (2009) (internal marks and citations omitted).
¶ 38 We disagree with Respondent's interpretation of this statute because—as we have held in more recent cases—express findings on the children's best interests are not necessary when it is clear from the record that the court considered the children's best interests in making its visitation determination. For example, in Matter of T.W., the respondent mother similarly argued that the trial court erred by terminating her visitation without expressly finding that it was in the child's best interests. Matter of T.W., 250 N.C. App. at 77, 796 S.E.2d at 798. We disagreed, and concluded that, even though the trial court's order did not explicitly state that denying visitation was in the child's best interests, the remainder of the court's order made clear that the court “made the necessary findings to deny visitation.” Id. at 78, 796 S.E.2d at 798. We explained that
[t]he permanency planning order includes findings of fact, made upon clear, cogent and convincing evidence and in light of the best interest of the child, that ․ visitation between Mother and [the child] was not desirable. The court made additional findings that Mother was awaiting trial on criminal charges for her alleged sexual abuse of [the child], that she was noncompliant with mental health treatment and substance abuse treatment services, and that she was acting in a manner inconsistent with the health and safety of the juvenile. The court received evidence that Mother remained subject to a no contact order in her criminal case and had disrupted YFS's attempt to develop a visitation plan for her ․ We hold that the court made the necessary findings to deny visitation to Mother and that it acted well within its discretion in doing so.
Id. (internal marks omitted)
¶ 39 Likewise, though the trial court here did not expressly state that visitation was contrary to Edward and Lori's best interests, the trial court made a number of supporting findings (both oral and written) to reinforce its decision to deny Respondent visitation. At the conclusion of the 2 June 2020 permanency planning hearing, the court ordered that visitation be ceased between Respondent and the children, noting that it was “very dismayed about the lack of progress by [Respondent]” on her case plan, and that Respondent “hasn't really done anything much with regard to the visitation”—in reference to Respondent's poor attendance at her scheduled visitation sessions.
¶ 40 As noted in the DSS reports incorporated in the court's order, Respondent had only attended 19 out of 61 scheduled visits with her children over the past several years, which equates to a less than 1/3 attendance rate. At the time of the hearing, Respondent had not visited her children in over six months. Testimony presented at the hearing demonstrated that the children became “very upset” and “very sad” when their mother did not show up for their scheduled visitations, and that “throughout the life of this case[,] ․ unfortunately these children have been given false hope only to be let down continually” by their mother.
¶ 41 In addition to Respondent's inadequate attendance at visitations, Respondent also failed to make progress on her case plan. As noted by the trial court, at the time of the hearing Respondent “ha[d] done little or nothing since the last hearing” to make progress on her case plan goals of attending therapy, attending parenting classes, submitting to substance abuse assessments, securing proper housing and employment, and maintaining communication with DSS. Moreover, the trial court took notice of Respondent's numerous failed drug tests and failure to “submit for random drug screens as ordered.” Finally, the trial court noted that Respondent “has not had stable housing and has refused to provide a current address” and that she “has not been able to maintain stable employment.” Based on these factual findings, the trial court concluded as a matter of law that Respondent was “acting in a manner inconsistent with the health and safety of the children” and that it was “in the best interest of the minor children to remain in the custody of [DSS].”
¶ 42 Accordingly, as in Matter of T.W., due to (1) Respondent's failure to consistently visit or communicate with her children; (2) her failure to make adequate progress on her case plan; (3) her numerous failed drug tests; and (4) her lack of stable housing and employment, we conclude that the trial court made the necessary findings to deny Respondent visitation and that it acted well within its discretion in doing so. See also Matter of E.Y.B., 857 S.E.2d 368, at *15 (“This Court has previously held that a denial of visitation is in a juvenile's best interest when the parent has failed to make adequate progress on their case plan, has failed to cooperate with DSS, or has not maintained sufficient contact with the juvenile.”).
¶ 43 The trial court correctly concluded that reunification efforts would clearly be unsuccessful or inconsistent with the children's health or safety, and that visitation with Respondent would not be in the children's best interests. The trial court made all statutorily required findings in reaching these conclusions. We affirm the permanency planning order.
Report per Rule 30(e).
1. Pseudonyms are used in place of the children's names to protect their identities.
2. Renton is not a party to this appeal.
Judges DILLON and GRIFFIN concur.
Response sent, thank you
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Docket No: No. COA21-1
Decided: July 06, 2021
Court: Court of Appeals of North Carolina.
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