IN RE: J.C. (2022)

Factual and Procedural Background

¶ 1 Respondent-Mother appeals from a 21 July 2021 Subsequent Permanency Planning Order and Order Waiving Further Reviews and a Corrected Subsequent Permanency Planning Order and Order Waiving Further Reviews entered 25 July 2021. These Orders confirmed the permanent plan of guardianship for Respondent-Mother's child Joe which awarded guardianship of Joe to Joe's foster parents and waived further six-month review hearings.¹ The Record tends to reflect the following:

¶ 2 On 18 May 2017 the Cumberland County Department of Social Services (DSS) responded to a Child Protective Services referral. The DSS investigation report included, in part, the following information: that Joe witnessed the physical abuse of his younger sister; that his primary caregiver was his maternal great-aunt; that Joe had tested positive for cocaine at the time of his birth; and that Respondent-Mother could not ensure the safety of her children at the time of the investigation as Respondent-Mother appeared to be under the influence of alcohol. On 23 May 2017, DSS filed a Juvenile Petition (Petition) alleging Joe was abused, neglected, and dependent as defined by N.C. Gen. Stat. § 7B-101.

¶ 3 On 23 May 2017 the trial court entered a Non-Secure Custody Order granting custody of Joe to DSS. On 13 December 2017, the trial court entered an Order adjudicating Joe as neglected as defined by N.C. Gen. Stat. § 7B-101(15).

¶ 4 On 16 February 2018, the trial court entered an Order of Disposition. The trial court found Respondent-Mother had recently initiated substance abuse treatments as well as individual and family therapy; however, she did not consistently attend her supervised visitations with Joe. The trial court ordered Respondent-Mother to complete the following case plan:

a. Enroll in, successfully complete, and demonstrate a knowledge from age appropriate parenting classes;

b. Upon request submit to random urinalysis at the Department;

c. Obtain and maintain suitable and stable employment;

d. Obtain and maintain suitable and stable housing;

e. Submit to, engage in, and complete a substance abuse assessment, and follow through with any recommendations contained therein, to include treatment and/or education; and

f. Be allowed supervised visitation with the juveniles in a therapeutic setting, supervised by the juveniles’ therapist, pursuant to a schedule developed by the Department.

¶ 5 However, at a subsequent 21 February 2018 hearing, the trial court held Respondent-Mother in criminal contempt of court finding Respondent-Mother attended the hearing in an impaired and disruptive state. Respondent-Mother was ordered to submit to a urinalysis which later tested positive for alcohol, cocaine, and marijuana. The trial court ordered Respondent-Mother to spend 92 hours in the Cumberland County Detention Center.

¶ 6 On 6 July 2018, the trial court entered a Subsequent Permanency Planning Order. The trial court found Respondent-Mother had recently obtained stable housing and received disability. However, the trial court also found Respondent-Mother was not maintaining consistent contact with DSS, would not submit to random drug screenings, continued to inconsistently visit Joe, and smelled of alcohol during her supervised visitation. The trial court found:

17. With regard to the juveniles, the failure of Respondents to address the issues which gave rise to the removal of the juveniles from the home within a timely manner and in a reasonable manner, constituted a waiver of their constitutional rights of paramount custody with regard to their children. The Respondents have abdicated their responsibilities as parents and acted inconsistent with their constitutionally protected status as parents․

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27. The Court is placing Respondent Mother on notice that she is to engage in a case plan with the Department and begin service. Her failure to engage in the case plan and submit to random drug screens could result in the Department being relieved of reunification efforts with her at the next hearing in this matter. To date, Respondent Mother has not engaged in a case plan or submitted to random drug screens at the Department. Additionally, this Court has a concern regarding her being under the influence in the presence of the juvenile. Therefore, the Court finds that Respondent Mother's visits shall be ceased until such time as she submits to two (2) consecutive, negative drug screens.

¶ 7 The trial court also found that Respondent-Mother was not making reasonable progress in her case plan and was not a fit or proper person to have care, custody, or control over Joe. Therefore, returning Joe to Respondent-Mother's care would be contrary to his welfare and best interest. The trial court ordered Joe's primary permanent plan to be adoption and his secondary permanent plan to be reunification.

¶ 8 The trial court entered a Subsequent Permanency Planning and Motion for Review Order on 7 February 2019. The trial court found Respondent-Mother was living in a hotel, attending individual therapy, and participating in substance abuse treatment. However, Respondent-Mother continued to test positive for cocaine and did not maintain consistent contact with DSS. The trial court found that:

31. With regard to the juveniles, the failure of the Respondents to address issues which gave rise to the removal of the juveniles from the home within a timely manner and in a reasonable manner, constituted a waiver of their constitutional rights of paramount custody with regard to their children. The Respondents have abdicated their responsibilities as parents and acted inconsistent with their constitutionally protected rights.

The trial court ordered Joe's primary permanent plan to be adoption and his secondary permanent plan to be reunification.

¶ 9 The trial court entered a Subsequent Permanency Planning Order on 25 July 2019. The trial court found that Respondent-Mother needed to complete an age-appropriate parenting class and could not provide proof of stable housing. The trial court also found that Respondent-Mother admitted to using illegal substances on 4 February 2019 and had “a history of substance abuse that is of a long-standing and enduring nature and this pattern is likely to continue well into the foreseeable future.” The trial court found Respondent-Mother was not a fit or proper person to have custody of Joe and that reunification would be contrary to his health and safety. The trial court ordered Joe's primary permanent plan to be adoption and his secondary permanent plan to be guardianship.

¶ 10 On 16 October 2020 the trial court entered a Subsequent Permanency Planning Order. The trial court found that Joe had been in DSS custody for over 1168 days, and as such, DSS should proceed with their Petition to Terminate Parental Rights. The trial court found that:

[A]ny further efforts to reunify Respondents with the juveniles would be clearly unsuccessful and inconsistent with the juveniles’ health, safety, and need for a safe, permanent home within a reasonable period of time, and such efforts should remain ceased based on the foregoing findings of fact. Respondents are not making adequate progress within a reasonable period of time to achieve a permanent plan of reunification. Respondents are not actively participating in or cooperating with a permanent plan of reunification, the Cumberland County Department of Social Services, and the Guardian ad Litem.

¶ 11 The trial court ordered Joe's primary and secondary permanent plans to remain unchanged and for Respondent-Mother to successfully complete a parenting class, parenting assessment, and psychological evaluation.

¶ 12 On 25 November 2020, Respondent-Mother completed a Psychological Evaluation and Parenting Assessment (Evaluation/Assessment) with Deniz Dogan, MS, LPA at CommuniCare Inc. in Cumberland County. Respondent-Mother's Evaluation/Assessment contained the following statement:

On September 15, 2020, [Respondent-Mother] self-referred to the Elite Care Clinic. Records stated [Respondent-Mother] admitted to still using crack and alcohol ․ On September 26, 2020, Respondent-Mother tested positive for benzodiazepines, cocaine, alcohol, and ethanol. On October 29, 2020, [Respondent-Mother] was cooperative and took a urine screening at Cumberland County CommuniCare. [Respondent-Mother] tested positive for hydrocodone, hydromorphone, norhydrocodone, and dihydrocodine.

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Recommendations:

1. Random alcohol and drug screening are recommended due to [Respondent-Mother's] history of substance use.

2. [Respondent-Mother] should be engaged in substance abuse treatment to address her use as recent as September 2020. She may also benefit from attending an Alcoholics Anonymous group.

3. It is recommended [Respondent-Mother] attend individual Cognitive Behavioral Therapy to address her symptoms of depression, anxiety, and trauma.

4. If reunification is considered, [Respondent-Mother] should be required to attend family therapy with an emphasis on strengthening her relationship with her children and to address boundaries and parenting skills.

5. It is recommended that [Respondent-Mother] receive a medication evaluation related to her symptoms of depression and anxiety that takes into account her addiction potential.

¶ 13 On 22 January 2021, Deniz Dogan, MS, LPA completed an addendum to Respondent-Mother's Evaluation/Assessment which stated:

This is an addendum to [Respondent-Mother's] report from 11/25/2020. This addendum is added due to an error in the previous report which indicated [Respondent-Mother] tested positive for drugs on September 26, 2020, however, the correct date was September 26, 2019.

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Given her history, it is recommended:

1. [Respondent-Mother] receive random alcohol and drug screenings due to her history of substance use.

2. [Respondent-Mother] should be engaged in substance use treatment to address her use as recent as September 2020. She may also benefit from attending an Alcoholics Anonymous group.

¶ 14 The matter ultimately came back for a hearing on 1 February 2021 for another Permanency Planning Review giving rise to the instant appeal. On 21 July 2021, the trial court entered its Subsequent Permanency Planning Order and an Order Waiving Further Reviews. The Corrected Order was entered on 26 July 2021. The Corrected Order changed the recorded hearing date from 2 February 2021 to 1 February 2021 but otherwise remained identical to the 21 July 2021 Order.

¶ 15 The trial court found that, “[a]mong the issues which led to the removal of the juveniles were substance abuse issues” and that Joe had been in his foster home since 23 May 2017. Joe's therapist recommended he not have any contact with family members other than his younger sister, and Joe expressed his desire to stay with his Foster-Parents.

¶ 16 The trial court also made numerous Findings of Fact, the majority of which, Respondent-Mother does not contest in her appeal. For example, the trial court found that Respondent-Mother had consistently engaged in substance abuse treatment from January 2020 to September 2020, and that Respondent-Mother had positive drug screens on 6 January 2020 (alcohol and cocaine), 16 January 2020 (alcohol and cocaine), 21 January 2020 (cocaine), 7 February 2020 (opiates, codeine, and morphine), 10 February 2020 (opiates, codeine, and morphine). Respondent-Mother also provided negative drug screens on 27 January 2020, 31 January 2020, 3 February 2020, 3 March 2020, 10 March 2020, 20 March 2020, 24 March 2020, 31 March 2020, and again on 15 September 2020. Additionally, in Finding #17, the trial court found that:

17. Respondent Mother has not submitted to a drug screen since September 15, 2020. She remains in need of a parenting assessment and parenting classes. As of today's date, the Respondent Mother cannot provide for a stable environment for the minor children. She admitted in her testimony to using cocaine while pregnant with [Joe] and being unaware of the trauma he has been subject to during his life while in the care, custody, and control of her and his father.

¶ 17 Moreover, in Finding #18—the only Finding of Fact contested in Respondent-Mother's appeal—the trial court found that:

18. In Respondent Mother's psychological report and in the addendum to her psychological report, it states that Respondent Mother reported to Elite care services that she relapsed on alcohol and crack cocaine in September of 2020. Respondent Mother denies this in her testimony today and reports that she has not used crack cocaine or alcohol since January 12, 2020. Additionally, the psychological report addendum states that she tested positive for opiates on 6/8/2020, 6/15/2020, 7/30/2020, 8/4/202, and 9/1/2020 at Elite care services. Respondent Mother contends that she had a valid prescription for opiates for those dates, however no records of such were provided to the assessor performing the psychological [examination]. The Social Worker verified that Respondent Mother has a prescription for opioids but did not verify what time frame the prescription covered. The Court continues to have grave concerns given Respondent Mother's long-standing history of substance abuse, extensive history of testing positive for illicit substances, and history of relapse after short periods of sobriety. Recommendations from the addendum to her psychological [examination] and her psychological [examination] itself contain, but are not limited to, that she should be engaged in substance abuse treatment to address her use as recent as September 2020.

¶ 18 In Finding #23, the trial court addressed Respondent-Mother's lack of adequate progress regarding her case plan and its concerns regarding Respondent-Mother's sobriety as:

23. Respondents have not made adequate progress within a reasonable period of time to achieve a permanent plan of reunification. Respondent Mother only recently began actively participating in or cooperating with a permanent plan of reunification, the Cumberland County Department of Social Services, and the Guardian Ad Litem. In the past, Respondent Mother has had brief periods of engagement in services and then she would relapse. Therefore, the Court is concerned about the Respondent Mother's ability to maintain her sobriety.

¶ 19 Lastly, in Findings #32, #33, and #34, the trial court examined Joe's lack of a sense of permanence, and how reunification with Respondent-Mother was unlikely to happen immediately or within six-months as:

32. It is not possible for the juvenile [Joe] to return home immediately, or within the next six (6) months, inasmuch as the Respondents have failed to alleviate the conditions which led to the removal of the juvenile. Return of the juvenile to the custody and home of the Respondent Mother or Respondent Father would be contrary to the health, safety, welfare, and best interests of the juvenile. The juvenile remains in need of more adequate care and supervision than can be provided by the Respondents at this time. Respondent Mother has completed substance abuse services through Elite Care Servies; however, these services have not alleviated the conditions which led to the removal of the juveniles. Respondent Mother has been historically inconsistent in maintaining sobriety for any extended period of time. Respondent Mother has a significant history of substance abuse that is of a long-standing and enduring nature. Respondent Father has not completed nor engaged in any of the recommended services. Therefore, it is not possible for the juvenile Joe to return to either Respondents’ home[s] at this time.

33. Inasmuch as the juvenile [Joe's] placement with a parent is unlikely within six months, a legal guardian should be established with Respondent Mother being allowed to receive updates on the juvenile's educational progress and medical condition. Adoption should not be pursued inasmuch as the primary permanent plan is guardianship and the juvenile [Joe's] current placement has indicated a willingness to be a permanent guardian for the juvenile. Thus, the juvenile [Joe] should remain with the current placement inasmuch as a return to the home of either Respondent Parent is not likely to occur in within the next six months.

34. The juvenile [Joe's] current placement is going well. Furthermore, the juvenile's current [Foster-Parent] was present in Court on today's date and provided the Court with sworn testimony. The [Foster-Parents] have the financial means and ability to care for the juvenile on a permanent basis but more importantly the placement providers desire to care for the juvenile on a more permanent basis. Therefore, the juvenile should remain with current placement and permanence with this placement should be established by making the [Foster-Parents] guardians of the juvenile pursuant to N.C. Gen. Stat. § 7B-600.

¶ 20 The trial court concluded as a matter of law that, “as it relates to Joe, the primary permanent plan of guardianship is in the best interest of the juvenile. The Court affirms the permanent plans.” The trial court ordered that “[Foster-Parents] are hereby awarded guardianship of the juvenile Joe pursuant to N.C. Gen. Stat. § 7B-600.” On 19 August 2021 and 24 August 2021 Respondent-Mother filed Notice of Appeal from the 21 July 2021 Subsequent Permanency Planning Order and the 25 July 2021 Order Waiving Further Reviews and a Corrected Subsequent Permanency Planning Order and Order Waiving Further Reviews.

Issue

¶ 21 The dispositive issue on appeal is whether the trial court's Findings of Fact in its 21 July and 25 July Orders support its Conclusions of Law confirming Joe's primary permanent plan as Guardianship and awarding Guardianship of Joe to his foster parents.

Analysis

¶ 22 This Court has appellate jurisdiction to review this matter under N.C. Gen. Stat. § 7B-1001(a)(4), § 7B-1002(4), and N.C. R. App. P. 3.1. Appellate review of a permanency planning order is “limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. The trial court's findings of fact are conclusive on appeal when supported by any competent evidence, even if the evidence could be sustained contrary to findings.” In re J.S., 250 N.C. App. 370, 372, 792 S.E.2d 861, 863 (2016) (quoting In re J.H., 244 N.C. App. 255, 268, 780 S.E.2d 228, 238 (2015)). “Factual findings that are not challenged on appeal are deemed to be supported by the evidence and are binding on appeal.” Id.

¶ 23 Here, Respondent-Mother does not contend the trial court's fifty Findings of Fact are unsupported by evidence. Rather, Respondent-Mother contends the trial court's Findings do not support its Conclusions of Law. Notably, Respondent-Mother fails to identify any specific Conclusion of Law she contends is unsupported by the Findings of Fact, instead arguing in generic form the trial court erred in concluding she was unfit to exercise custody of Joe and/or had acted inconsistently with her constitutionally protected status as a parent.

¶ 24 Moreover, of the fifty Findings made by the trial court, Respondent-Mother challenges only one—Finding #18—which states:

18. In Respondent Mother's psychological report and in the addendum to her psychological report, it states that Respondent Mother reported to Elite care services that she relapsed on alcohol and crack cocaine in September of 2020. Respondent Mother denies this in her testimony today and reports that she has not used crack cocaine or alcohol since January 12, 2020. Additionally, the psychological report addendum states that she tested positive for opiates on 6/8/2020, 6/15/2020, 7/30/2020, 8/4/2020, and 9/1/2020 at Elite care services. Respondent Mother contends that she had a valid prescription for opiates for those dates, however no records of such were provided to the assessor performing the psychological. The Social Worker verified that Respondent Mother has a prescription for opioids but did not verify what time frame the prescription covered. The Court continues to have grave concerns given Respondent Mother's long-standing history of substance abuse, extensive history of testing positive for illicit substances, and history of relapses after short periods of sobriety. Recommendations from the addendum to her psychological and her psychological itself contain, but are not limited to, that she should be engaged in substance abuse treatment to address her use as recent as September 2020.

¶ 25 Respondent-Mother contends this Finding merely recites the contents of the psychological report and addendum alleging Respondent-Mother relapsed in September 2020 and thus does not constitute a true Finding of Fact that Respondent-Mother had, in fact, relapsed in September 2020.

¶ 26 It has long been recognized that when a trial court is required to make Findings of Fact this requires the trial court to make “specific findings of the ultimate facts established by the evidence, admissions and stipulation which are determinative of the questions involved in the action and essential to support the conclusions of law reached.” In re T.N.H., 372 N.C. 403, 408, 831 S.E.2d 54, 59 (2019) (quoting Quick v. Quick, 305 N.C. 446, 451–52, 290 S.E.2d 653, 658 (1982) (emphasis in original)). “Ultimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts.” Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988). As such, “[t]hese findings ‘must be more than a recitation of allegations. They must be the specific ultimate facts ․ sufficient for the appellate court to determine that the judgement is adequately supported by competent evidence.’ ” In re J.W., 241 N.C. App. 44, 48, 772 S.E.2d 249, 253 (2015) (quoting In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (internal quotations omitted)). It also follows then that “[r]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge.” In re N.D.A., 373 N.C. 71, 75, 833 S.E.2d 768, 772 (2019) (quoting Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75 (2003) (citation omitted)); In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (findings simply reciting the evidence presented at trial are not the required ultimate findings of fact). However, “[t]here is nothing impermissible about describing testimony, so long as the court ultimately makes its own findings, resolving any material disputes[.]” In re A.E., 2021-NCSC-130, ¶ 18 (quoting In re T.N.H., 372 N.C. at 408, 831 S.E.2d at 59).

¶ 27 In this case, it is true Finding of Fact #18 begins with a summary of the contents of the psychological report and addendum reciting Respondent-Mother's report of relapsing on cocaine and alcohol, Respondent-Mother's subsequent denial, her positive opioid tests, and recommendations for further substance abuse treatment. However, the trial court goes on in that very finding to explain the context in which it considered this report in the permanency planning stage by employing a process of logical reasoning to place these 2020 reports in the context of Respondent-Mother's extensive history of substance abuse problems. The trial court found that in light of these more recent reports: “The court continues to have grave concerns given Respondent Mother's long-standing history of substance abuse, extensive history of testing positive for illicit substances, and history of relapse after short periods of sobriety.” The fact this report left the trial court gravely concerned with Respondent-Mother's history of relapse would certainly be a factor in the trial court's decision as to whether there was a likelihood of future neglect should Joe be returned to Respondent-Mother's custody, whether efforts towards reunification should be restarted, and whether a Guardianship would be in the best interest of Joe. Thus, Finding of Fact #18 reflects the trial court's logic and reasoning in considering reports of Respondent-Mother's relapse and recommendations for ongoing treatment in the context of Respondent-Mother's extensive history of substance abuse and relapses. Therefore, Finding of Fact #18 is not a mere recitation of evidence and may be used to support the trial court's ultimate findings and conclusions.

¶ 28 Moreover, Finding of Fact #18 should, itself, not be taken in isolation. The trial court made extensive Findings of Fact supporting its decision—particularly as it relates to Respondent-Mother's history of substance abuse and prior engagement in efforts towards reunification. For example, the trial court found Joe had been in DSS custody since May 2017 and that one of the reasons Respondent-Mother's children were placed into DSS custody was her substance abuse. The trial court found Respondent-Mother had been consistently engaged in substance abuse treatment since January 2020 with positive drug screens on 6 January 2020 (alcohol and cocaine), 16 January 2020 (alcohol and cocaine), 21 January 2020 (cocaine), 7 February 2020 (opiates, codeine, and morphine), 10 February 2020 (opiates, codeine, and morphine). Respondent-Mother also provided negative drug screens on 27 January 2020, 31 January 2020, 3 February 2020, 3 March 2020, 10 March 2020, 20 March 2020, 24 March 2020, 31 March 2020, and again on 15 September 2020. The trial court also made findings concerning Respondent-Mother's lack of progress to correct conditions leading to removal and ability to provide a stable environment:

17. Respondent Mother has not submitted to a drug screen since September 15, 2020. She remains in need of a parenting assessment and parenting classes. As of today's date, the Respondent-Mother cannot provide for a stable environment for the minor children. She admitted in her testimony to using cocaine while pregnant with Joe and being unaware of the trauma he has been subject to during his life while in the care, custody, and control of her and his father.

Additionally, the trial court found Respondent-Mother had only recently made efforts towards reunification:

23. Respondents have not made adequate progress within a reasonable period of time to achieve a permanent plan of reunification. Respondent-Mother only recently began actively participating in or cooperating with a permanent plan of reunification, the Cumberland County Department of Social Services, and the Guardian Ad Litem. In the past, Respondent-Mother has had brief periods of engagement in services and then she would relapse. Therefore, the Court is concerned about the Respondent-Mother's ability to maintain her sobriety.

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32. It is not possible for the juvenile Joe to return home immediately, or within the next six (6) months, inasmuch as the Respondents have failed to alleviate the conditions which led to the removal of the juvenile. Return of the juvenile to the custody and home of the Respondent-Mother or Respondent-Father would be contrary to the health, safety, welfare, and best interests of the juvenile. The juvenile remains in need of more adequate care and supervision than can be provided by the Respondents at this time. Respondent-Mother has completed substance abuse services through Elite Care Servies; however, these services have not alleviated the conditions which led to the removal of the juveniles. Respondent-Mother has been historically inconsistent in maintaining sobriety for any extended period of time. Respondent-Mother has a significant history of substance abuse that is of a long-standing and enduring nature. Respondent-Father has not completed nor engaged in any of the recommended services. Therefore, it is not possible for the juvenile Joe to return to either Respondents’ home[s] at this time.

33. Inasmuch as the juvenile Joe's placement with a parent is unlikely within six months, a legal guardian should be established with Respondent-Mother being allowed to receive updates on the juvenile's educational progress and medical condition. Adoption should not be pursued inasmuch as the primary permanent plan is guardianship and the juvenile Joe's current placement has indicated a willingness to be a permanent guardian for the juvenile. Thus, the juvenile Joe should remain with the current placement inasmuch as a return to the home of either Respondent-Parent is not likely to occur in within the next six months.

¶ 29 Respondent-Mother makes no challenge to these Findings on appeal, and they are, thus, binding. Moreover, Respondent-Mother makes no argument that these Findings fail to support the trial court's Conclusions of Law. Thus, we conclude the trial court's Findings taken in totality support the trial court's Conclusions of Law. Therefore, based on these Findings and Conclusions, the trial court did not err in awarding Guardianship of Joe to Joe's foster parents to implement the trial court's permanent plan. Consequently, we affirm the trial court's 21 July 2021 Order and the corrected 25 July 2021 Order.

Conclusion

¶ 30 Accordingly, for the foregoing reasons we affirm the court's 21 July 2021 Subsequent Permanency Planning Order and Order Waiving Further Reviews and 25 July 2021 Corrected Subsequent Permanency Planning Order and Order Waiving Further Reviews.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   The juvenile is referred to by the pseudonym stipulated by the parties. The case history involves Joe's sibling who is not the subject of this appeal. Respondent-Father is not a party to this appeal.

HAMPSON, Judge.

Judges DILLON and DIETZ concur.