In re: S.R.J.T.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-94

No. COA20-29

Filed 6 April 2021

Wilkes County, No. 15 JA 200

IN THE MATTER OF: S.R.J.T.

Appeal by respondent-mother from orders entered on 17 July 2018 and 27

September 2019 by Judge David V. Byrd in District Court, Wilkes County. Heard in

the Court of Appeals 17 November 2020.

Vannoy, Colvard, Triplett & Vannoy, PLLC, by Daniel S. Johnson, for

petitioner-appellee Wilkes County Department of Social Services.

Lisa Anne Wagner for respondent-appellant-mother.

STROUD, Chief Judge.

¶1 Respondent-Mother appeals from the trial court’s order adjudicating Scottie1

as a neglected and dependent juvenile and from the trial court’s disposition order

which ceased reunification efforts and granted guardianship of Scottie to his aunt.

Because the trial court’s findings support its conclusion that Scottie was neglected,

we affirm the adjudication order as to neglect, and we affirm in part, reverse in part,

1 Pseudonyms are used to protect the identity of the juvenile.

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and remand the disposition order for entry of an order containing findings of fact in

compliance with North Carolina General Statute § 7B-906.1(n).

I. Background

¶2 Mother has an extensive history with the Wilkes County Department of Social

Services (“DSS”), and her parental rights were terminated to two children in 2008

and 2010. DSS initially removed Scottie and his brother2 in 2015 due to issues of

domestic violence and substance abuse. Scottie was adjudicated neglected, and

Mother previously appealed this order. On 20 June 2017, this Court reversed the

trial court’s adjudication order in an unpublished opinion. See In re J.L.T. and

S.R.J.T., 254 N.C. App. 240, 801 S.E.2d 391 (2017) (unpublished).

¶3 On 3 July 2017, DSS filed a new petition alleging Scottie was neglected and

dependent. An adjudication hearing was held on 18 December 2017. On 17 July 2018

the trial court entered an adjudication order which declared Scottie to be neglected

and dependent. Disposition hearings were held on 8 January 2018, 6 March 2018,

and 21 August 2018. The written disposition order, entered on 27 September 2019,

ceased reunification efforts, granted guardianship of Scottie to his paternal aunt, and

suspended visitation and further hearings. Mother timely appealed from the

2 Mother has only appealed as to Scottie, and Scottie’s Father is not a party to this appeal.

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disposition order and petitioned this Court for a writ of certiorari in the event we

found her notice of appeal to be defective.

II. Petition for Writ of Certiorari

¶4 Mother’s notice of appeal stated, Mother “hereby gives Notice of Appeal to the

Court of Appeals of North Carolina from the Adjudication Judgment and

Dispositional Order that was filed on September 27th 2019.” However, the

adjudication order was filed on 17 July 2018. Because we can infer from the notice of

appeal that Mother intended to appeal the both the adjudication and disposition

orders, in our discretion, we allow her petition as to the disposition order. N.C. R.

App. P. 21(a)(1).

III. Adjudication

¶5 Mother argues, “[t]he trial court erred by adjudicating Scottie neglected and

dependent when the trial court failed to make necessary finding of fact, there is

insufficient evidence to support the findings of fact the trial court did make, and the

findings that are supported by the evidence are insufficient to support its conclusions

of law.”

A. Standard of Review

We review an adjudication under N.C. Gen. Stat. § 7B-807

to determine whether the trial court’s findings of fact are

supported by clear and convincing competent evidence and

whether the court’s findings support its conclusions of law.

The clear and convincing standard is greater than the

preponderance of the evidence standard required in most

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civil cases. Clear and convincing evidence is evidence

which should fully convince. . . . [W]e review a trial court’s

conclusions of law de novo.

In re N.K., ___ N.C. App. ___, ___, 851 S.E.2d 389, 392 (2020) (quoting In re M.H., ___

N.C. App. ___, ___, 845 S.E.2d 908, 911 (2020)). Unchallenged findings are binding

on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

B. Adjudication of Neglect

¶6 Mother argues, “DSS failed to present any evidence that the children were

present for, or impacted by, any acts of domestic violence or substance use, or that

they suffered any physical, mental or emotional impairment as a result.”

¶7 A neglected juvenile is defined as one

who does not receive proper care, supervision, or discipline

from the juvenile’s parent, guardian, custodian, or

caretaker; or who has been abandoned; or who is not

provided necessary medical care; or who is not provided

necessary remedial care; or who lives in an environment

injurious to the juvenile’s welfare[.]

N.C. Gen. Stat. § 7B-101(15) (2017). “[I]n order for a court to find that the child

resided in an injurious environment, evidence must show that the environment in

which the child resided has resulted in harm to the child or a substantial risk of

harm.” In re K.J.B., 248 N.C. App. 352, 354, 797 S.E.2d 516, 518 (2016). “A trial

court’s failure to make specific findings regarding a child’s impairment or risk of harm

will not require reversal where the evidence supports such findings.” Id.

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¶8 Here, the trial court found:

5. The Respondents have unstable living arrangements

and maintain a strange, ongoing, and inappropriate

relationship with one another. [Mother] alternates living

with [Scottie’s Father] and [Aaron], choosing to stay with

whichever father has money and drugs to offer to her.

6. [Mother] and [Scottie’s Father] have failed numerous

drug screens during the time that the children have been

in the care of DSS.

....

8. On October 6, 2017, the Respondents submitted to hair

follicle drug tests and the results were as follows: [Mother]:

positive for amphetamines and methamphetamine[.]

9. On October 13, 2017, social worker Carver made a

surprise visit to [Aaron’s] home. When she arrived, [Aaron]

was lying on a couch and [Mother] was scurrying around

the kitchen. [Mother] told social worker Carver that she

was pouring a beer out. Social worker Carver noticed a

needle on the kitchen counter, two more needles in the

sink, a packet of some sort, and a spoon containing a

burned substance. [Aaron] told the social worker that he

didn’t know why [Mother] was using the “junk” in his

home. [Mother] admitted that she was using drugs and

that she was depressed since her children had not been at

home.

....

13 Since the children have been in the care of DSS, . . . .

[Scottie] has been diagnosed with post-traumatic stress

disorder.

15. [Scottie] receives counseling from Brooke Gregory at

Kids Count Pediatrics. Therapist Gregory was duly

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qualified as an expert witness and provided the following

opinions regarding [Scottie]:

(a) He suffers from post-traumatic stress

disorder as a result of matters he witnessed

while in the care of [Mother] and [Scottie’s

Father], including drug use, domestic

violence, and his mother moving back and

forth between [Scottie’s Father] and [Aaron];

(b) He regressed in treatment following visits

with his parents. Interaction with his parents

increased his behaviors of acting out, not

listening, and oppositional defiance;

(c) He experienced nightmares of being left

alone and someone cutting his head off after

contact with his parents;

(d) He was exposed to sexual behavior during

the time that he was with his parents. He has

talked to other children about sexual behavior

and engaged in sexualized conduct; and

(e) It is not in the best interests for [Scottie]

to have visitation with his biological parents.

And the trial court concluded:

3. With regard to neglect, each child would be placed at a

serious risk of impairment in the event that they were

placed with their parents due to the parents’ ongoing drug

abuse and their unstable living arrangements. Each of the

children would be placed at substantial risk of physical,

mental, and emotional impairment in the event that they

were returned to their parents.

1. Finding of Fact No. 15

¶9 Mother raises several arguments regarding Finding of Fact No. 15. Mother

argues that portions of finding of fact 15(a) and (e) are conclusions of law and should

be reviewed de novo. We disagree. First, we note that Finding No. 15 is phrased as

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a recitation of testimony as to facts about the juvenile since it specifically lists the

observations and opinions of Therapist Gregory. See In re L.C., 253 N.C. App. 67, 70,

800 S.E.2d 82, 86 (2017). Although recitations of evidence may not allow for

appropriate appellate review where the trial court fails to make findings

demonstrating if it found the evidence to be credible, id., when we consider Finding

No. 15 in the context of the entire order, the trial court did determine the evidence to

be credible and this finding is supported by the evidence. To the extent that Finding

15(e) is a finding of fact and not a recitation of testimony, we review the trial court’s

determination of whether visitation is in the best interest of the juvenile for abuse of

discretion. In re C.M., 183 N.C. App. 207, 215, 644 S.E.2d 588, 595 (2007) (“This

Court reviews the trial court’s dispositional orders of visitation for an abuse of

discretion.”).

¶ 10 Mother also contends Finding 15(d) is not supported by the evidence. Ms.

Gregory testified about the reasons she saw Scottie:

Q. Why did you begin work counseling with [Scottie]?

A. He was referred to my case load due to family

circumstances where he was removed from his family and

lives with [his Aunt]. There’s a pretty significant neglect

and abuse history there, so he has post-traumatic stress

disorder.

Q. When did you diagnose [Scottie] with post-traumatic

stress disorder?

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A. On 6/14/16.

Q. And it’s your opinion that that stress disorder resulted

from abuse and the circumstances that he encountered in

his parents home?

A. Yes, sir.

Q. How did you arrive at that diagnosis?

A. Well, there are several criteria you need in order to get

diagnosed with post-traumatic stress disorder. [Scottie]

exhibits mood changes, anxiety, sleep disturbances, eating

disturbances, attachment issues, and [Scottie] qualifies for

all of those.

....

Q. Now, has [Scottie] indicated to you during counseling

sessions that he had witnessed his parents using illegal

drugs?

A. Yes.

Q. What did he tell you about seeing his parents use illegal

drugs?

A. He has talked about seeing needles. There’s an actual

quote here in the letter from July 19th, 2017 that I

provided for Department of Social Services. “My parents

will never get me back because they do drugs. They take a

shot every day. I have seen them. They put medicine in

their arm with a shot.”

Ms. Gregory testified, “There has been some sexualized behavior after he has

interacted with his parents that comes out in session. I don’t have enough to pursue

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that at this moment[.]” On cross examination, Ms. Gregory stated, “I’m not sure

where the sexualized behavior has come from.”

¶ 11 The portion of the finding of fact 15(d) about exposure to sexual behavior

“during the time that he was with his parents” is not supported by clear and

convincing evidence. The rest of the challenged portions of Finding No. 15 are

supported by clear and convincing evidence which support the trial court’s conclusion

that Scottie was a neglected juvenile. In re N.G., 186 N.C. App. at 12-13, 650 S.E.2d

at 52. In addition, these findings, considered along with the other unchallenged

findings regarding drug abuse and domestic violence in the home, Scottie’s regression

after visitation with the parents, and the diagnosis of post-traumatic stress disorder

demonstrate that “the environment in which the child resided has resulted in harm

to the child or a substantial risk of harm.” In re K.J.B., 248 N.C. App. at 354, 797

S.E.2d at 518. We affirm the trial court’s adjudication of neglect on this basis and

need not address the other adjudicatory grounds in the court’s order. See In re F.C.D.,

244 N.C. App. 243, 250, 780 S.E.2d 214, 220 (2015) (“Because this ground standing

alone is sufficient to support the adjudication of abuse, we need not address the trial

court’s two other grounds for adjudicating . . . an abused juvenile.”).

IV. Disposition Order

¶ 12 Mother argues, “[t]he trial court reversibly erred and abused its discretion by

ceasing reunification, granting guardianship of Scottie to his paternal aunt at the

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initial disposition, and waiving review hearings without making statutorily required

findings.”

A. Standard of Review

¶ 13 “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. at 213, 644 S.E.2d at 594. “An abuse of

discretion occurs when a trial court’s ruling is so arbitrary that it could not have been

the result of a reasoned decision.” Id. This Court “review[s] statutory compliance de

novo.” In re N.K., ___ N.C. App. at ___, 851 S.E.2d at 395.”

B. Reunification

¶ 14 “Reunification shall remain a primary or secondary plan unless the court made

findings under G.S. 7B-901(c) or 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) (2017).

At any permanency hearing . . . the trial court shall make

written findings as to each of the following, which shall

demonstrate lack of success:

(1) Whether the parent is making adequate

progress within a reasonable period of time

under the plan.

(2) Whether the parent is actively

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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 and safety of the

juvenile.

N.C. Gen. Stat. § 7B-906.2(d) (2017).

Although “use of the actual statutory language [is] the best

practice, the statute does not demand a verbatim recitation

of its language.” Instead, “the order must make clear that

the trial court considered the evidence in light of whether

reunification 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.”

In re L.E.W., 375 N.C. 124, 129-30, 846 S.E.2d 460, 465 (2020) (alteration in original)

(citation omitted).

¶ 15 Here, the trial court found as following regarding Scottie:

1. The status of the above-named minor children is

accurately described in the Court Summaries and Reports

prepared by DSS and the GAL which were introduced into

evidence for purposes of disposition in these matters and

are incorporated herein by reference as Findings of Fact.

2, The children have been declared neglected and

dependent juveniles as those terms are defined by N.C.G.S.

§ 7B-101.

3. The children have not been in the custody of their

parents since the fall of 2015. It would be contrary to the

children’s health and safety to be returned to the home of

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a parent as a result of their special needs and the

instability of their parents.

4. There are no issues regarding paternity of the children.

...

5. The Court has considered the requirements of N.C.G.S.

§ 7B-901(c) and finds that DSS should not be required to

utilize reasonable efforts to reunify the children with a

parent. [Mother] and [Scottie’s Father] have had their

parental rights terminated involuntarily to other children.

Each of these parents have a significant history of

substance abuse and their living arrangements are not

suitable. . . .

6. [Scottie] has been placed in the care of his paternal aunt,

[Rebecca], since April 2016. He has been diagnosed with

post-traumatic stress disorder from exposure to domestic

violence, abuse, and his parents’ substance abuse which he

witnessed while in the care of his parents. He displays

anxiety, mood changes, sleep and eating disorders, and

attachment issues. He is fearful of being removed from his

aunt. [Scottie] receives counseling from therapist Brooke

Gregory at Kids Count Pediatrics. Visitation between

[Scottie] and his parents was ceased at the

recommendation of therapist Gregory. [Scottie] has told

the GAL’s office that he does not want to live with his

parents.

....

8. [Rebecca] has the financial means and capability to care

for [Scottie]. She has provided care solely for the child with

no assistance from his parents for over two years. [Rebecca]

understands the legal significance of the appointment and

has adequate resources to care appropriately for the child.

[Scottie] is bonded to his aunt.

9. The children are not members of a state or federally

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recognized Indian tribe.

The trial court concluded:

1. The Court has jurisdiction of the subject matter and the

parties.

2. DSS made reasonable efforts to prevent or eliminate the

need for placement of the minor children; however, these

efforts were not effective in light of the parents’ histories of

drug abuse, instability, and incarceration. DSS . . . placed

[Scottie] in the care of a paternal relative.

3. The best interests of the minor children would be best

served by the disposition set forth in the Decree below. DSS

shall not be required to utilize reasonable efforts to reunify

either child with a parent.

4. Any Finding of Fact that is a more appropriate

Conclusion of Law is incorporated herein by reference.

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is ORDERED, ADJUDGED, AND

DECREED that:

....

3. [Rebecca] is appointed as guardian of the person of

[Scottie] pursuant to N.C.G.S. § 7B-600. No accountings or

bond shall be required. No further review hearings shall

be required concerning this child. Neither of [Scottie’s]

parents shall have any visitation unless the same is

approved by the Court.

These findings make it clear that the trial court “considered the evidence in light of

whether reunification 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

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time.” Id. at 129-30, 846 S.E.2d at 465. In addition, the trial court did not abuse its

discretion by ceasing reunification efforts based upon these findings.

C. Guardianship

¶ 16 Mother argues, “[t]he trial court reversibly erred by failing to make necessary

findings of fact to support its order granting guardianship of Scottie to [Rebecca].”

Mother argues the trial court did not make a finding that her conduct was

inconsistent with her constitutionally protected status as a parent and she had

“participated in a substance abuse assessment and begun receiving [substance abuse]

treatment, had consistently been providing clean drug screens . . . had inquired of

DSS what she could provide for Scottie’s needs, and was on waiting lists for housing

of her own.” DSS argues that Mother did not raise this constitutional issue at trial

and should not be considered for the first time on appeal.

“‘[P]arents have a constitutionally protected right to

the custody, care and control of their child, absent a

showing of unfitness to care for the child.’” “[A] parent may

lose the constitutionally protected paramount right to child

custody if the parent’s conduct is inconsistent with this

presumption or if the parent fails to shoulder the

responsibilities that are attendant to rearing a child.”

Prior to granting guardianship of a child to a nonparent, a

district court must “clearly address whether [the]

respondent is unfit as a parent or if [his] conduct has been

inconsistent with [his] constitutionally protected status as

a parent[.]” “[A] trial court’s determination that a parent’s

conduct is inconsistent with his or her constitutionally

protected status must be supported by clear and convincing

evidence.”

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In re R.P., 252 N.C. App. 301, 304, 798 S.E.2d 428, 430 (2017) (alterations in original)

(citations omitted).

¶ 17 This Court has held that where a parent is on notice that guardianship with a

third party has been recommended and will be determined at the hearing, if the

parent fails to raise this argument at the hearing, appellate review of the

constitutional issue is waived:

“[T]o apply the best interest of the child test in a

custody dispute between a parent and a non-parent, a trial

court must find that the natural parent is unfit or that . . .

her conduct is inconsistent with a parent’s constitutionally

protected status.” This finding should be made when the

court is considering whether to award guardianship to a

non-parent. To preserve the issue for appellate review, the

parent must raise it in the court below. However, for

waiver to occur the parent must have been afforded the

opportunity to object or raise the issue at the hearing.

Here, although counsel had ample notice that

guardianship . . . was being recommended, Respondent-

mother never argued to the court or otherwise raised the

issue that guardianship would be an inappropriate

disposition on a constitutional basis. We conclude

Respondent-mother waived appellate review of this issue.

In re C.P., 258 N.C. App. 241, 246, 812 S.E.2d 188, 192 (2018) (first alteration in

original) (citations omitted).

¶ 18 Here, Mother was on notice of the recommendations of both DSS and the GAL

of guardianship or custody to be granted to the juvenile’s aunt. The Court Report and

GAL’s reports prior to the last hearing recommended this plan. Mother did not

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appear for the hearing and did not present any evidence opposing the

recommendation of guardianship. Mother did not make any argument regarding her

constitutional rights and did not make any argument against guardianship on this or

any other basis. Instead, her counsel’s argument to the trial court addressed

primarily visitation, as he asked the trial court to maintain Mother’s visitation along

with drug testing. This argument is overruled.

D. Waiving Further Review Hearings

¶ 19 Mother argues, “[t]he trial court did not make adequate findings to support its

decision to waive further review hearings.” North Carolina General Statute § 7B-

906.1(n) requires the trial court to make the following findings before having review

hearings less often than every six months:

(1) The juvenile has resided in the placement for a period

of at least one year or the juvenile has resided in the

placement for at least six consecutive months and the court

enters a consent order pursuant to G.S. 7B-801(b1).

(2) The placement is stable and continuation of the

placement is in the juvenile’s best interests.

(3) Neither the juvenile’s best interests nor the rights of

any party require that review hearings be held every six

months.

(4) All parties are aware that the matter may be brought

before the court for review at any time by the filing of a

motion for review or on the court’s own motion.

(5) The court order has designated the relative or other

suitable person as the juvenile’s permanent custodian or

guardian of the person.

N.C. Gen. Stat. § 7B-906.1(n) (2019).

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This Court has held that the trial court must make written

findings of fact satisfying each of the above criteria in its

order. An order which fails to address all of the criteria

will be reversed and remanded for entry of an order

containing findings of fact in compliance with N.C. Gen.

Stat. § 7B-906(b).

In re M.M., 230 N.C. App. 225, 239, 750 S.E.2d 50, 59 (2013) (citation omitted). The

trial court’s disposition order, quoted above, is silent as to the third and fourth criteria

listed above. Accordingly, we reverse this portion of the order and remand for

additional findings regarding review hearings.

V. Conclusion

¶ 20 We affirm the adjudication order as to Scottie being a neglected juvenile. We

affirm the disposition order in part and reverse and remand in part. In particular,

we reverse the provisions of the disposition order waiving review hearings and

remand for entry of an order containing findings of fact in compliance with North

Carolina General Statute § 7B-906.1(n).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Judge HAMPSON concurs.

Judge TYSON concurs in part and dissents in part with separate opinion.

No. COA20-29 – In re S.R.J.T.

TYSON, Judge, concurring in part, dissenting in part.

¶ 21 I concur with the majority’s opinion holding that both the adjudication and

disposition orders are properly before this Court. I also concur with the majority’s

conclusion that the portion of finding of fact 15(d) about Scottie’s purported exposure

to sexual behavior “during the time that he was with his parents” is not supported by

clear and convincing evidence. The majority also correctly concludes the trial court’s

disposition order is silent, does not address the third and fourth statutory criteria,

and it must be reversed and remanded for additional findings regarding review

hearings.

¶ 22 The majority’s opinion sets forth the proper standard of review, but it applies

the incorrect “best interests” standard of appellate review to the adjudication order

instead of the disposition. Further, the trial court erroneously and unlawfully

delegated the availability and timing of a parent’s visitation with a child to a

therapist. Reunification of a child with parents cannot be ceased as a planned and

statutorily mandated goal prior to the trial court’s threshold findings and conclusions

of parental unfitness or conduct inconsistent with their parental rights. These errors

are prejudicial to warrant reversal. I respectfully dissent.

I. Adjudication

A. Standard of Review

¶ 23 The majority’s opinion properly states the proper appellate standard of review

for an appeal of an order of adjudication. This Court reviews a trial court’s

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adjudication of a child to be a neglected juvenile to determine whether the findings of

fact are supported by clear and convincing evidence, and whether the conclusions are

supported by the findings of fact. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d

362, 365 (2000) (citations omitted). “The trial court’s conclusions of law are

reviewable de novo on appeal.” In re K.J.D., 203 N.C. App. 653, 657, 692 S.E.2d 437,

441 (2010) (citation omitted).

¶ 24 “A trial court must determine by clear and convincing evidence that a parent’s

conduct is inconsistent with his or her protected status.” Weideman v. Shelton, 247

N.C. App. 875, 880, 787 S.E.2d 412, 417 (2016) (citations and internal quotation

marks omitted). The determination of parental unfitness or whether parental

conduct is inconsistent with the parents’ constitutionally protected status is reviewed

de novo. In re D.A., 258 N.C. App. 247, 249, 811 S.E.2d 729, 731 (2018).

¶ 25 The majority’s opinion recites the proper standard of review, reviews and

concludes the findings of fact are insufficient, but then applies the wrong standard of

review to the orders. Regarding testimony given by Brooke Gregory, the expert

witness and Scottie’s therapist, the majority’s opinion states: “To the extent that

Finding 15(e) is a finding of fact and not a recitation of testimony, we review the trial

court’s determination of whether visitation is in the best interest of the juvenile for

abuse of discretion.” This assertion is erroneous.

¶ 26 Findings of fact must be supported by clear and convincing evidence to support

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a statutory conclusion of parental abuse, neglect, or dependency before we review the

trial court’s “best interests” determination of disposition for an abuse of discretion.

The testimony of the therapist may be relevant, but clear and convincing evidence

must support findings and conclusions of unfitness or conduct inconsistent with

parental rights to deny a parent’s care, custody, and control with her child. See N.C.

Gen. Stat. § 8C-1, Rule 401 (2019); In re J.C.-B., __ N.C. App. __, 2021-NCCOA-65,

__ S.E.2d __ (2021); In re J.M., N.M., __ N.C. App. __, 2021-NCCOA-__, __ S.E.2d __

(2021); In re N.T., A.T. __ N.C. App. __, 2021-NCCOA-50, __ S.E.2d __, 2021 WL

795438 (2021) (unpublished). Since this finding is threshold and jurisdictional for

the State to inject itself into the constitutionally protected status and relationship

between a parent and child, the failure of the trial court to so find is not waived by

the parents’ failure to expressly assert it. Id.

B. Neglect and Dependency

¶ 27 A neglected juvenile is defined as a child “whose parent, guardian, custodian,

or caretaker does not provide proper care, supervision, or discipline; or who has been

abandoned; or who is not provided necessary medical care; or who is not provided

necessary remedial care; or who lives in an environment injurious to the juvenile's

welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2019). Notwithstanding the many errors

and deficiencies in the order, as is correctly pointed out in the majority’s opinion, the

majority concludes sufficient evidence shows Scottie is neglected. The majority’s

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opinion fails to address the unsupported finding and erroneous conclusion that

Scottie is also dependent.

¶ 28 A dependent juvenile is “in need of assistance or placement because (i) the

juvenile has no parent, guardian, or custodian responsible for the juvenile’s care or

supervision or (ii) the juvenile’s parent, guardian, or custodian is unable to provide

for the juvenile’s care or supervision and lacks an appropriate alternative childcare

arrangement.” N.C. Gen. Stat. § 7B-101(9) (2019). The trial court’s dependency

adjudication is also unsupported by findings of fact based upon clear and convincing

evidence and is properly reversed. Id.

2. Scottie’s Therapist

¶ 29 At the time of trial, Ms. Gregory, a therapist, had been meeting with Scottie

twice a month for 18 months. She testified Scottie suffered with PTSD from abuse,

based upon some of Scottie’s observed behaviors. The trial court considered her

testimony as an expert witness.

If scientific, technical or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion, or otherwise, if all

of the following apply: (1) The testimony is based upon

sufficient facts or data. (2) The testimony is the product of

reliable principles and methods. (3) The witness has

applied the principles and methods reliably to the facts of

the case.

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N.C. Gen. Stat. § 8C-1, Rule 702 (2019).

¶ 30 Ms. Gregory failed to explain either the correlation or to establish any

causation between purported acts of parental neglect or dependency of Scottie and

his PTSD diagnosis, nor provided any methods or psychoanalysis consistently

supplied to support that conclusion.

¶ 31 After a year of meeting with Scottie, Ms. Gregory asserted he should not visit

his parents because his nightmares purportedly increase when he interacts with

them. Scottie has also told his therapist that he has seen drug paraphernalia in his

home, and he likes to live with his aunt. Finally, the therapist testified about Scottie’s

sexualized behaviors because Scottie talked about sex and may have pulled down

either his or another child’s pants. Ms. Gregory admitted she does not know enough

about that conduct to form an opinion of its origin or cause. No allegations of sexual

exposure or abuse of Scottie by his parents are asserted or shown. We all agree part

of finding of fact 15(d), Scottie’s alleged exposure to sexual behavior “during the time

that he was with his parents,” is not supported by clear and convincing evidence and

is erroneous.

¶ 32 Insufficient evidence supports the trial court’s findings of fact. The findings

are insufficient to support its conclusions of law. A trial court cannot find, adjudicate,

and conclude a child is neglected or dependent without clear and convincing evidence

to support the findings and the consequent conclusions. See In re Gleisner, 141 N.C.

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App. at 480, 539 S.E.2d at 365. The orders are properly reversed.

3. DSS’ Evidence

¶ 33 Evidence and testimony offered by DSS during trial relied heavily upon

Mother’s alleged previous drug use. The last report DSS offered of purported drug

use was dated over five months prior to the adjudication hearing.

¶ 34 The trial court concludes:

3. With regard to neglect, each child would be placed at a

serious risk of impairment in the event that they were

placed with their parents due to the parents’ ongoing drug

abuse and their unstable living arrangements. Each of the

children would be placed at substantial risk of physical,

mental, and emotional impairment in the event that they

were returned to their parents.

¶ 35 Here, as we all agree, the trial court’s order merely repeated allegations and

testimony of the DSS social worker and Scottie’s therapist, without engaging in the

required judicial process of reconciling and adjudicating conflicts in the evidence.

“Effective appellate review of an order entered by a trial court sitting without a jury

is largely dependent upon the specificity by which the order’s rationale is articulated.”

Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980) (holding each step in

the logical sequence must be taken by the trial judge, “evidence must support

findings; findings must support conclusions; conclusions support the judgment”).

“Where there is a gap, it cannot be determined on appeal whether the trial court

correctly exercised its function to find the facts and apply the law[.]” Id.

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¶ 36 No clear and convincing evidence supported an adjudication of current neglect

or dependency outside of generalized assertions. Id. No evidence tends to show

Scottie has been injured or was at risk of injury in his home environment at the time

of the adjudication hearing.

II. Disposition

A. Ceasing Reunification

¶ 37 Our General Statutes mandate: “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)

. . . 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) (emphasis supplied). The court shall not cease

reunification efforts without supported findings of fact and conclusions of law which

state continued efforts would be unsuccessful or inconsistent with the children’s

health or safety. See In re P.T.W., 205 N.C. App. 589, 595, 794 S.E.2d 843, 848 (2016);

In re D.A., 258 N.C. App. at 253, 811 S.E.2d at 733-34.

¶ 38 Mother asserts the trial court erred and abused its discretion by ceasing

reunification efforts without making statutorily required findings of fact. The

majority’s opinion states that the court’s findings make it clear it considered the

evidence in light of whether reunification would be futile or inconsistent with the

juvenile’s health and safety. However, as the trial court points out, Scottie has not

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been in the custody of Mother since 2015. The court cites Mother’s alleged and past

history of substance abuse and the unsupported history of Scottie’s PTSD.

¶ 39 The trial court’s order fails to apply the mandatory standard, and its failure

infringes upon the constitutional rights of the parents to the care, custody and control

of their children. See In re R.P., 252 N.C. App. 301, 304, 798 S.E.2d 428, 430 (2017)

(holding a parent has a constitutional right to the care for their children absent a

showing of unfitness). The order does not show the court concluded reunification with

Mother would be futile or inconsistent with Scott’s health, safety, and need for a

permanent home within a reasonable period of time from the date of this adjudication

to comply with the statute. In re D.A., 258 N.C. App. at 253, 811 S.E.2d at 733-34.

¶ 40 The trial court failed to make the constitutionally and statutorily required

findings to cease visitation and reunification efforts. In re R.P., 252 N.C. App. at 304,

798 S.E.2d at 430. These conclusions are properly vacated.

B. Guardianship

¶ 41 Mother argues the trial court reversibly erred by failing to make necessary

findings of fact to support the order to grant custody to a third-party.

Parents have a constitutionally protected right to the

custody, care and control of their child, absent a showing of

unfitness to care for the child. A parent may lose the

constitutionally protected paramount right to child custody

if the parent’s conduct is inconsistent with this

presumption or if the parent fails to shoulder the

responsibilities that are attendant to rearing a child. Prior

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to granting guardianship of a child to a nonparent, a

district court must clearly address whether the respondent

is unfit as a parent or if his conduct has been inconsistent

with his constitutionally protected status as a parent. A

trial court’s determination that a parent’s conduct is

inconsistent with his or her constitutionally protected status

must be supported by clear and convincing evidence.

Id. at 304, 798 S.E.2d at 430 (emphasis supplied) (alterations, citations and internal

quotation marks omitted).

¶ 42 N.C. Gen. Stat. § 7B-600(a) provides “when the court finds it would be in the

best interests of the juvenile, the court may appoint a guardian of the person for the

juvenile.” N.C. Gen. Stat. § 7B-600(a) (2019).

¶ 43 Prior to moving to and engaging in any “best interests” analysis, a trial court

must have previously found “the natural parent is unfit or that his or her conduct is

inconsistent with a parent’s constitutionally protected status.” In re J.H., 244 N.C.

App. 255, 272, 780 S.E.2d 228, 241 (2015) (citations omitted); In re J.C.-B., ___ N.C.

App. at ___, 2021 NCCOA-65, ¶17, __ S.E.2d at __; In re N.T., A.T. 2021-NCCOA-50,

¶7, 2021 WL 795438, at *2.

¶ 44 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 D.A., 258 N.C. App. at 249, 811 S.E.2d at 731 (citation omitted).

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¶ 45 The majority’s opinion asserts Mother did not appear for the dispositional

hearing. This assertion is not consistent with the record. Mother was present in

court for the hearing on 21 August until 12:15 p.m. Mother had to report to work by

1:00 p.m. to maintain her employment, as is required under her plan, and this case

was not called until 4:00 p.m. Her attorney remained present and addressed the

court on her behalf.

¶ 46 The majority’s opinion also asserts Mother did not make any argument against

guardianship. Mother produced evidence that she had: (1) participated in a

substance abuse assessment; (2) received substance abuse treatment; (3) consistently

provided clean drug screens; (4) exercised visitation with her other child; (5) attained

and maintained employment; (6) paid child support for her other child; and, (7)

provided clothing and other items for her children.

¶ 47 Finally, the majority’s opinion asserts Mother did not make an argument

regarding her constitutional parental rights. Mother’s counsel argued her case had

already been sent back from this Court previously, referring to this Court’s reversal

of the earlier adjudication for lack of clear and convincing evidence to support findings

of neglect and dependency. See In re J.L.T., 254 N.C. App. 240, 801 S.E.2d 391, 2017

WL 2644127 at *6 (2017) (unpublished).

¶ 48 Mother’s counsel continued, “I would ask the [c]ourt not to change the plans

for [Scottie], leave it reunification (sic) without something more recent to start the

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visits.” Counsel referred to DSS having produced no new evidence in the more than

eight months since the adjudication hearing, implying this case lacked the required

evidence, as this Court concluded the earlier order had, and reunification should

remain the primary plan. An argument for or to continue reunification is an assertion

to uphold the Mother’s constitutional right to custody and care of her child. See In re

P.T.W., 205 N.C. App. at 595, 794 S.E.2d at 849; In re D.A., 258 N.C. App at 253, 811

S.E.2d at 733-34.

¶ 49 DSS reported her visits with her other child were going well. She inquired of

DSS how she could provide for Scottie’s needs. She has applied for and has been

placed on waiting lists for her own housing.

¶ 50 The 27 September 2019 dispositional order does not contain any findings of

fact or conclusions of law that Mother is unfit or that her conduct is inconsistent with

her constitutionally protected status as a parent. See id. Further, the findings

supporting Ms. Gregory’s recommendation were more than eight months old at the

time of the disposition hearing. No clear and convincing or timely evidence supports

such findings. Further, the trial court’s order contains no findings and ignores

Mother’s efforts and accomplishments to comply with her case plan. See Coble, 300

N.C. at 714, 268 S.E.2d at 190.

¶ 51 The majority’s opinion correctly recognizes the foundational parental rights to

the care, custody, and control of their children, but errs in affirming the trial court’s

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decision to cease reunification and award custody to a third-party without proof of

either unfitness or conduct inconsistent with being a parent. The trial court failed to

make the statutorily required findings to support its grant of guardianship. The

findings do not support such conclusion. The order is properly vacated and remanded.

See In re J.H., 244 N.C. App. at 272, 780 S.E.2d at 241.

III. Waiver of Further Review Hearings

¶ 52 The disposition order provides “No further review hearings shall be required

concerning [Scottie].” Mother correctly argues the trial court failed to make the

statutorily required findings to support waiver of future review hearing.

¶ 53 N.C. Gen. Stat. § 7B-906.1 mandates a trial court to make all five of the

following enumerated findings of fact supported by clear, cogent, and convincing

evidence before future review hearings may be waived.

(1) The juvenile has resided in the placement for a period

of at least one year or the juvenile has resided in the

placement for at least six consecutive months and the court

enters a consent order pursuant to G.S. 7B-801(b1).

(2) The placement is stable and continuation of the

placement is in the juvenile’s best interests.

(3) Neither the juvenile’s best interests nor the rights of

any party require that review hearings be held every six

months.

(4) All parties are aware that the matter may be brought

before the court for review at any time by the filing of a

motion for review or on the court’s own motion.

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(5) The court order has designated the relative or other

suitable person as the juvenile’s permanent custodian or

guardian of the person.

N.C. Gen. Stat. § 7B-906.1(n) (2019).

¶ 54 “The trial court must make written findings of fact satisfying each of the

enumerated criteria listed in N.C. Gen. Stat. § 7B-906.1(n) [and its] failure to do so

constitutes reversible error.” In re P.A., 241 N.C. App. 53, 66, 772 S.E.2d 240, 249

(2015) (citation omitted). This Court has previously held that strict compliance with

these statutory provisions is mandatory before a trial court may discontinue and

waive review hearings. In re K.L., 254 N.C. App. 269, 284, 802 S.E.2d 588, 598 (2017).

¶ 55 Mother argues the trial court only addressed: (1) Scottie’s placement is in the

care of his aunt for more than a year; and, (5) Scottie’s guardian is a relative. I concur

with the majority’s opinion that the trial court failed to address N.C. Gen. Stat. § 7B-

906.1(n) prongs (3) and (4). The trial court failed to make the required findings to

support waiver of further review hearings. The proper mandate in the absence of the

required findings is to vacate and remand. See id.

IV. Conclusion

¶ 56 I concur with the majority’s opinion that both issues of adjudication and

disposition are properly before this Court. I also concur with the majority’s conclusion

finding of fact 15(d) about Scottie’s purported exposure to sexual behavior “during the

time that he was with his parents” is not supported by clear and convincing evidence,

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and the trial court’s disposition order is silent on the third and fourth statutory

criteria and must be vacated and remanded for additional findings regarding review

hearings.

¶ 57 The trial court failed to make the threshold conclusion of unfitness or conduct

inconsistent with parental rights to cease reunification. Further, the trial court failed

to find clear and convincing evidence to support the findings and conclusions for

adjudication, prior to proceeding to any “best interests” analysis in disposition.

¶ 58 The trial court failed to comply with the statute’s mandatory findings of all

factors to grant guardianship to a third-party. The orders are properly vacated and

remanded. I respectfully concur in part and dissent in part.