In re T.H.

NO. COA13-433

NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

IN THE MATTER OF:

Rowan County

Nos. 03 JA 275-78, 06 JA 250-51

T.H., T.H., A.S.,

J.S., M.W., A.W.

Appeal by respondent from adjudication order entered 3 May

2012 by Judge Charlie Brown and disposition order entered 9 January

2013 by Judge Lillian B. Jordan in Rowan County District Court.

Heard in the Court of Appeals 8 October 2013.

Cynthia Dry for petitioner-appellee Rowan County Department

of Social Services.

Jeffrey L. Miller for respondent-appellant mother.

Administrative Office of the Courts, by Associate Counsel

Deana K. Fleming, for guardian ad litem.

BRYANT, Judge.

Where respondent-mother fails to establish an immediate and

direct interest in four juveniles — Tracy, Todd, Mary, and Ann1 —

following the surrender of her parental rights as to them in a

1 Pseudonyms are used throughout this opinion to protect the

juveniles’ privacy and for ease of reading.

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prior proceeding, we affirm the trial court’s ruling that

respondent-mother may not intervene in the juveniles’

dispositional hearing as a matter of right. Where respondent-

mother does not come within any category of persons afforded a

right to appeal a juvenile matter arising from Subchapter I of

Chapter 7B, as such appeal relates to the four juveniles adopted

from respondent-mother, respondent-mother lacks standing to

appeal. Accordingly, we must dismiss respondent-mother’s appeal

as to those four juveniles. Because there was sufficient evidence

to support the trial court’s findings of fact and those findings

support the trial court’s conclusion that Ashley and John were

dependent, we affirm that determination. Where respondent-mother

was on notice that the trial court would enter a permanent plan

for her two children, respondent-mother participated in the

dispositional hearing to establish a permanent plan, and did not

object to the lack of notice, the trial court did not err in

establishing a permanent plan. Where the trial court’s

unchallenged findings of fact support its conclusion that

reunification efforts would be inconsistent with the juvenile’s

health, safety, and need for a permanent home, we affirm the trial

court’s conclusion that reunification efforts are not required at

this time. Where the trial court failed to establish an

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appropriate schedule for respondent-mother to visit her children,

we remand the matter to the trial court for entry of such a

schedule.

Respondent-mother Claire Wilson (“Claire”)2, the biological

mother of the juveniles, appeals from orders: (1) adjudicating the

juveniles dependent; (2) denying her motion to intervene; (3)

ordering a permanent plan of adoption for Tracy, Todd, Mary, and

Ann; and (4) ordering a permanent plan of custody or guardianship

for Ashley and John. After careful review, we affirm in part,

remand in part, and dismiss in part Claire Wilson’s appeal.

On 27 January 2012, the Rowan County Department of Social

Services (“DSS”) filed a petition alleging that Tracy, Todd,

Ashley, John, Mary, and Ann were dependent juveniles. DSS stated

that on 27 January 2012, Janice Lake (“Janice”), the maternal

grandmother of the juveniles, was murdered. Janice had adopted

Tracy, Todd, Mary, and Ann in 2009 and in 2004 had been granted

custody of Ashley and John. In its petition, DSS alleged that

there were no appropriate family members to care for the children

and subsequently, took custody of the juveniles by non-secure

2Pseudonyms are used to protect the identity of respondent-mother,

her adult relatives and caretakers of the children.

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custody order. On 2 February 2012, the trial court appointed the

juveniles a guardian ad litem.

An adjudicatory hearing was held on 29 March 2012. The trial

court adjudicated the children “dependent juveniles” and ordered

that legal custody, as well as authority over placement and

visitation, remain with DSS. Additionally, the trial court stated

the following:

It is in the best interests of the juveniles

for the temporary permanent plan of [John and

Ashley] to be custody or guardianship with a

relative or other court approved caretaker.

The temporary permanent plan for [Ann, Mary,

Todd, and Tracy] should be adoption.

On 2 October 2012, several of the juveniles’ relatives filed

a joint motion to intervene in the juvenile proceedings. The

relatives stated that they were willing and able to provide care

for the juveniles and that it was in the best interests of the

juveniles to be placed with family members. On 8 October 2012,

Mr. and Mrs. Alfred, who were the court approved placement

providers for all of the juveniles, also filed a motion to

intervene. Mr. and Mrs. Alfred argued that they should be

“permitted to intervene because it would be in the best interests

of all the children to have [Mr. and Mrs. Alfred] involved as

parties in their case, since [Mr. and Mrs. Alfred] [] have

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developed such strong bonds with the children and are providing

their daily care.”

On 10 October 2012, Claire filed a motion to intervene. The

motion related solely to Tracy, Todd, Mary, and Ann, the four

juveniles adopted by Janice. Claire noted that she was the

biological mother of the juveniles and legally their sister since

the children had been adopted by Claire’s mother. Claire denied

the material allegations made by Mr. and Mrs. Alfred in their

motion to intervene and requested that the juvenile petition be

terminated, the juveniles placed with her, or in the alternative,

members of her family, and that Mr. and Mrs. Alfred’s motion to

intervene be denied.

A dispositional hearing was conducted on 8, 9, and 26 November

2012. The trial court denied all motions to intervene. The court

found that no relative was able to provide proper care and

supervision for the juveniles and that placement with “any of the

identified relatives” was contrary to the best interests of the

juveniles. The trial court specifically found that it was contrary

to the best interests of the juveniles for them to return to

Clarie’s home. The trial court made findings regarding Todd’s

repeated attempts to harm himself and others, as well as his

auditory and visual hallucinations, and placed him in a residential

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psychiatric facility, with placement with Mr. and Mrs. Alfred if

possible once his treatment was complete. The remaining juveniles

were placed with Mr. and Mrs. Alfred. The court set the permanent

plan for Tracy, Todd, Mary and Ann as adoption and the permanent

plan for Ashley and John as custody or guardianship with Mr. and

Mrs. Alfred. Claire appeals.

_________________________________

On appeal, Claire raises the following issues: whether (I)

the trial court erred in denying her motion to intervene; (II)

there was sufficient grounds to support the conclusion the children

were dependent juveniles; (III) there were sufficient grounds to

cease reunification efforts; (IV) the trial court erred in

establishing a permanent plan for the juveniles; and (V) the

written order failed to establish a proper visitation plan.

I. Motion to Intervene

Claire first argues that the trial court erred by denying her

motion to intervene as a matter of right, pursuant to our Rules of

Civil Procedure, Rule 24(a)(2). We disagree.

“This Court reviews a trial court's decision granting or

denying a motion to intervene pursuant to N.C. Gen. Stat. § 1A–1,

Rule 24(a)(2), on a de novo basis.” Bailey & Assoc., Inc. v.

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Wilmington Bd. of Adjustment, 202 N.C. App. 177, 185, 689 S.E.2d

576, 583 (2010) (citation omitted).

As to whether our Juvenile Code, codified in Chapter 7B of

our North Carolina General Statutes, and specifically, Subchapter

I, “Abuse, Neglect, Dependency,” address intervention, the briefs

submitted to us reference only section 7B-1103, which allows a

person or agency to “intervene in a pending abuse, neglect, or

dependency proceeding for the purpose of filing a motion to

terminate parental rights.” N.C. Gen. Stat. ' 7B-1103(b) (2011)

(emphasis added).3 We find no other statute within this subchapter

specifically referencing intervention. Therefore, we look to our

Rules of Civil Procedure for authority governing intervention.

The General Assembly has set out the

judicial procedure to be used in juvenile

proceedings in Chapter 7B of the General

Statutes. This Court has previously held that

[t]he Rules of Civil Procedure, while they are

not to be ignored, are not superimposed upon

these hearings. Instead, the Rules of Civil

Procedure apply only when they do not conflict

3 We note that effective 1 October 2013, within Subchapter I,

“Abuse, Neglect, Dependency,” section 7B-401.1 states that

“[e]xcept as provided in G.S. 7B-1103(b), the court shall not allow

intervention by a person who is not the juvenile's parent,

guardian, custodian, or caretaker but may allow intervention by

another county department of social services that has an interest

in the proceeding. This section shall not prohibit the court from

consolidating a juvenile proceeding with a civil action or claim

for custody pursuant to G.S. 7B-200.” N.C. Gen. Stat. § 7B-401.1

(effective 1 October 2013).

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with the Juvenile Code and only to the extent

that the Rules advance the purposes of the

legislature as expressed in the Juvenile Code.

In re L.O.K., 174 N.C. App. 426, 431—32, 621 S.E.2d 236, 240 (2005)

(citations and internal quotation omitted).

Rule 24 of our Rules of Civil Procedure governs intervention,

both intervention of right and permissive intervention. See N.C.

Gen. Stat. ' 1A-1, Rule 24 (2011). Rule 24(a)(2), “Intervention

of right,” states, in pertinent part, that

[u]pon timely application anyone shall be

permitted to intervene in an action . . . .

When the applicant claims an interest relating

to the property or transaction which is the

subject of the action and he is so situated

that the disposition of the action may as a

practical matter impair or impede his ability

to protect that interest, unless the

applicant's interest is adequately

represented by existing parties.

N.C.G.S. ' 1A-1, Rule 24(a)(2).

Permissive intervention pursuant to Rule 24(b)(2), states, in

part, that

anyone may be permitted to intervene in an

action.

When an applicant's claim or defense and the

main action have a question of law or fact in

common. When a party to an action relies for

ground of claim or defense upon any statute or

executive order administered by a federal or

State governmental officer or agency or upon

any regulation, order, requirement, or

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agreement issued or made pursuant to the

statute or executive order, such officer or

agency upon timely application may be

permitted to intervene in the action.

N.C.G.S. ' 1A-1, Rule 24(b)(2).

Statute 7B-100, entitled “Purpose,” of our Juvenile Code,

Subchapter I, states that Subchapter I “shall be interpreted and

construed so as to implement the following purposes and policies

. . . [t]o develop a disposition in each juvenile case that

reflects consideration of the facts, the needs and limitations of

the juvenile, and the strengths and weaknesses of the family.”

N.C. Gen. Stat. § 7B-100(2) (2011). We construe this provision to

permit intervention pursuant to Rule 24. See generally, In re

Baby Boy Scearce, 81 N.C. App. 531, 541, 345 S.E.2d 404, 410 (1986)

(where this Court, when considering permissive intervention under

Chapter 7A, the predecessor to Chapter 7B, sanctioned the use of

permissive intervention where it determined that intervention “was

necessary to elicit full and accurate information pertaining to

the welfare of the child.” (citation omitted)).

In its 9 January 2011 disposition order, the trial court

acknowledges that prior to receiving evidence as to the

dispositional hearing, it considered motions to intervene,

including the motion filed by Claire. The trial court concluded

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that “[n]o person seeking to intervene may be allowed to intervene

as of right.”

This Court has stated that where no other

statute confers an unconditional right to

intervene, the interest of a third party

seeking to intervene as a matter of right

under N.C.G.S. § 1A–1, Rule 24(a)

must be of such direct and immediate

character that he will either gain or

lose by the direct operation and effect

of the judgment.... [sic] One whose

interest in the matter in litigation is

not a direct or substantial interest, but

is an indirect, inconsequential, or a

contingent one cannot claim the right to

defend.

Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 459,

515 S.E.2d 675, 682—83 (1999) (citations and quotations omitted).

In her brief to this Court, Claire contends that

[t]o the extent [I] [am] considered only as a

legal ‘sister’ of [the] four children, [I] was

entitled to intervene as a party in the

proceedings as a matter of right so that [I]

could adequately present and represent the

otherwise unrepresented family member

interest and arguments for maintaining a

family placement, family relationship, and

potential for a family reunification with the

four juveniles . . . and so as to assure [I]

may have a proper legal voice in this appeal

and any subsequent juvenile court proceedings.

[I] [have] a direct interest in the family

relationships with each of the juveniles which

can be protected and represented adequately

only if [I] (or some family member) is allowed

to participate as a full party to the juvenile

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proceedings. The adoption of the juveniles by

strangers to the family would forever sever

the family ties and legal relationships of

[me] and [my] relatives with the children.

Initially, we note Claire’s acknowledgment that as to four of

the children subject to this action, she has no parental rights.

In an unchallenged finding of fact, the trial court stated that

Janice adopted Tracy, Todd, Mary, and Ann in 2009. See Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no

exception is taken to a finding of fact by the trial court, the

finding is presumed to be supported by competent evidence and is

binding on appeal.”) (citations omitted). Pursuant to N.C. Gen.

Stat. § 48-1-106,

[a] decree of adoption severs the relationship

of parent and child between the individual

adopted and that individual’s biological or

previous adoptive parents. After the entry of

a decree of adoption, the former parents are

relieved of all legal duties and obligations

due from them to the adoptee, . . . and the

former parents are divested of all rights with

respect to the adoptee.

N.C. Gen. Stat. § 48-1-106(c) (2011). Thus, Claire’s parental

rights to Tracy, Todd, Mary, and Ann — the four juveniles adopted

by Janice — have been severed. Claire has also been divested of

all rights and relieved of all legal duties and obligations with

respect to these four juveniles. See id.

Furthermore, Claire’s motion to intervene fails to provide

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any indication that she has the authority to defend or assert “the

otherwise unrepresented family member interest [or can present] .

. . arguments for maintaining a family placement, family

relationship, and potential for a family reunification with the

four juveniles[.]” See Virmani, 350 N.C. at 459, 515 S.E.2d at

683 (holding that a party cannot directly intervene where its

interest is at best indirect). We find that Claire’s motion to

intervene failed to assert a claim or defense that can act as a

basis for intervening in this action. Pursuant to our Rules of

Civil Procedure, Rule 24, “[a] person desiring to intervene shall

serve a motion to intervene upon all parties affected thereby.

The motion shall state the grounds therefor and shall be

accompanied by a pleading setting forth the claim or defense for

which intervention is sought.” N.C. Gen. Stat. ' 1A-1, Rule 24(c)

(2011).

Given that Claire’s parental rights to the four adopted

juveniles have been severed, her motion to intervene in the

juvenile’s dispositional hearing failed to present any direct or

immediate interest such that she was entitled to intervene in the

juvenile’s dispositional hearing as a matter of right. See

N.C.G.S. ' 1A-1, Rule 24(a)(2); Virmani, 350 N.C. at 459, 515

S.E.2d at 682-83. Moreover, Claire’s motion was defective for

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failure to include a pleading asserting a claim or defense as

required by Rule 24(c). See Kahan v. Longiotti, 45 N.C. App. 367,

371, 263 S.E.2d 345, 348 (1980) (“[A] motion to intervene . . .

must be accompanied by a proposed pleading.”), overruled on other

grounds by Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

Accordingly, we affirm the trial court’s denial of Claire’s motion

to intervene as a matter of right.

We also note that in addition to its conclusion denying

intervention as a matter of right, the trial court denied Claire’s

motion to intervene on the basis of permissive intervention. In

considering the use of permissive intervention as authorized under

the juvenile code as codified in Chapter 7A, the predecessor to

the juvenile code as codified in Chapter 7B, this Court has

sanctioned its use where it “was necessary to elicit full and

accurate information pertaining to the welfare of the child.” In

re Baby Boy Scearce, 81 N.C. App. at 541, 345 S.E.2d at 410

(citation omitted).

In Baby Boy Scearce, the foster parents sought to intervene

in an action in which a biological father sought physical and legal

custody of a child. The trial court concluded that the foster

parents’ right to intervene “derives from the child’s right to

have his or her best interests protected.” Id. Other factors

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considered by this Court included that intervention “was necessary

to elicit full and accurate information pertaining to the welfare

of the child,” id. at 541, 345 S.E.2d at 410 (citation omitted),

and that “intervention by the foster parents would not ‘prejudice

the adjudication of the rights of the original parties.’” Id.

Nevertheless, while Claire did not challenge on appeal the

trial court’s ruling that permissive intervention should be denied

as a matter of law, we do not believe the trial court abused its

discretion in denying Claire’s motion to intervene on the basis of

permissive intervention.

While the trial court’s order denied Claire’s motion to

intervene and participate as a party to the dispositional

proceedings, we acknowledge the trial court’s findings regarding

the participation of the juvenile’s family members in determining

their individual best interests: “from the representations of

counsel and the presence of all interested relatives in the

courtroom, the court is comfortable that sufficient evidence

regarding all possible relative placements will be offered for the

court’s consideration in determining the best interests of each of

the children”; and “[t]he proposed intervenors’ interests will not

be adversely affected by denying their motions to intervene since

they may participate indirectly in the proceedings through their

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status as witnesses in the disposition and suggested relative

placements.”

Standing

We next consider a motion to dismiss Claire’s appeal as to

the four juveniles to whom Claire has surrendered her parental

rights. Before the Court, the guardian ad litem (“GAL”) asserts

that Claire lacks standing to bring forward her appeal in relation

to Tracy, Todd, Mary and Ann. We agree, and grant the GAL’s motion

to dismiss Claire’s appeal as to Tracy, Todd, Mary and Ann.

A juvenile matter based on Subchapter I, “Abuse, Neglect,

Dependency” of General Statutes Chapter 7B may be appealed by the

following parties:

(1) A juvenile acting through the juvenile’s

guardian ad litem previously appointed under

G.S. 7B-601.

(2) A juvenile for whom no guardian ad litem

has been appointed under G.S. 7B-601. If such

an appeal is made, the court shall appoint a

guardian ad litem pursuant to G.S. 1A-1, Rule

17 for the juvenile for the purposes of that

appeal.

(3) A county department of social services.

(4) A parent, a guardian appointed under G.S.

7B-600 or Chapter 35A of the General Statutes,

or a custodian as defined in G.S. 7B-101 who

is a nonprevailing party.

(5) Any party that sought but failed to obtain

termination of parental rights.

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N.C. Gen. Stat. § 7B-1002 (2011); see N.C. Gen. Stat. ' 7B-1001

(2011) (Right to appeal); see also In re A.P., 165 N.C. App. 841,

600 S.E.2d 9 (2004) (holding that a step-grandfather had no

standing to appeal even though his name was listed on the petition

seeking to adjudicate the child neglected where the step-

grandfather was not a caregiver, custodian, or parent of the

child).

The trial court’s finding of fact that Janice adopted four of

Claire’s biological children — Tracy, Todd, Mary and Ann — in 2009

is uncontested. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731

(“Where no exception is taken to a finding of fact by the trial

court, the finding is presumed to be supported by competent

evidence and is binding on appeal.”) (citations omitted). As a

consequence, Claire’s parental rights to those four juveniles have

been severed. See N.C.G.S. § 48-1-106 (“[a] decree of adoption

severs the relationship of parent and child between the individual

adopted and that individual’s biological or previous adoptive

parents.”). Claire was not appointed by the court as a guardian

for the four adopted juveniles following Janice’s death and no

findings of fact support a conclusion that Claire acted as a

custodian for the juveniles. See N.C. Gen. Stat. § 7B-101(8)

(2011) (A “Custodian” is defined as “[t]he person or agency that

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has been awarded legal custody of a juvenile by a court or a

person, other than parents or legal guardian, who has assumed the

status and obligation of a parent without being awarded the legal

custody of a juvenile by a court.); see also In re T.B., 200 N.C.

App. 739, 685 S.E.2d 529 (2009) (holding that the respondent was

not a custodian to the child where the record reflected no order

awarding either legal or physical custody of the juvenile to the

respondent and no evidence supported a finding that the respondent

stood in loco parentis in relation to the child).

Because Claire does not come within any category of persons

afforded a statutory right to appeal from a juvenile matter

pursuant to N.C.G.S. '' 7B-1001 and 7B-1002, Claire lacks standing

to appeal the trial court’s 3 May 2012 adjudication order and 9

January 2013 juvenile disposition order as those orders pertain to

Tracy, Todd, Mary, and Ann — the four children Claire surrendered

to adoption. See N.C.G.S. § 7B-1002. As a result, we address

Claire’s arguments arising from her appeal of the 3 May 2012

adjudication order and 9 January 2013 juvenile disposition order

only as those orders relate to Ashley and John.

II. Adjudication of Dependency

Claire argues that the trial court erred by adjudicating

Ashley and John dependent juveniles within the meaning of N.C.

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Gen. Stat. § 7B-101. Claire contends that there was insufficient

evidence presented at the adjudicatory hearing to meet the clear

and convincing standard necessary to conclude the juveniles were

dependent. We disagree.

In all actions tried upon the facts

without a jury ... [sic] the court shall find

the facts specifically and state separately

its conclusions of law thereon[.] . . . The

resulting findings of fact must be

sufficiently specific to enable an appellate

court to review the decision and test the

correctness of the judgment.

In re J.S., 165 N.C. App. 509, 510—11, 598 S.E.2d 658, 660 (2004)

(citations and quotations omitted). “The role of this Court in

reviewing a trial court’s adjudication of [dependency] is to

determine (1) whether the findings of fact are supported by clear

and convincing evidence, and (2) whether the legal conclusions are

supported by the findings of fact[.]” In re T.H.T., 185 N.C. App.

337, 343, 648 S.E.2d 519, 523 (2007) (citation and quotation

omitted). “If such evidence exists, the findings of the trial

court are binding on appeal, even if the evidence would support a

finding to the contrary.” Id. (citation omitted).

“Dependent juvenile” is defined in N.C. Gen. Stat. § 7B-

101(9) as:

[a] juvenile in need of assistance or

placement because the juvenile has no parent,

guardian, or custodian responsible for the

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juvenile’s care or supervision or whose

parent, guardian, or custodian is unable to

provide for the care or supervision and lacks

an appropriate alternative child care

arrangement.

N.C. Gen. Stat. § 7B-101(9) (2011). “In determining whether a

juvenile is dependent, the trial court must address both (1) the

parent’s ability to provide care or supervision, and (2) the

availability to the parent of alternative child care

arrangements.” In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644,

648 (2007) (citation and quotation omitted). “Findings of fact

addressing both prongs must be made before a juvenile may be

adjudicated as dependent, and the court’s failure to make these

findings will result in reversal of the court.” Id. (citation

omitted).

In the instant case, it is not disputed that the legal

custodian of the juveniles, Janice, is deceased. The trial court

further found that “[a]t the time that the juvenile petition was

filed, there were no appropriate family members immediately

available to care for the children long-term.” This finding is

supported by the uncontradicted testimony of Kris Tucker, a DSS

social worker, who testified at the adjudicatory hearing that there

were no appropriate family members to care for the juveniles.

Tucker further testified that although the juveniles were in the

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care of an aunt and uncle, Mr. and Mrs. Chase, “they are not able

to provide ongoing care and are not interested in establishing

permanence for [the juveniles].” Claire did not present herself

as a potential caregiver at the adjudicatory hearing, nor were any

alternative caregivers presented. Accordingly, we conclude that

the trial court did not err by adjudicating Ashley and John as

dependent juveniles.

III. Permanent Plan

Claire next argues that the trial court erred when, in the

adjudicatory order, it made findings of fact and conclusions of

law regarding a “temporary permanent plan” for the juveniles.

However, we conclude that any alleged error was rendered harmless

by the trial court’s entry of a permanent plan in its dispositional

order. See In re J.P., ___ N.C. App. ___, ___ S.E.2d ___ (19

November 2013) (COA13-35-2).

Claire additionally argues that the trial court erred by

entering a permanent plan for the juveniles at disposition when

she did not have the statutorily required notice that the trial

court would consider a permanent plan. We disagree.

Claire was provided notice that the trial court intended to

consider a permanent plan for the juveniles at disposition when it

made a “temporary permanent plan” at adjudication. See id. Thus,

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as in In re J.P., Claire and her attorney attended and participated

in the trial court’s dispositional hearing and did not object to

the lack of formal notice. Id. at ___, ___ S.E.2d at ___ (citing

In re J.S., 165 N.C. App. 509, 514, 598 S.E.2d 658, 662 (2004)

(where this Court stated that a party waives its right to notice

under section 7B–907(a) by attending the hearing in which the

permanent plan is created, participating in the hearing, and

failing to object to the lack of notice). Accordingly, we conclude

that Claire waived any objection to lack of formal notice of a

hearing on a permanent plan when she made a pre-trial motion to

intervene in the dispositional hearing, made arguments before the

trial court, was allowed to present witnesses regarding the best

interest of the child, and failed to object to the lack of formal

notice.

IV. Dispositional Conclusions

Claire next challenges several of the trial court’s

conclusions of law. Claire does not challenge any of the trial

court’s findings of fact and, accordingly, they are binding on

appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Our

review is therefore limited to whether the trial court’s findings

of fact support its conclusions of law and disposition. In re

Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004).

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Claire first challenges the trial court’s conclusions of law

2 and 7.

2. No relative of the juveniles is able to

provide proper care and supervision of all the

juveniles in a safe home. Placement with any

of the identified relatives is contrary to the

best interests of the juveniles.

. . . .

7. The [DSS] has made reasonable and diligent

efforts to secure relative placements for the

children. The three relatives identified were

not completely able to provide for the

children.

Pursuant to N.C. Gen. Stat. § 7B-903(a)(2)(c), when placing

a juvenile outside of the home,

[i]n placing a juvenile in out-of-home care

under this section, the court shall first

consider whether a relative of the juvenile is

willing and able to provide proper care and

supervision of the juvenile in a safe home. If

the court finds that the relative is willing

and able to provide proper care and

supervision in a safe home, then the court

shall order placement of the juvenile with the

relative unless the court finds that the

placement is contrary to the best interests of

the juvenile.

N.C. Gen. Stat. § 7B-903(a)(2)(c) (2011). This Court has

recognized that our statutes give a preference, where appropriate,

to relative placements over non-relative, out-of-home placements.

In re L.L., 172 N.C. App. 689, 701, 616 S.E.2d 392, 399 (2005).

However, before determining whether relative or non-relative

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placement is in the best interest of the juvenile, the statute

first requires the trial court to determine whether the relative

in question is willing and able to provide proper care and

supervision in a safe home. N.C. Gen. Stat. § 7B-903(a)(2)(c).

We review a dispositional order only for abuse of discretion. In

re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002).

Here, the trial court found as fact:

8. On March 29, 2012, [Ann, Mary and John]

were moved from the home of [Mr. and Mrs.

Chase] at the request of the placement. [Mr.

and Mrs. Chase] indicated to [DSS] that they

thought the placement would be a temporary one

and that they could not provide for the

children long term. At the time placement was

needed . . . the only identified and approved

placement was with . . . the younger

children’s school principal, and her fiancé

[Mr. Alfred]. Placement with [Kimberly Chase,

an aunt] was not approved at the time because

a fire in her home in late February 2012 had

left her without a home, because she had

several identified medical issues and

medications, and because she had fallen asleep

on two occasions while talking with Social

Worker Hardison about the children. The [DSS]

was concerned that [Kimberly Chase] could not

provide the supervision needed for the

children. [Claire Wilson] was unable to be

approved for placement of the children because

she was under investigation by the [DSS]

regarding the two children in her home

following positive drug screens for cocaine on

February 16, 2012 and March 8, 2012.

9. On May 3, 2012, [Tracy, Todd and Ashley]

were moved from [Lisa Chase’s, an aunt] home

because of concerns identified by the [DSS].

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These concerns included a lack of sufficient

space in the home for the children, the fact

that [Lisa Chase] was out of compliance with

Rowan Housing Authority regulations by having

the children in the home, issues with

supervision, excessive tardiness and absences

in school, reports from the school . . . that

the children would come to school hungry,

[Lisa Chase’s] tendency to minimize the school

behavioral problems of the children, and [Lisa

Chase’s] transporting of the children in her

car without having them properly restrained in

safety seats. Social Worker Hardison

witnessed the children in the car not properly

restrained on three occasions. [Tracy, Todd,

and Ashley] were placed with their siblings in

the home of [Mr. and Mrs. Alfred]. The

children were happy and excited to be placed

together in one home again.

. . . .

23. On May 17, 2012, the [DSS] received a

request from [Claire Wilson’s attorney] to

consider certain relatives and family friends

for placement of the juveniles. Since the

juveniles were all placed together by this

time, keeping them together was an important

goal of [DSS] in its decision-making. The

[DSS] made diligent efforts to study and

become familiar with each option presented to

it for placement of the children.

. . . .

27. [Lisa Chase] continued to be ruled out as

a placement option because of the concerns

that led to the removal of the three youngest

children from her home on May 3, 2012. . . .

[Terra Roberts (Godmother to the juveniles)]

was ruled out as a placement because of her

inability to provide proper [care and]

supervision of the children and because of

inadequate space for the children in her home.

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28. [Mr. and Mrs. Miles], who live in Guilford

County, submitted to a pre-placement

assessment by Guilford Count DSS. The

assessment was positive, and [they were]

willing to have all six children placed with

them. The children were not moved to [their]

home for several reasons. One, several of the

children indicated that they did not know

[them] and did not want to move to Greensboro.

Two, . . . [a]lthough a past investigation of

neglect was not substantiated, it was of some

concern to the [DSS] that [Mrs. Miles] told

Social Worker Williams on September 5, 2012

that she had no past history with any DSS.

Three, the [DSS] has been unable to ascertain

after speaking with [Mr. and Mrs. Miles] and

other family members exactly how [Mr. Miles]

is related to the children. [Mr. Miles] could

only indicate that he was somehow related on

“his father’s side.” A few other kinship

options . . . were individually ruled out as

placement options for failing to return the

kinship assessment packets mailed to them by

the [DSS] or because they were 19 and 20 years

old, too young to take on the responsibility

of raising six children.

29. The most positive relative placement

option for the children [was Jenetta Thomas].

[Jenetta Thomas is] the children’s second

cousin. . . . [Jenetta Thomas] stated that

she is willing to provide a home for all of

the children, but at the time Social Worker

Williams visited her she could accommodate

only two or three additional children in her

home. . . . [Ashley, Mary, and John] were asked

about possible placement with [Jenetta

Thomas], and they indicated that they do not

know [her] well and do not want to live with

her in a different county “out in the

country.”

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30. [Betsy Monroe, Jenetta Thomas’ sister].

. . was found by [DSS to be] willing and able

to take two or three of the children based on

space limitations. . . . The children only

have an acquaintance relationship with [Betsy

Miller] at this time.

It is apparent from the trial court’s exhaustive findings of

fact that the trial court considered several relative placements

but no suitable option was available; where potentially available,

the court considered it not in the juveniles’ best interests to

place the juveniles with the relative. Thus, we conclude the trial

court did not abuse its discretion by placing the juveniles in a

non-relative placement. Accordingly, we hold that the trial court

did not err in making conclusions of law 2 and 7.

Claire next challenges conclusions of law 5 and 6:

5. Efforts to eliminate the need for

placement of the juveniles would be

inconsistent with the juveniles’ health,

safety, and need for a safe permanent home

within a reasonable period of time.

6. Reunification efforts are not required in

this matter . . . [as to John and Ashley

because] significant safety issues make

reunification with a parent within a

reasonable time unlikely. [Claire], their

mother, has not asked to have the children

live with her.

Pursuant to N.C. Gen. Stat. § 7B-507,

[i]n any order placing a juvenile in the

custody or placement responsibility of a

county department of social services, whether

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an order for continued nonsecure custody, a

dispositional order, or a review order, the

court may direct that reasonable efforts to

eliminate the need for placement of the

juvenile shall not be required or shall cease

if the court makes written findings of fact

that:

(1) Such efforts clearly 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[.]

N.C. Gen. Stat. § 7B-507(b) (2011).

Here, the trial court found as fact:

17. All of the children have been diagnosed

with PTSD and anxiety disorder. . . [Ashley]

has low cognitive functioning and a language

disorder. All of the children . . . receive

weekly counseling services for trauma-based

disorders.

18. Therapist Jill [Hill] specializes in

working with children who have experienced

trauma. She has been seeing [Ann, John,

Ashley, and Tracy] weekly since early

September 2012. Ms. [Hill] has been working

with the children on trust-building and

establishing a rapport with them. Ms. [Hill]

feels that all the children need ongoing

counseling based on the traumatic death of

[Janice Lake] and the past history of multiple

placements, chaos, separation from siblings,

and instability. Ms. [Hill]’s focus with the

children is on stability and helping them to

feel safe. [Ann, John, Ashley, and Tracy]

have expressed to Ms. [Hill] that they like

where they are living, they feel safe there,

they want to stay together, and they want to

stay with [Mr. and Mrs. Alfred]. The children

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speak of each other often during therapy with

Ms. [Hill] and appear to have a strong

connection with each other. Ms. [Hill] is

concerned that moving the children at this

point would be very disruptive to their

pathway of feeling safe. The children’s

issues cannot be fixed quickly, and their

nervous systems are very fragile.

. . . .

24. [Claire Wilson] continued to be ruled out

as a placement because of her positive drug

screens and her failure to follow up with drug

and mental health treatment.

25. Also relevant to the inquiry of whether

or not [Claire Wilson] may be an appropriate

long-term placement for the children is the

prior neglect and DSS history of the children.

[Claire Wilson] has a total of ten children,

with only two of those children in her care.

Her oldest two children [] were in foster care

due to neglect on two separate occasions and

eventually were adopted by their maternal

great-grandmother . . . in 2009. Custody of

[John and Ashley] was granted to [Janice

Lake], their maternal grandmother, in 2004[;]

[Mary and Ann] were in foster care from 2003

until 2005 and from 2006 until 2009 pursuant

to petitions filed and adjudicated for neglect

by [Claire Wilson]. [Todd and Tracy] were in

the legal custody of the [DSS] due to neglect

by [Claire Wilson] from 2006 to 2009. [Mary,

Ann, Todd, and Tracy] were adopted by their

maternal grandmother, [Janice Lake], in 2009.

[Claire Wilson] is not requesting that the

court consider placing the six children with

her. She is in treatment with Daymark

Recovery Services[.]

We conclude the uncontested findings of fact support the trial

court’s conclusions that reunification efforts would be

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inconsistent with the juveniles’ health, safety and need for a

permanent home within a reasonable period of time and were not

required. Accordingly, we hold that the trial court did not err

in making conclusions of law 5 and 6.

VI. Visitation

Claire next argues that the trial court erred regarding its

visitation plan for Ashley and John because it failed to specify

the time, place, and conditions under which visitation may be

exercised. In re E.C., 174 N.C. App. 517, 521—23, 621 S.E.2d 647,

651—52 (2005) (holding that a trial court must include “an

appropriate visitation plan in its dispositional order”). We

agree.

North Carolina General Statutes, section 7B-905(c) provides

that any dispositional order which leaves the minor child in a

placement “outside the home shall provide for appropriate

visitation as may be in the best interests of the juvenile and

consistent with the juvenile’s health and safety.” N.C. Gen. Stat.

§ 7B-905(c) (2011). This Court has stated that:

[i]n the absence of findings that the parent

has forfeited their 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 by a provision

in the order defining and establishing the

time, place[,] and conditions under which such

visitation rights may be exercised.”

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In re E.C., 174 N.C. App. 517, 522-23, 621 S.E.2d 647, 652 (2005)

(citation omitted).

Here, the trial court made no finding that Claire had

forfeited her right to visitation or that it was in the best

interests of Ashley or John to deny visitation. Therefore, the

trial court was required to provide a plan containing a minimum

outline of visitation, such as the time, place, and conditions

under which visitation may be exercised. Id. The court provided

the following order governing visitation: “The juveniles shall

visit regularly with their siblings who live with [Ms. Wilson] and

[Ms. Chase], [Kimberly Chase], and [Claire Wilson]. These visits

shall begin as soon as possible and shall be supervised by a

caregiver selected by the [DSS], including some visits at [Ms.

Chase]’s home if possible.” The order does not contain the

“minimum outline” required by In re E.C. As such, the plan

constitutes an impermissible delegation of the court’s authority

under N.C.G.S. § 7B-905. See In re Stancil, 10 N.C. App. 545,

552, 179 S.E.2d 844, 849 (1971) (discussing how the award of

visitation rights, which is a judicial function, cannot be

delegated to a child’s custodian). Therefore, we remand for entry

of an order of visitation which clearly defines and establishes

“the time, place[,] and conditions” under which Claire may exercise

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her visitation rights. In re E.C., 174 N.C. App. at 522—23, 621

S.E.2d at 652.

Affirmed in part, remanded in part, and appeal dismissed in

part.

Judges McGEE and STROUD concur.