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In re K.L.

Court of Appeals of North Carolina

July 5, 2017

IN THE MATTER OF: K.L. and R.E.

          Heard in the Court of Appeals 5 June 2017.

         Appeal by respondent from order entered 12 May 2016 by Judge Toni S. King in Cumberland County District Court. No. 14 JA 12-13

          Christopher L. Carr for petitioner Cumberland County Department of Social Services and Beth A. Hall for guardian ad litem (joint brief).

          Appellate Defender's Office, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellant.

          TYSON, Judge.

         Respondent-mother appeals from an order entered, which removed reunification as a concurrent permanent plan for her children, K.L. and R.E. We reverse and remand.

         I. Background

         This case returns to the Court for a second time. In re K.L., __ N.C.App. __, 778 S.E.2d 104, 2015 WL 4898180 (unpublished). Cumberland County Department of Social Services ("DSS") filed a petition, which alleged Respondent-mother's children A.J., K.L. and R.E. were seriously neglected and dependent juveniles on 14 January 2014.

         The allegations of neglect were asserted after DSS received reports alleging Respondent-mother had abused her autistic grandson, while he was in her care, and that her adult children also reported that she abused them as children. DSS voluntarily dismissed the allegations of serious neglect and dependency. Pursuant to stipulations between the parties, the trial court adjudicated the juveniles to be neglected at a hearing on 9 June 2014. A.J. has reached the age of majority and is no longer part of this case.

         The trial court's disposition order retained physical and legal custody of the juveniles with DSS, and decreed for DSS to continue to make reasonable efforts towards reunification of the children with Respondent-mother. Following a hearing on 1 December 2014, the court entered a permanency planning order ("15 January 2015 order"). The court concluded the permanent plan was to place K.L. and R.E. into the custody of their married adult sibling ("Ms. E.") Respondent-mother appealed to this Court.

         In her initial appeal, Respondent-mother argued the trial court had improperly ceased reunification efforts. She asserted no appropriate findings were made, as required by N.C. Gen. Stat. § 7B-906.1(e)(1), to explain why it would not be possible for K.L. and R.E. to be returned to her custody within the next six months. She also asserted the court had not verified whether Ms. E. understood the legal significance of the custodianship pursuant to N.C. Gen. Stat. § 7B-906.1(j). In re K.L., 2015 WL 4898180 at *4-5.

         This Court held that the order appealed from did not show the trial court had ceased reunification efforts. The trial court's order specifically directed DSS to continue efforts to eliminate the need for continued placement of the juveniles outside of the home and DSS should continue efforts to reunify the juveniles with Respondent. Id. at *4.

         This Court further held the trial court's 15 January 2015 order made minimally sufficient findings to comply with N.C. Gen. Stat. § 7B-906.1(e)(1) and (j). The case was remanded for the trial court to enter a specific visitation schedule with the juveniles. Id. at *5-8.

         On 19 January 2016, a permanency planning hearing was held. On 12 May 2016, the court entered a subsequent permanency planning order which listed a visitation schedule, as required by this Court upon remand. The court also found that reasonable efforts to reunify the family would be futile, that the permanent plan was "previously achieved" and that legal and physical custody of K.L. and R.E. should remain with Ms. E. Respondent-mother again appeals to this Court.

         II. Jurisdiction

         Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(5) (2015).

         III. Issues

         Respondent-mother asserts the trial court improperly ceased reunification efforts and failed to follow statutory requirements, prior to granting permanent custody to Ms. E. Respondent-mother also argues the court violated the requirements of N.C. Gen. Stat. § 7B-906.1(n) and N.C. Gen. Stat. § 7B-905.1(d).

         IV. Standard of Review

         "This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, . . . 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. 207, 213, 644 S.E.2d 588, 594 (2007). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re N.G., 186 N.C.App. 1, 10-11, 650 S.E.2d 45, 51 (2007) (citation and internal quotation marks omitted), affirmed per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008). The trial court's conclusions of law are reviewed de novo on appeal. In re D.H., 177 N.C.App. 700, 703, 629 S.E.2d 920, 922 (2006) (citation omitted).

         V. Ceasing Reunification Efforts

         A. Purpose of Permanency Planning Hearing

         Our Juvenile Code provides:

Review hearings after the initial permanency planning hearing shall be designated as subsequent permanency planning hearings. The subsequent permanency planning hearings shall be held at least every six months thereafter or earlier as set by the court to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile.

N.C. Gen. Stat. § 7B-906.1(a) (2016).

         This Court affirmed the 15 January 2015 order, which included a finding that DSS should continue reunification efforts and that custody with a relative to be the permanent plan. This Court concluded the trial court's permanency planning order did not cease reunification efforts. In re K.L, 2015 WL 4898180 at *4.

         B. Statutory Requirements

         1. N.C. Gen. Stat. § 7B-906.1(d)

         At each permanency planning hearing, the trial court "shall consider the following criteria and make written findings regarding those that are relevant:"

(1) Services which have been offered to reunite the juvenile with either parent whether or not the juvenile resided with the parent at the time of removal or the guardian or custodian from whom the child was removed.
(2) Reports on visitation that has occurred and whether there is a need to create, modify, or enforce an appropriate visitation plan in accordance with G.S. 7B-905.1.
(3) Whether efforts to reunite the juvenile with either parent clearly would be unsuccessful or inconsistent with the juvenile's health or safety and need for a safe, permanent home within a reasonable period of time. The court shall consider efforts to reunite regardless of whether the juvenile resided with the parent, guardian, or custodian at the time of removal. If the court determines efforts would be unsuccessful or inconsistent, the court shall consider other permanent plans of care for the juvenile pursuant to G.S. 7B-906.2.
(4) Reports on the placements the juvenile has had, the appropriateness of the juvenile's current foster care placement, and the goals of the juvenile's foster care plan, including the role the current foster parent will play in the planning for the juvenile.
(5) If the juvenile is 16 or 17 years of age, a report on an independent living assessment of the juvenile and, if appropriate, an independent living plan developed for the juvenile.
(6) When and if termination of parental rights should be considered.
(7) Any other criteria the court deems necessary.

N.C. Gen. Stat. § 7B-906.1(d) (2016) (emphasis supplied).

         The trial court's order is required to "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 time. The trial court's written findings must address the statute's ...


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