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In re H.L.

Court of Appeals of North Carolina

November 21, 2017

IN THE MATTER OF: H.L.

          Heard in the Court of Appeals 19 October 2017.

         Appeal by respondent-father from order entered 24 January 2017 by Judge Laura Powell in McDowell County District Court No. 16 JA 113

          Aaron G. Walker for petitioner-appellee McDowell County Department of Social Services.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellant father.

          Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for guardian ad litem.

          No brief was filed on behalf of respondent-mother.

          BRYANT, JUDGE.

         Respondent-father appeals from the trial court's order following a combined adjudication, disposition, and permanency planning hearing. The order concluded that respondent-father's minor child ("Hannah")[1] was neglected and dependent, relieved DSS from its obligation to pursue reunification efforts, and awarded guardianship of Hannah to her adult half-sister. We affirm in part, reverse in part, and remand.

         On 4 October 2016, McDowell County Department of Social Services ("DSS") filed a juvenile petition alleging that Hannah was neglected and dependent. DSS alleged that it had previously been involved with the family on multiple occasions, due to domestic violence and substance abuse. On 24 February 2016, DSS received a report that respondent-father and Hannah's mother were involved in an argument over Hannah and her mother leaving the home. Hannah's sister came to the home in order to remove Hannah from the scene. Respondent-father and the mother were each pulling on Hannah while she was screaming and crying. Eventually, respondent-father relented, and Hannah's sister was able to leave the home with Hannah.

         In April 2016, the parents entered into a safety plan with DSS and Hannah was placed with her sister as a safety resource placement. Under the plan, the parents were not permitted to remove Hannah from her sister's care. The plan also required both parents to submit to clinical assessments and to submit to random drug screens and follow any recommendations. Both parents submitted drug screens in April and July 2016, of which both screens tested positive for methamphetamines.

         The petition was heard on 9 January 2017. After hearing testimony and reviewing other evidence, the trial court orally adjudicated Hannah a neglected juvenile. The case then moved to disposition. On 24 January 2017, the trial court entered an "Adjudication, Dispositional, 90 Day Review, & Permanency Planning Order." The written order adjudicated Hannah as neglected and dependent, awarded guardianship of Hannah to her sister, and relieved DSS of the obligation to pursue reunification efforts. Respondent-father filed timely notice of appeal.[2]

         On appeal, respondent-father argues that the trial court erred by (I) adjudicating Hannah a neglected and dependent juvenile; (II) awarding guardianship of Hannah to her adult sister as an initial disposition; (III) conducting a concurrent 90-day review and permanency planning hearing and establishing a secondary permanent plan of reunification; and (IV) including inconsistent provisions regarding visitation in its order.

         I

         Respondent-father argues that the trial court erred by adjudicating Hannah a neglected and dependent juvenile. We disagree that the court erred by adjudicating Hannah neglected, but agree that the court erred by adjudicating her dependent.

         A. Standard of Review

         This Court's review of an order adjudicating a juvenile neglected and dependent is limited to determining "(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 Pittman, 149 N.C.App. 756, 763-64, 561 S.E.2d 560, 566 (2002) (citation omitted). Unchallenged findings are binding on appeal. In re C.B., 180 N.C.App. 221, 223, 636 S.E.2d 336, 337 (2006).

[Moreover, ] it is not per se reversible error for a trial court's fact findings to mirror the wording of a petition or other pleading prepared by a party. Instead, this Court will examine whether the record of the proceedings demonstrates that the trial court, through processes of logical reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case. If we are confident the trial court did so, it is irrelevant whether those findings are taken verbatim from an earlier pleading.

In re J.W., 241 N.C.App. 44, 48-49, 772 S.E.2d 249, 253, disc. review denied, 368 N.C. 290, 776 S.E.2d 202 (2015).

         B. Neglect

         Respondent-father first contends that the trial court erred by concluding that Hannah was neglected. A neglected juvenile is defined in relevant part as

[a] juvenile 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 lives in an environment injurious to the juvenile's welfare[.] . . . In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2015). When, as in the present case, the child has been voluntarily removed from the home prior to the filing of the petition,

the court should consider "evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the [adjudication] proceeding."

In re K.J.D., 203 N.C.App. 653, 660, 692 S.E.2d 437, 443 (2010) (alteration in original) (quoting In re Brim, 139 N.C.App. 733, 742, 535 S.E.2d 367, 372 (2000)). Essentially, the trial court must consider "the conditions and the fitness of the parent to provide care ...


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