North Carolina Lawyers Weekly
The trial court’s findings that “reunification clearly would be unsuccessful [and] futile” and that reunification “may be possible within the next six months,” are materially contradictory. Reunification cannot be both futile and possible. This contradiction amounts to more than a mere clerical error and cannot be reconciled in order to relieve DSS of reunification efforts.
We vacate the trial court’s order relieving DSS of reunification efforts and remand for further proceedings.
We also agree with respondent-Mother’s contention that decree 8 of the trial court’s order is contradictory at this stage of the proceedings. The trial court ordered Mother to undergo a psychological evaluation that includes a parental capacity assessment. Mother has been working with DSS for four years and has undergone mental health evaluations. This evaluation specifically would have Mother also complete a “parental capacity assessment.” Such an evaluation would be unnecessary if reunification were no longer a goal.
Vacated and remanded.
Dissent
(Carpenter, J.) The finding that the respondent-parents might regain legal custody within six months is unsupported by the evidence. Moreover, the grant of legal custody to the juvenile’s parents, while physical custody remains with DSS or another placement, is not a disposition authorized under G.S. § 7B-906.1, nor is it an alternative disposition allowed under G.S. § 7B-903. The trial court erred in making two findings, which taken together, support a disposition not permitted by statute.
Nevertheless, the remainder of the trial court’s findings support its order ceasing reunification efforts. The record resolves the conflict because finding of fact 52 is not supported by competent evidence and is inconsistent with numerous other findings made by the trial court. It is clear the trial court did not intend to consider granting respondent-parents legal custody of T.D.N. within the next six months where the remaining findings support the cessation of reunification efforts and where the trial court found respondents could not obtain physical custody of T.D.N. in the next six months.
Moreover, at the conclusion of the 11 August 2021 permanency planning hearing, the trial court orally announced extensive findings, supporting its decision to cease reunification efforts. The trial court noted it had “some serious concerns in th[e] matter,” and made specific findings relating to Mother’s actions during the pendency of the case, including “her attempts to sabotage placement” and her making false reports concerning T.D.N.’s welfare. It also made findings regarding respondents’ non-compliance with their case plans.
The trial court expressly found legal and physical custody would remain with DSS. Contrary to written finding of fact 52, the trial court did not find at the hearing that T.D.N. may be returned to respondents within the next six months. Therefore, I conclude finding of fact 52 is unsupported by competent evidence in the record.
In addition, the trial court’s written order is silent as to whether T.D.N.’s best interests require Mother to complete a psychological evaluation. Therefore, the trial court did not fulfill the statutory requirement of G.S. § 7B-904(c). Accordingly, I would vacate decree 8.
In re T.D.N. (Lawyers Weekly No. 011-205-22, 24 pp.) (April Wood, J.) (Jeffery Carpenter, J., concurring in part & dissenting in part) Appealed from Brunswick County District Court (Pauline Hankins, J.) Mark Hayes for respondent; Jane Thompson for petitioner; Michelle FormyDuval Lynch for guardian ad litem. 2022-NCCOA-787
