In re L.L., _ N.C. _ (December 13, 2024)

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Held:

Reversed

There is a dissent

by Riggs, J., joined by Earls, J.

Facts and procedural history: This case arises from the appeal of a permanency planning order awarding custody to petitioners, the child’s foster parents. DSS filed a petition alleging the child was abused and neglected based on unexplained severe injuries the child sustained as a one-month-old while in the sole care of his parents. As a result of the severe injuries sustained, the child suffers from cerebral palsy, continued seizures, developmental delay, and other disabilities requiring full-time care at home and constant medical monitoring. After the petition was filed Mother moved to Georgia and entered a case plan with DSS that included participating in the child’s medical care. The child was placed with a foster family, the petitioners, upon discharge from the hospital. The child was adjudicated abused and neglected. During permanency planning, the child’s maternal grandfather, who lives in Georgia, expressed interest in custody. The GAL recommended the child remain with petitioners who provide and are committed to continuing the child’s intensive care. The GAL also emphasized that the child becomes unresponsive if the foster mother is not present due to the child’s limited cognitive abilities. DSS recommended placement with the grandfather, who testified that he is willing and able to care for the child with his partner. No party recommended reunification. Prior PPOs and the final PPO found Respondent-Mother never plausibly explained the severe injuries or participated in the child’s medical care as ordered. The court granted legal and physical custody of the child to petitioners. Respondent-Mother appealed. In vacating and remanding the PPO, the court of appeals determined the findings of fact challenged by Respondent-Mother were supported by the evidence but that the findings failed to satisfy the relevant statutory requirements to eliminate reunification as a permanent plan. Petitioners filed a petition for discretionary review. This summary discusses petitioners’ argument that the court of appeals erred in holding the trial court failed to make sufficient findings under G.S. 7B-906.1(e), G.S. 7B-906.2(b), and G.S. 7B-906.2(d).
Appellate courts interpret statutory provisions de novo. Dispositional choices of the trial court are reviewed for abuse of discretion.
G.S. 7B-906.1(e) requires the trial court at each permanency planning hearing where the child is not placed with the parent to consider listed criteria and make written findings regarding those that are relevant. One of the considerations includes whether it is possible for the child to be placed with a parent in the next six months. The supreme court relied on its interpretation of identical language in G.S. 7B-1110(a), and stated “only relevant criteria require written findings” and “[t]he trial court has discretion to determine which factors were relevant.” Sl. Op. at 11. Findings are not required for uncontested factors.
- The trial court was not required to make written findings as to whether the child could be placed with Respondent-Mother in the next six months, as it was uncontested that the child could not, and such placement was never advocated by any party during the permanency planning process. The trial court did not abuse its discretion under G.S. 7B-906.1(e) by choosing not to make a written finding on this uncontested criterion. Even though not required, the trial court’s consideration of the factor can be properly inferred from the findings, including that the parents were and continue to be unable to provide a plausible explanation for the child’s severe injuries; the child’s injuries were the result of nonaccidental trauma while in the exclusive care of his parents; and Respondent-Mother’s failure to comply with her case plan that addressed the effect of the child’s injuries.
G.S. 7B-906.2(b) requires reunification be the child’s primary or secondary plan unless the trial court “makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety.”
G.S. 7B-906.2(d) requires the court make written findings at each permanency planning hearing of factors “which shall demonstrate the degree of success or failure toward reunification.” “[O]nly those factors which demonstrate the degree of success or failure toward reunification require written findings.” Sl. Op. at 16. Written findings are not required for inapplicable factors. G.S. 7B-906.2(d) factors include whether the parent is (1) making reasonable progress on their case plan; (2) actively participating and cooperating with DSS and the GAL; (3) available to the court, DSS and the GAL; and (4) their actions are inconsistent with the health or safety of the child. Subsection (b) and (d)(4) are “synonymous” and “warrant[] the same analysis.” Sl. Op. at 16.
- Author’s Note: This opinion holds findings on all four factors in G.S. 7B-906.2(d) are not required, which deviates from prior appellate holdings. Further, it holds a finding under G.S. 7B-906.2(b) is the same as a finding under G.S. 7B-906.2(d)(4), which is also a departure from prior appellate holdings.
Written findings do not need to track the statutory language verbatim but “they must make clear that the trial court considered the evidence in light of whether reunification would be clearly unsuccessful or would be inconsistent with the juvenile’s health, safety, and need for a safe, permanent home within a reasonable period of time.” Sl. Op. at 15 (citation omitted).
- The trial court satisfied the requirements of G.S. 7B-906.2(b) and G.S. 7B-906.2(d)(4). Findings demonstrating that reunification is inconsistent with the health or safety of the child include the child’s severe injuries suffered from abuse while in the parents’ care and that Respondent-Mother has never plausibly explained the cause of the injuries, was charged with felony child abuse, and failed to comply with trial court orders to participate in the child’s medical care to become familiar with the child’s extreme needs. “[T]his Court has repeatedly held that a parent’s failure to offer an honest explanation for his or her child’s injuries while the child was in that parent’s sole custody can satisfy N.C.G.S. 7B-906.2(b) and 7B-906.2(d)(4).” Sl. Op. at 17. Therefore, the findings that Respondent failed to take responsibility for the severe abuse of the child while in Respondent’s care was sufficient. The court’s further findings “amount to more than enough to support the conclusion . . .”Sl. Op. at 18.
- Findings in the DSS report incorporated by reference into the PPO chronologically list all contact between the parents with the trial court, DSS, and the GAL, and detail Respondent-Mother’s participation with the case plan. “When trial courts incorporate documents by reference, factual findings contained in those documents – but not their opinions or recommendations – become the findings of the trial court’s order.” Sl. Op. at 19 (citation omitted). The incorporated findings are sufficient to satisfy the requirements of G.S. 7B-906.2(d)(2) and (d)(4).
Dissent: The trial court did not meet the statutory requirements to eliminate reunification under G.S. 7B-906.2(b) or (d) and the PPO should be remanded for further findings. The plain language of G.S. 7B-906.2(d) requires the court to make written findings as to each factor. G.S. 7B-906.2(b) and 7B-906.2(d)(4) are independent determinations that require separate findings. Additionally, information in the DSS and GAL reports do not satisfy the trial court’s statutory obligation to make written findings.