STROUD, Judge.
Respondent-mother appeals from an order entered 27 January 2014 that terminated her parental rights to her minor children A.B. ("Alexis") and J.B. ("Jacob").
The Mecklenburg County Department of Social Services, Youth and Family Services ("DSS") initiated the underlying juvenile case by filing a petition on 8 September 2010, alleging the juveniles were neglected and dependent. DSS asserted that respondent had an extensive history of taking Jacob to the emergency room for unnecessary treatment and that she was beginning to show a similar pattern with Alexis. DSS further stated that Alexis had recently been hospitalized because she had consumed some of Jacob's seizure medicine, suggesting that respondent had given the medicine to Alexis. Additionally, DSS reported that respondent was overwhelmed and overly stressed from parenting the juveniles, missed numerous appointments to address Jacob's behavioral issues, was unemployed and struggled financially, and had difficulty following doctors' instructions when providing routine treatments to the children at home. DSS took non-secure custody of the juveniles that same day.
On or about 5 November 2010, DSS entered into a mediated agreement with respondent, establishing a case plan for reunification with the juveniles. Respondent's case plan required her to: (1) continue participating in an anger management program and demonstrate the skills learned; (2) complete parenting classes and demonstrate the skills learned; (3) maintain legal and stable employment providing sufficient income to meet the juveniles' basic needs; (4) maintain an appropriate, safe, and stable home for herself and the juveniles; (5) maintain weekly contact with her social worker; (6) cooperate with the guardian ad litem; and (7) attend the juveniles' medical and therapy appointments when able to do so. DSS and respondent also agreed to supervised visitation with the juveniles three times per week and a tentative holiday visitation plan.
After hearings on or about 7 January and 17 February 2011, the trial court entered an adjudication and disposition order holding that Alexis and Jacob were neglected juveniles. The court adopted concurrent goals of reunification and guardianship and set forth a case plan for respondent. The trial court adopted the mediated case plan developed by the parties and specifically directed respondent to undergo a complete psychological evaluation, obtain a domestic violence evaluation, and participate in counseling services or therapy.
DSS worked towards reunification of the juveniles with respondent, but in review and permanency planning orders entered 13 May and 31 August 2011, the trial court found respondent needed to further address her mental health and anger management problems. In a permanency planning order entered 19 January 2012, the court found that respondent had made some positive changes in that she was managing her anger, was "emotionally balanced" around the juveniles, and had realized that she needed "batterer's intervention treatment." But the court found that respondent still needed to complete her parenting capacity evaluation, show she could manage her mental health problems, and complete her domestic violence program. The court further found that there were no likely prospects for guardianship or permanent custody of the juveniles and set the permanent plan for the juveniles as reunification or adoption.
On 25 April 2012, the trial court entered a permanency planning order that ceased further efforts towards reunification of the juveniles with respondent, concluding respondent had failed to alleviate the conditions that caused the juveniles to be placed in the care and custody of DSS. The court directed that a Child Family Team ("CFT") meeting be held within thirty days of the order to develop recommendations for a permanent placement for the juveniles, and that DSS refrain from moving to terminate respondent's parental
DSS filed petitions to terminate respondent's parental rights to the juveniles on 25 July 2012. DSS alleged grounds existed to terminate respondent's parental rights based on neglect, abandonment, failure to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody, and willful failure to pay a reasonable portion of the cost of care for the juveniles while they were placed outside of her home. See N.C. Gen.Stat. § 7B-1111(a)(1)-(3), (7) (2013). The trial court heard the petitions on 25 March and 11 April 2013. At the conclusion of the hearing, the court found one ground to terminate respondent's parental rights: failure to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody. However, the court concluded that terminating respondent's parental rights was not in the best interests of the juveniles and directed respondent's counsel to prepare a proposed order for the court and circulate the order to all parties.
On 23 September 2013, before the trial court had entered an order on the termination petitions, DSS filed a "Motion for Relief from Order and Motion to Consider Additional Evidence" pursuant to North Carolina Rule of Civil Procedure 60. See id. § 1A-1, Rule 60 (2013). DSS asked that the trial court reconsider its best interests conclusion based on allegations that respondent had misled the court by providing inaccurate information and testimony at the termination hearing, and that she had failed to comply with her case plan since the termination hearing. The trial court allowed the motion and held an additional hearing on 1 October and 4 November 2013 in which it allowed DSS to present additional dispositional evidence as to the best interests of the juveniles.
By order entered 27 January 2014, the trial court terminated respondent's parental rights to the juveniles. The Court found that respondent had failed to make reasonable progress to correct the conditions that led to the juveniles' removal from her care and custody, and concluded that it was in the juveniles' best interests to terminate her parental rights. Respondent filed timely notice of appeal.
Termination of parental rights proceedings are conducted in two stages: adjudication and disposition. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). "In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen.Stat. § 7B-1111(a)." In re D.H., ___ N.C.App. ___, ___, 753 S.E.2d 732, 734 (2014); see also N.C. Gen. Stat. § 7B-1109(e) (2013). This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." In re S.C.R., 198 N.C. App. 525, 531, 679 S.E.2d 905, 909 (quotation marks omitted), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). However, "[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." In re S.N., X.Z., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
"If the trial court determines that at least one ground for termination exists, it then proceeds to the disposition stage where it must determine whether terminating the rights of the parent is in the best interest of the child, in accordance with N.C. Gen.Stat. § 7B-1110(a)." D.H., ___ N.C.App. at ___, 753 S.E.2d at 734. The trial court's determination of the child's best interests is reviewed
Respondent argues that the trial court erred in concluding that she had not made reasonable progress towards correcting the conditions that led to the removal of the juveniles from her care. Respondent contends that the trial court's findings of fact are contradictory and do not support its conclusions of law. Respondent further argues that the trial court's conclusion of law that it is in the juveniles' best interests to terminate respondent's parental rights is internally contradictory. We agree and remand this matter to the trial court for the entry of a new order.
The trial court concluded that respondent willfully left the juveniles in foster care for more than twelve months without showing the court that she made reasonable progress toward correcting the conditions that led to the removal of the juveniles from her home. See N.C. Gen.Stat. § 7B-1111(a)(2). In working toward reunification with the juveniles, respondent was directed to: (1) complete a parenting education program and demonstrate the skills learned; (2) complete a domestic violence counseling and batterer's intervention program; (3) obtain a psychological evaluation and fully engage in therapy; (4) maintain appropriate visitations with the juveniles; (5) maintain appropriate and safe housing; (6) maintain employment; and (7) maintain contact with DSS. The court's order is silent regarding respondent's history of contact with DSS during the case and indicates that the court is satisfied with respondent's progress in the area of parenting education, but the court's findings on respondent's progress in the areas of visitation and employment are contradictory. The court identified mental health and domestic violence as its primary concerns regarding respondent's progress towards correcting the conditions that led to the removal of the juveniles from her care, but it made contradictory findings regarding her progress in those areas as well.
The court made the following findings that support its conclusion that respondent failed to make reasonable progress toward addressing her mental health problems:
However, the court also made findings of fact contradicting those above:
Similarly, the court made the following findings regarding respondent's lack of progress in addressing her domestic violence issues:
But again, the court made substantial findings contradictory to its ultimate conclusion:
It is not unusual for an order terminating parental rights to include both favorable and unfavorable findings of fact regarding a parent's efforts to be reunited with a child, and the trial court then weighs all the findings of fact and makes a conclusion of law based upon the findings to which it gives the most weight and importance. But here, the trial court's ultimate conclusion of law concerning the best interests of the juveniles is also internally inconsistent. The court concluded that "it is in the best interest of the juveniles to have their mother's parental rights terminated in that severing the legal relationship would be emotionally unhealthy and damaging to the children." Certainly, the trial court did not terminate respondent's parental
Petitioner seeks to explain this illogical conclusion of law in its brief as follows:
While we appreciate the candor of petitioner's counsel in attempting to take responsibility for this clearly improper conclusion of law, this argument cannot remedy the problem. First, the order is the responsibility of the trial court, no matter who physically prepares the draft of the order. See In re T.H.T., 362 N.C. 446, 455, 665 S.E.2d 54, 60 (2008) (holding that, in an abuse, neglect, or dependency proceeding, a trial court has a legal duty to enter a timely written order); N.C. Gen.Stat. § 1A-1, Rule 58 (2013) (requiring a judge's signature on judgments). Second, counsel's representations regarding the preparation of the order are not matters of record, because a brief is not a source of evidence which this Court can consider. See Builders Mut. v. Meeting Street Builders, ___ N.C.App. ___, ___, 736 S.E.2d 197, 200 (2012) ("[M]atters discussed in a brief but not found in the record will not be considered by this Court."). We also understand that the initial drafts of most court orders in cases in which the parties are represented by counsel are drafted by counsel for a party. Unfortunately, in North Carolina, the majority of District Court judges have little or no support staff to assist with order preparation, so the judges have no choice but to rely upon counsel to assist in order preparation. Considering the lack of adequate staff to address the increasing number of cases heard by our District Courts, some mistakes are inevitable.
If the only problem in the order was one poorly worded conclusion of law, we might be able to determine that this conclusion of law contains a clerical error that could be remedied by a direction to correct it on remand. But the internal inconsistencies of the order go far beyond one sentence. As noted above, there are contradictory findings as to respondent's mental health care and her domestic violence issues. In contradiction to its ultimate conclusions regarding grounds for termination and the juveniles' best interests, the court found:
Since neglect was the only ground for adjudication of the children,
Another troubling aspect of the order is the extent of its apparent reliance upon the financial benefits conferred upon the Bryants, the potential adoptive parents, by
N.C. Gen.Stat. § 7B-1110 sets forth the factors that the trial court should consider in determining if termination is in the best interest of the children:
N.C. Gen.Stat. § 7B-1110(a) (2013).
In its findings regarding best interests, the main addition to the evidence presented at the 1 October and 4 November 2013 hearing, which was not presented at the first hearing, was the information regarding the financial assistance available to the Bryants if they adopted the children. In fact, the trial court found that
(Emphasis added.)
Thus, perhaps because of the inconsistencies in the other findings as addressed above, this finding regarding the availability of additional financial assistance due to adoption seems to be the factor that tipped the "best interest" scales in favor of termination of parental rights, despite its prior conclusion that termination would not be in the best interests of the children.
On 23 September 2013, DSS filed a "Motion for Relief from Order and Motion to Consider Additional Evidence" pursuant to North Carolina Rule of Civil Procedure 60, which is entitled "Relief from judgment or order." See id. § 1A-1, Rule 60. Although respondent did not appeal from the trial court's order allowing DSS's Rule 60 motion, she argues that some of the trial court's findings in the order on appeal were based upon evidence taken at the hearing which was held as a result of the order allowing this motion and that the evidence and findings from this hearing went beyond the scope of the trial court's order.
We first note that the order was not properly based upon Rule 60. On 23 September 2013, the trial court had not yet entered a judgment or order as it had not yet reduced its findings and conclusions to writing. See id. § 1A-1, Rule 58 ("[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court."). Because a party cannot seek relief from a non-existent order, we treat DSS's motion according to its substance as a motion to reopen the evidence, instead of a Rule 60 motion. See Lee v. Jenkins, 57 N.C. App. 522, 524, 291 S.E.2d 797, 798 (1982) (treating a motion as to its substance, rather than form).
It is within the discretion of the trial judge to reopen a case and to admit additional evidence after both parties have rested. State v. Shutt, 279 N.C. 689, 695, 185 S.E.2d 206, 210 (1971), cert. denied, 406 U.S. 928, 92 S.Ct. 1805, 32 L.Ed.2d 130 (1972). Respondent did not object to DSS's motion and has not argued on appeal that the order should not have been entered. The trial court allowed DSS's motion to reopen the evidence but expressly limited the 1 October and 4 November 2013 hearing to dispositional evidence regarding the best interests of the juveniles. In addition, in response to an objection to hearsay during the hearing, the trial court noted that it "only granted the motion to reopen evidence on best interest, not grounds, and so all of this evidence [was] only being considered for that portion of the proceedings[.]"
Respondent argues that, at the 1 October and 4 November 2013 hearing, the trial court also considered adjudicatory evidence and made additional findings as to respondent's compliance with her case plan, which was beyond the scope of the trial court's order allowing additional evidence as to best interests. It does appear that the evidence at this hearing went beyond the scope of the trial court's order. But respondent did not object to the presentation of any specific evidence as being beyond the scope of the order, so she has waived any arguments on appeal in this regard. See N.C.R.App. P. 10(a)(1). Because of the internal inconsistencies in the order on appeal, we cannot discern which portions of the evidence the trial court relied upon in making its findings and conclusions. Since we must reverse and remand to the trial court for entry of a new order addressing both adjudication and disposition, the trial court should consider the limitation of the 1 October and 4 November hearing in making its new findings of fact and conclusions of law and may in its discretion consider additional evidence and arguments from the parties. See In re T.M.H., 186 N.C. App. 451, 456, 652 S.E.2d 1, 3, disc. rev. denied, 362 N.C. 87, 657 S.E.2d 31 (2007).
The contradictory nature of the trial court's findings of fact and conclusions of law prohibit this Court from adequately determining if they support the court's conclusions of law that (1) respondent failed to make reasonable progress toward correcting the
Because we must reverse and remand this matter to the trial court, we do not address respondent's remaining arguments on appeal. The trial court may receive additional evidence on remand, within its sound discretion. Id., 652 S.E.2d at 3.
REVERSED AND REMANDED.
Judges DILLON and DIETZ concur.
