Relief from court orders

[Marina]

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http://www.5dca.org/Opinions/Opin2008/0 ... 049.op.pdf

LAWSON, J.
In this expedited and consolidated appeal, the mother of J.B., K.B., C.B. and
B.B., appeals four post-disposition dependency orders. She argues that the trial court
violated her due process rights by reinstating supervision and removing the children
from her custody without proper notice, and without initiating a new dependency
proceeding where the children were never adjudicated dependent and the court had
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already successfully terminated supervision. Although the orders appealed are neither
final orders nor appealable non-final orders, we treat this appeal as a petition for writ of
certiorari. Finding that the lower court's reinstatement of supervision and change of
custody was not authorized by statute, we also find that the orders constitute a
departure from the essential requirements of law, and grant the writ.

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[Marina]

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Disposition

http://www.aoc.state.nc.us/www/public/c ... 1242-1.htm

Respondent mother appeals from the district court's adjudication and dispositional order adjudicating her minor child as neglected. We affirm the trial court's adjudication of neglect, but we cannot determine from the order the precise disposition of the trial court; which facts it found in support of the disposition; or its reasoning in making that disposition. We must, therefore, vacate the disposition portion of the order and remand for further findings of fact and conclusions of law and clarification of the decretal portion of the order.
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Nevertheless, N.C.R. App. P. 21(a)(1) provides that a "writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action . . . ." We believe that this is an appropriate case in which to exercise our discretion and allow respondent's petition for writ of certiorari. Although the order at issue involves only an initial adjudication of neglect, the disposition could be read as ordering DSS to cease reunification efforts with respondent _ effectively, a termination of respondent's parental rights less than three months after the birth of Adam. The error depriving this Court of jurisdiction appears to be due to trial counsel's mistake regarding the requirements of the Rules of Appellate Procedure. Given the serious consequences of the adjudication order, the lack of any evidence that respondent contributed to the error, and the need to resolve the ambiguity in the order's disposition, as discussed below, we believe that review pursuant to a writ of certiorari is appropriate.

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VII

Respondent's final argument on appeal concerns the court's dispositional order. Respondent argues that (1) the trial court improperly delegated its fact-finding function by broadly incorporating by reference the DSS and GAL reports, and (2) the court failed to make the findings required by N.C. Gen. Stat. § 7B- 507 (2007) to cease reunification efforts. Based upon our reviewof the trial court's disposition order, we cannot decipher either what the trial court actually found or what the trial court intended to order. We, therefore, must vacate the disposition portion of the order and remand for further findings of fact and conclusions of law.

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Thus, in the findings of fact, the court appeared to adopt the DSS and GAL recommendation that the plan change from reunification to guardianship. On the other hand, in the conclusion of law section of the order, the court appears to require DSS to continue with reunification efforts. Finally, in the decretal portion the court makes no reference to the plan or whether reunification efforts should cease. The order does place requirements on respondent that would appear to be unnecessary if reunification efforts were to cease. ..

Thus, we must remand for clarification of what the trial court intended. On remand, the trial court should specify not only what it is ordering, but also the specific facts and reasoning upon which that order is based. As this Court has explained: In juvenile proceedings, it is permissible for trial courts to consider all written reports and materials submitted in connection with those proceedings. Despite this authority, the trial court may not delegate its fact finding duty. Consequently, the trial court should not broadly incorporate these written reports from outside sources as its findings of fact...

The trial court's bare finding that "the statements set forth" in the reports "are true" does not tell this Court upon which assertions in those reports the trial court was relying. ..

there is no finding of fact identifying the conditions on which both parents had failed to progress. The language appears to be boilerplate that, without further clarification, does not necessarily apply to the specific circumstances of this case. (See footnote 4) Accordingly, on remand, the trial court must clarify its disposition; must specify which statements in the reports it is finding as a fact; and must make findings of fact specifically relating to Adam that support its disposition. See J.S., 165 N.C. App. at 513, 598 S.E.2d at 661 ("Since the trial court's findings are not sufficiently specific to allow this Court to review its decision and determine whether the judgment was correct, and since the findings also fail to comply with the statutory requirements, we remand this matter to the district court to make appropriate findings of fact.").

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