In re S.J.

STEELMAN

Appeal by mother from orders entered 19 March 2012 and 19 April 2012 by Judge John B. Carter, Jr., in Robeson County District Court. Heard in the Court of Appeals 30 January 2013. No brief filed by Robeson County Department of Social Services, petitioner-appellee. Jason Hayes Law Firm by Dennis D. Maxwell, Jr., for guardian ad litem.
Appellate Defender Staples S. Hughes by Assistant Appellate Defender J. Lee Gilliam for mother, respondent-appellant.
STEELMAN, Judge.

Where the trial court failed to make findings of fact as to whether the adjudication order was a consent order and to enter an appropriate visitation arrangement in the dispositional order, we remand this matter to the trial court to make specific findings of fact on whether the adjudication was entered by consent and to address the visitation rights of the mother.

On 18 January 2012, Robeson County Department of Social Services (DSS) filed a juvenile petition alleging that S.J. was a neglected juvenile because she “does not receive proper care, supervision, or discipline” and “lives in an environment injurious to [her] welfare.” The petition alleged that domestic violence, improper discipline, drug use, and sexual impropriety occurred in the home. At the time of the events alleged in the petition, S.J. was living in the home of her mother, with her half-sister, K.B.

The trial court held an adjudication hearing on 15 February 2012. The following exchange occurred at the adjudication hearing:

[DSS ATTORNEY]: We're agreeing to adjudicate today by consent on the facts, except for the allegations of drug use by the mother. She is denying that, that are set forth in the facts. But we're asking to adjudicate dependency and postpone disposition hearing until the 21st—March the 21st to allow for some home studies of both fathers[.]

[FATHER'S ATTORNEY]: Your Honor, noone [sic] has asked me if I consented to this.

[DSS ATTORNEY]: Okay, well, we're not saying, we're proposing; how is that?

[THE TRIAL COURT]: So you don't want a home study?

There was no other discussion concerning the consent of the parties. After a brief exchange about the home study of S.J's father between the trial court, father's attorney, and attorney for DSS, mother's attorney stated:

Your Honor, if I may, I am asking that the disposition be held open—I'm sorry—continued and that the—that the home study be complete. My client has indicated some serious concerns about the home of [S.J's father], and that's the only reason. I think that would clear up a lot of questions as to whether or not the home is actually safe for the child. I think it would be in everybody's best interests, your Honor. If we could, just clear that up and—
On 19 March 2012, the trial court entered its order adjudicating S .J. dependent. The trial court held a dispositional hearing on 21 March 2012 and on 19 April 2012, the trial court entered its dispositional order awarding legal and physical custody of S.J. to her father.

Mother appeals.

“Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.” N.C.R.App. P. 28(b)(6) (2009).

In the petition alleging S.J. a neglected juvenile, DSS also alleged mother's second child, K.B., neglected. The trial court also adjudicated K.B. dependent and removed her from the home in the same proceedings as those dealing with S.J. In her brief, mother contends the trial court erred only in respect to S.J. and therefore, we deem any issues relating to K.B. abandoned.

In her first argument, mother contends that the trial court's findings of fact do not support the entry of a consent order. We agree.

“A proper review of a trial court's finding of [dependency and] neglect entails a determination of (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 Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000)(internal citations omitted). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

The Juvenile Code requires an adjudicatory hearing to determine the existence or nonexistence of the conditions alleged in a petition. N.C. Gen.Stat. § 7B–802 (2011). However, the trial court may enter a consent adjudication order when: “(1) All parties are present or represented by counsel, who is present and authorized to consent. (2) The juvenile is represented by counsel. (3) The court makes sufficient findings of fact.” N.C. Gen.Stat. § 7B–801(b1) (2011). “ ‘A judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court[.]’ “ Thrift v. Buncombe Cty. Dep't of Soc. Servs., 137 N.C.App. 559, 562, 528 S.E.2d 394, 396 (2000) (quoting McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948)). This Court has found consent when a party's attorney consented on the record, while the party remained silent. In re J .N.S., 207 N.C.App. 670, 678, 704 S.E.2d 511, 516–17 (2010). The Court determined that since counsel had consented to the adjudication and there was no evidence of an objection to the entry of a consent order, the party had “not preserved this issue for appellate review.” Id. at 670, 704 S.E.2d at 517. In the criminal context, our Supreme Court has found a stipulation to a defendant's sentencing record when counsel fails to object to a record after being given an opportunity to do so. State v. Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005) (“[A] defendant need not make an affirmative statement to stipulate to his or her prior record level or to the State's summation of the facts, particularly if defense counsel had an opportunity to object to the stipulation in question but failed to do so.”); State v. Mullican, 329 N.C. 683, 686, 406 S.E.2d 854, 855 (1991)(holding that the prosecuting attorney's statement that he would summarize the State's evidence with the permission of the defendant was “an invitation to the defendant to object if he had not consented” and defendant's failure to object allowed the Court to infer consent).

In the instant case, the adjudication order is completely devoid of any reference to the parties' stipulation or consent. DSS filed a brief in this case, filed a motion to strike their brief, which was granted by this Court, and never filed another brief. Adding to the confusion, the petition alleges neglect and the trial court adjudicated S.J. dependent. No evidence was presented by DSS at the hearing and the trial court's findings of fact recite verbatim a document that was never introduced into evidence. Our review of the transcript indicates that DSS stated the parties agreed to adjudicate by “consent on the facts, except for the allegations of drug use by the mother,” father's attorney objects, and mother's attorney remains silent. It is unclear whether father's objection pertained to the home study, the entry of the consent order, or both. While it is clear that at no time did either mother or mother's attorney object to the order being entered by consent, the trial court's findings of fact are insufficient to establish consent or stipulation by the parties. We remand this matter to the trial court to make specific findings of fact as to whether it was a consent order. The trial court may in its discretion decide to hear more evidence in this matter.

In mother's third argument, she contends that the trial court erred in failing to enter an appropriate visitation arrangement in its dispositional order. We agree and address this argument since it is likely to be an issue upon remand.

“Any dispositional order under which a juvenile is removed from the custody of a parent ... shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety.” N.C. Gen.Stat. § 7B–905(c) (2011). In the absence of findings of fact that it is detrimental to the child's best interest to award visitation or that the parent forfeited her right to visitation, “the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised.” In re Stancil, 10 N.C.App. 545, 552, 179 S.E.2d 844, 849 (1971).

In the instant case, the trial court found that it was in S. J's best interests to award legal and physical custody to her father. The dispositional order is devoid of any finding that it is in S.J.'s best interest to deny visitation to mother, that mother forfeited her right to visitation, or of any provision that established the conditions under which mother may exercise visitation rights. On remand, the trial court shall make additional findings of fact regarding mother's visitation and if necessary, provide for a schedule of mother's visitation in the dispositional order.

Based upon the foregoing rulings, we need not address mother's remaining arguments.

REMANDED. Judges GEER and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).