An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-316
                                          &nb sp; 
                                          &nb sp; 
Filed: 4 March 2003

IN THE MATTERS OF: SHEILA            Wilkes County
NICOLE SOUTHER and RACHEL             No. 00 J 14 and

    Appeal by respondent from order entered 12 July 2001 by Judge David V. Byrd in Wilkes County District Court. Heard in the Court of Appeals 22 January 2003.

    No brief filed by petitioner-appellee.

    Marjorie S. Canaday for respondent-appellant.

    MARTIN, Judge.

    Respondent Pamela Souther appeals from a permanency planning order in which the district court ordered the Department of Social Services (“DSS”) to retain custody of respondent's children, Sheila and Meshell, cease reunification efforts, and initiate proceedings for termination of parental rights (“TPR”) and adoption of the children.
    On 10 April 2000, Sheila and Meshell Souther were adjudicated neglected juveniles. According to the DSS Court Summary submitted at the 10 April hearing, the case began when DSS received reports in October 1999 that respondent had allowed a 17-year-old male, Carl Teague, to live in their family home and that Sheila, age 12, had become sexually active with him. The Court Summary indicated that at first DSS worked with the family to improve the situation rather than assume custody of the children. Respondent wasinformed by DSS that she must supervise Sheila more effectively and respondent attended parenting classes. However, according to the Court Summary, respondent continued to allow Sheila to be alone with older males, including her older brother Dwayne, who respondent had learned had also engaged in sexual activity with Sheila. After discovering that Sheila was sexually active with a male named Jessie Sprinkle, age 20-24, on 9 January 2000, respondent made a report to the sheriff's department on 11 January 2000. However, she continued to let Sprinkle visit the home. On 26 January 2000, Sheila sneaked out of her home and went to the home her brother Dwayne shared with Sprinkle. Although respondent claimed she told Sheila to return home, Sheila did not return and respondent did not bring her home. The next day, a social worker found Sheila asleep on the sofa in her brother's home wearing a T- shirt. At that point, Sheila was taken into DSS's custody. DSS learned on 23 February 2000 that Sheila had been sexually active with Sprinkle.
    According to the Court Summary, after Sheila was removed from the home, Dwayne moved back in. Although there was no evidence that Meshell, age 3, had been sexually abused, DSS removed Meshell from the home on 28 February 2000 due to her brother's presence and the history of abuse and lack of supervision in the family.
    The order entered after the 10 April neglect hearing reflected testimony by respondent at that hearing as to a history of sexual abuse in the family. Based on respondent's testimony, the trial court found as a fact in the neglect order that Carl Souther,respondent's husband and the father of Sheila, Meshell, Dwayne, and an older daughter, had sexually abused the older daughter in the past. The older daughter then was sexually active with her younger brother Dwayne, who then was sexually active with Sheila. According to the court's findings, respondent asserted that she only learned of the abuse by her husband two years earlier. She also asserted that she was not aware of the sexual activity involving the siblings until recently. The trial court found that respondent “seems to lack insight into problems of the children and her need to be stronger in her supervision of the children.”
    In the neglect order, the district court found that respondent's home was owned by her older children. The court also found that respondent had been separated from her husband Carl for one and a half years. Although Carl called home regularly, respondent testified at the neglect hearing that she did not want anything to do with him. Carl did not appear at the neglect hearing. Pursuant to the adjudication of neglect the trial court ordered that custody of Sheila and Meshell continue with DSS and that DSS utilize reasonable efforts to reunite the children with their mother. The district court ordered, inter alia, that (1) respondent participate in any courses of counseling required by DSS and “demonstrate that she understands the nature of the problems that exist with regard to her supervision of her children, and the needs of her children,” (2) respondent find a new residence, (3) the brother Dwayne not be allowed any contact with Sheila or Meshell, and (4) respondent visit with Sheila on the schedule DSSpreviously established and with Meshell once a week for three hours. Although the visitation with Meshell was to be unsupervised, the district court ordered that respondent and Meshell engage in activities for Meshell's benefit and enjoyment, respondent not let Meshell out of her sight during the visitation, no male companions be allowed to accompany them, and DSS exercise its discretion to terminate the visits “if any conditions are violated, or [DSS] has grounds to believe that the visits are no longer in the child's best interest.” Respondent did not appeal from the neglect adjudication.
    Pursuant to a motion by DSS for a permanency planning hearing, the district court held a hearing on 29 January 2001. At that point, the court took the matter “under advisement” and stated that an order would be entered after the court had made a thorough review of the evidence and come to a decision with which it was comfortable. DSS made a motion and argued at a hearing on 12 March 2001 that the evidence be re-opened. The court granted the motion and more evidence was received on 12 March, 9 April and 23 April 2001. Although it is apparent from the transcript that DSS and the Guardian ad Litem (“GAL”) submitted updated Court Summaries for the 29 January hearing, those summaries are not included in the record on appeal. At the hearings, testimony by various parties revealed that respondent had completed every task DSS requested of her, including finding a new apartment, and had come to every visitation appointment allowed with her children. It was also noted that, in addition to attending parenting classes twice and participating inother counseling and information sessions, respondent had pursued and received certification as a Certified Nursing Assistant prior to the 10 April neglect hearing, gotten a job a week later, and retained that job through the permanency planning hearings the next year. There was also uncontradicted testimony that respondent had no criminal or drug abuse history, had a valid driver's license and car, and had paid her child support regularly.
    Despite respondent's actions and improvements in her situation, DSS social workers Amy Wall and Sonya Freeman, as well as GAL Kathy Lusk, testified that they had reservations about respondent's ability to keep Sheila and Meshell safe and to supervise them properly. At the 29 January hearing, Wall testified that DSS's major concern was respondent's inability to stay away or keep Sheila and Meshell away from Carl or Dwayne Souther. Testimony indicated these reservations were based on respondent's continued occasional contact with her son, her inability to control the actions of her estranged husband, and their perception that respondent had not acquired the proper supervisory skills from the parenting classes she attended. Respondent testified that she understood that she was to keep Sheila and Meshell away from both Carl and Dwayne. There was also evidence that on the one occasion that she and Meshell saw Dwayne at a store when they were on unsupervised visitation she told him he had to leave. Respondent informed the social workers of this contact after it happened and apparently regularly told them when she was going to see Dwayne for reasons such as help in fixing her car. Testimony indicated thatCarl had moved to Burlington, and respondent stated that as soon as she could afford it she would divorce him. Carl did not attend the permanency planning hearings. Other facts and testimony relevant to this appeal are set out in the opinion below.


    On appeal, respondent argues the district court committed reversible error in (1) entering the permanency planning order because the order was inconsistent with the policies of the juvenile code and not supported by the evidence, (2) entering the order because it failed to comply with the provisions of G.S. §§ 7B-907 and 7B-507, (3) admitting certain prejudicial hearsay statements, (4) failing to record the trial court's in-chambers conversation with Sheila Souther, and (5) entering an order that failed to consider evidence presented at the 29 January hearing. Having considered her arguments carefully, we affirm the order of the district court.
    Respondent first asserts that the district court's order violates the policies behind the juvenile code and is not supported by the evidence. The policies to be implemented by the North Carolina statutes on child neglect are outlined in G.S. § 7B-100:
            This Subchapter shall be interpreted and construed so as to implement the following purposes and policies: (1)     To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;
        (2)     To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths andweaknesses of the family.
        (3)     To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles' needs for safety, continuity, and permanence; and
        (4)     To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.

N.C. Gen. Stat. § 7B-100 (2002). G.S. § 7B-907(a) dictates that a “permanency planning hearing” must be held within twelve months of a child's removal from parental custody on the basis of neglect to “develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time.” N.C. Gen. Stat. § 7B-907(a) (2002). If, as a result of the review, the child is not returned to parental custody, the court must make written findings on certain statutory criteria where relevant, including “[w]hether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home.” N.C. Gen. Stat. § 7B- 907(b)(1) (2002). Furthermore, in any review order where the court orders DSS to retain custody:
        the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that: (1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time; . . .

N.C. Gen. Stat. § 7B-507(b) (2002). In evaluating a child neglectcase in a permanency planning review, although the initial adjudication of neglect is relevant, the trial court must also consider evidence of changed circumstances. In re Eckard, 148 N.C. App. 541, 559 S.E.2d 233, disc. review denied, 356 N.C. 163, 568 S.E.2d 192 (2002). Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law. See id. at 544, 559 S.E.2d at 235 (citing In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991)).
    In its order, the district court made the key findings that:
        15. It is always difficult to Order that reunification efforts cease and that the Permanent Plan be changed to Termination of Parental Rights, particularly when a parent sincerely loves a child. The best interest of the children in this case, however, must take precedence.                        
. . .

        18. It is not possible for the juveniles to be returned to the home of either biological parent immediately or within the next six (6) months.

Although the court did not state specifically within these two finding paragraphs why it considered reunification impossible within the next six months or that continuation of reasonable efforts at reunification would be “futile,” as pointed out by respondent's second argument, the court's other findings are sufficient to comply with the statutory requirements. The issue, then, is whether the findings are supported by the evidence.
    The district court's first six findings relate to the initial circumstances of the case, including the family history of sexualabuse, the removal of Sheila and Meshell from the home, and respondent's ineffective supervision at that time. With respect to these past events, the court found “that the mother's actions have demonstrated a troubling lack of judgment in situations involving her children.” Although supported by competent evidence, respondent asserts these findings deal only with the past and do not reflect consideration of changes in circumstances. In re Eckard, supra. Although it is true that they do not reflect changed circumstances, the findings provide background information for the rest of the order.
    Next, in assessing whether respondent had complied with its order to “participate in counseling and demonstrate that she understands the nature of the problems that exist with regard to her supervision of her children and the needs of the children,” the district court found that although respondent had completed parenting classes:
        [i]t does not appear, . . ., that she has shown meaningful progress in being able to appropriately protect and care for the children or the ability to apply what she has heard. Although she has expressed a general understanding of issues raised by DSS workers and others, she has not provided specifics relating to how she would act in certain situations. While her psychological evaluation states that she has adequate intellectual skills for parenting, and that she performed well in a clinical setting in applying knowledge and judgement in practical situations, this was not corroborated in a real world setting with her children. While the mother has not been given an opportunity to demonstrate such skills in her home, she has been given opportunities to demonstrate understanding and application of knowledge in supervised visits with her children.
In other findings, the court also stated that Meshell was very nervous before and after appointments with respondent, that “she stuck her fingers in her mouth and began wringing her hands” in anticipation of a visit in April 2001, and that Meshell's foster mother had more trouble with her before and after the visits. The court noted that DSS workers perceived that respondent treated Meshell as more of a “play toy” than a child with needs of her own, tried to conform to a rigid agenda during visits and got frustrated when Meshell did not cooperate, and was slow to respond to their suggestions for interaction. The court did note that respondent obviously loves Meshell and independently attended a support group for parents of sexually abused children. The court's other finding with respect to respondent was that she tended to become “visibly frustrated” when DSS workers tried to get information from her about what she had learned in parenting classes and when she was testifying at the hearing.
    A close review of the transcript and record on appeal reveals that there is competent evidence to support these findings. Although testimony indicated that respondent had twice attended parenting classes, adolescent classes, a support group, and was undergoing dialectic behavior therapy at the time of her testimony at the 29 January hearing, the criticisms and lack of confidence expressed by DSS workers and the GAL support the trial court's findings. Specifically, case worker Sonya Freeman testified at the 12 March hearing that she and co-worker Amy Wall had met with respondent three times in order to ascertain what progress she hadmade and to assess whether she could demonstrate her improvement in understanding and ability to supervise her children. Although the first meeting largely dealt with respondent's progress in obtaining new housing and independence, Freeman described the second meeting as follows:
            The second time that she came in was to kind of get a feel for therapy sessions through New River, a group session, being in parenting sessions as well as being involved with parents of abused children. Throughout all of those things and topics that we talked about, she could not give back what we were looking for. For instance, having a 4-year- old, if you've got to discipline, if you've got to discipline her and at the same time you've got a 13-year-old, is the discipline the same or is it different? Tell me about Magic 1, 2, 3 versus a noncompliant teenager who says “I'm going to do something” versus “No, I'm not going to do it,” she starts being belligerent, resentful, and all this, can you do it all at the same time? And [respondent] could not tell us that she could, which made us really wary and really concerned.

Freeman testified that rather than indicating her understanding of the questions about supervision and discipline or answering, respondent would become frustrated and cry. In addition, when asked about her understanding of the severity of the case and the effect of a cycle of abuse on a family, respondent answered, “I understand that and I tried to prevent it.” Yet, when next asked what steps she should have taken to prevent the abuse and what steps she would take in the future, respondent could not answer satisfactorily. GAL Lusk also expressed reservations about respondent's ability to care for her children, basing this opinion on a perceived delay by respondent in moving to her own apartmentand uncertainty as to whether respondent could manage on her own if her children were returned to her. In addition, Lusk testified that she questioned respondent about what she had learned in the parenting classes and posed scenarios to her, most recently in December 2000, but respondent had no answer. Both Lusk and Freeman also testified that respondent seemed much more interested in winning back custody of Meshell than Sheila.
    While the evidence in support of the district court's findings as to respondent's failure to demonstrate improved understanding and skills for dealing with Sheila and Meshell is certainly not overwhelming and there is evidence to the contrary, we are constrained to uphold those findings on appeal. In re Isenhour, supra. In addition, there is evidence in the record to support the findings with respect to Meshell's anxiety around visits with her mother. The court also found that this anxiety was related to a fear of her brother Dwayne that Meshell seemed to associate with her mother. This finding was supported by the evidence and, in fact, at the 9 April hearing Freeman testified that the anxiety had recently reached a level such that Meshell's counselor Arlena Creasman advised that continued visitation with respondent was not healthy, thus also providing support for the trial court's central findings regarding whether reunification was possible or in the best interests of Meshell.
    Other findings by the court to which respondent assigns error include the improvement in behavior and outlook both children have experienced in foster care. Where the issue before the districtcourt is whether a parent can provide adequately for her children or is making reasonable progress toward that goal, consideration of the difference in conditions in foster care and parental custody is improper. See In re Nesbitt, 147 N.C. App. 349, 555 S.E.2d 659 (2001). In addition, pursuant to an in-chambers conversation with Sheila in the presence of counsel for petitioner and respondent, the trial court found that:
            Sheila is adamantly opposed to being placed back in her mother's home, even though she loves her mother. Sheila's stated goal is to be adopted within one (1) year. She does not feel that her mother can adequately protect her or Meshell. She states that her mother is unable to provide appropriate guidance. Sheila is hurt because her mother has a stronger desire to have Meshell returned to her than for Sheila to be returned. The Court notes that Sheila was well spoken and polite in her testimony.

As noted above, respondent has challenged the consideration of Sheila's testimony based on the fact that it was unrecorded, and thus she is deprived of her due process right to meaningful appellate review. Although respondent did not object at the hearing to the lack of record, she asserts on appeal that the district court's admission and consideration of the testimony was plain error. We note, however, that plain error is a limited appellate doctrine applicable only to criminal cases, and this Court has expressly declined to extend the doctrine to child custody cases. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996) (custody case between parents and grandparents); N.C.R. App. P. 10(c)(4) (2002). Respondent's failure to object to the unrecorded testimony by Sheila, not any error by the districtcourt, led to respondent's asserted inability to obtain meaningful appellate review of whether the testimony supported the finding. We also note that much of the substance of the finding was also contained in testimony by GAL Lusk concerning her conversations with Sheila.
    Although it is impossible for this Court to compare the district court's finding as to Sheila's opinion with her testimony due to its absence from the record, it is clear from the order that this finding is not the sole basis of the district court's decision. The same can be said of the findings regarding Sheila and Meshell's improvements in foster care. In fact, with these findings omitted from consideration, the district court's other findings are still adequate to support its findings on cessation of reunification and initiation of TPR.
    Thus, we hold that the district court's findings that respondent has failed to demonstrate the necessary improvement in parenting skills are supported by competent evidence. These findings, in turn, serve to justify the court's findings on the impossibility of reunification within six months and its decision to allow DSS to cease reunification efforts as required under G.S. §§ 7B-507 and 7B-907. Although it is clear that respondent has made improvement, due to the evidence of continued deficiencies in parenting skills, we cannot hold that the district court's findings or order violate the policies underlying the juvenile code. N.C. Gen. Stat. § 7B-100 (2002).
    Respondent's remaining arguments are also without merit. Sheasserts that the district court erred in admitting Freeman's testimony that Meshell had asked “Will you please have me a new mommy?” because it was impermissible hearsay and prejudicial. Respondent also contends the district court erred in admitting double hearsay testimony by Lusk to the effect that Sheila told her that one of respondent's companions at the March 12 hearing made a hostile gesture towards Sheila that day. However, dispositional hearings in neglect proceedings, of which a permanency planning review is one, “may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile.” N.C. Gen. Stat. § 7B-901 (2002) (emphasis added). Therefore, the formal rules of evidence do not apply. Moreover, it appears from a review of the district court's order that this testimony did not factor into its decision at all.
    Respondent also argues that the district court erred in failing to consider evidence from the 29 January hearing in making its decision. Respondent bases this contention on the fact that the first paragraph of the order omits that date from the list of dates on which the court heard evidence in this matter and on the apparent absence of consideration of respondent's testimony, which occurred at the 29 January hearing. This Court is inclined to believe that the omission of the 29 January date from the first paragraph of the order was a typographical error or accidental omission that does not signify that the trial court failed to consider the evidence from the first permanency planning hearing. Several of the findings in the order are supported by testimonyadmitted during that hearing, even if also supported by testimony at other hearings. In addition, the court also found in conjunction with its finding that respondent exhibited frustration and cried when DSS workers tried to discuss parenting skills with her that the trial court “saw some of these reaction [sic] when the mother was on the witness stand.” It is unlikely that the trial court would have made observations as to respondent's behavior at the 29 January hearing yet not remembered or considered her testimony.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***