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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.L., A.L.
Filed: 19 October 2004
1. Appeal and Error_notice of appeal_failure of service_waived
DSS's participation in respondents' appeal waived any objection to failure of service of
the notice of appeal. DSS does not argue that it never received service of appellate entries, the
notice of the appointment of appellate counsel, or the proposed record on appeal, and does not
contend that it was prejudiced by any failure by respondents to properly serve the notice of
2. Child Abuse and Neglect_neglected juvenile_failure to appoint guardian ad litem
The failure to appoint a guardian for the mother in a neglected juvenile proceeding was
not error where the petitions did not allege that the children were dependant juveniles and did
not assert that the mother could not provide proper care as the result of a debilitating condition.
N.C.G.S. § 7B-602(b)(1).
3. Child Abuse and Neglect
_neglected juveniles--permanency planning hearing_not
The trial court erred by not holding a permanency planning hearing within the statutory
time limit ( one year from the initial order), but the matter was reversed and remanded on other
grounds. N.C.G.S. § 7B-907(a).
4. Child Abuse and Neglect
_neglected juveniles--permanency planning
order_findings_not supported by evidence
A permanency planning order was reversed and remanded where the court's findings
were not supported by the evidence. Respondent, acting pro se, testified but did not address the
permanency plan, and DSS offered only statements by its attorney (which are not evidence) and
a DSS summary. Adopting the DSS summary was not sufficient to support the findings.
5. Child Abuse and Neglect
_neglected juveniles--permanency planning hearing_tape
of first hearing destroyed
A father's constitutional rights were not violated by the destruction of tapes recorded at a
prior hearing concerning his allegedly neglected children. Although the father contended that
the second hearing was a continuation of the first and that evidence presented at the first was
crucial to the permanency planning order, the permanency planning order was not reached until
the second hearing. The father did not assign error or enter notice of appeal to the first order,
and did not present a narration of the evidence or identify portions of the record to support his
6. Parent and Child_neglected juveniles_permanency planning
A permanency planning order was not supported by the evidence where the court made
no findings about the only evidence presented: the father's testimony that he had completed
parenting classes, was paying child support, and had attempted to maintain visits with the child.
Appeals by respondent mother and respondent father from order
entered 7 October 2002 by Judge Theodore S. Royster, Jr., in
Iredell County District Court. Heard in the Court of Appeals 1
Thomas R. Young, for petitioner-appellee Iredell County
Department of Social Services.
Winifred H. Dillon, for respondent mother-appellant.
M. Victoria Jayne, for respondent father-appellant.
Shevalo Laney (Laney) and Edward Dewight Little (Little)
(collectively, respondents) appeal from the trial court's order
entered following a permanency planning hearing. We reverse the
trial court's order as it applies to Laney's appeal, and reverse
and remand as the order applies to Little's appeal.
On 23 July 2001, Iredell County Department of Social Services
(DSS) filed a juvenile petition alleging that D.L. and A.L.
(collectively, the children) were neglected juveniles. Laney,
mother of both minor children, and Little, father of D.L. and
caretaker of A.L., were named respondents. The children were
placed with their maternal grandfather, Edsel Laney
(grandfather), on 26 July 2001. On 18 October 2001, bothchildren were adjudicated to be neglected children. The trial
court approved the children's placement with their grandfather.
On 2 March 2002, the trial court entered an order which
relieved DSS of further reunification efforts with their parents
and appointed their grandfather to serve as guardian. The trial
court ordered visitation for respondents to take place at the
grandfather's discretion. On 2 May 2002, respondents filed Motions
in the Cause requesting return of both children to the custody of
the mother, to reinstate reasonable efforts towards reunification,
and requested a new psychological evaluation. Following a hearing
on 17 May 2002, the trial court denied respondents' motions in
part, but allowed Little's request for visitation and Laney's
request for a new psychological evaluation.
On 13 September 2002, the trial court conducted a permanency
planning hearing. The trial court announced its decision in open
court to continue guardianship of the children with the grandfather
and reaffirmed its decision to relieve DSS of reunification
efforts. On 23 September 2002, respondents, acting pro se, filed
written notice of appeal and attached a Certificate of Service
certifying that service of the foregoing Notice of Appeal was made
upon the respective party by: Hand Delivery. Both respondents
entered a separate Notice of Appeal and each signed their own
Certificate of Service. Neither Laney's nor Little's Certificate
of Service indicated the respective party or identified who had
been served by hand delivery. The trial court entered judgment
on 7 October 2002. DSS moves this Court to dismiss respondents' appeal for
failure to timely file or properly serve Notice of Appeal.
The threshold issue on appeal is whether respondents properly
filed and served Notice of Appeal on DSS.
The issues presented by Laney's appeal are whether the trial
court erred by: (1) failing to appoint a guardian ad litem for
her; (2) failing to hold a permanency planning hearing within
twelve months of the original order as required by N.C. Gen. Stat.
§ 7B-907; and (3) failing to allow her to present evidence at the
permanency planning hearing.
The issues presented by Little's appeal are whether: (1) his
constitutional and due process rights were violated by the
destruction of tape recordings for the hearing held 17 May 2002;
(2) evidence presented at the hearing on 13 September 2002 was
sufficient to support the trial court's order for a permanent plan
of guardianship for the minor children; and (3) Little received a
fair permanency planning hearing.
III. Motion to Dismiss
 In a verified motion filed with this Court, DSS contends
respondents failed to serve either DSS or its counsel with the
Notices of Appeal filed by respondents. Rule 3 of our North
Carolina Rules of Appellate Procedure allows a party to appeal from
a district court order rendered in a civil action by: (1) filing
notice of appeal with the Clerk of Superior Court; and (2) serving
copies thereof upon all other parties. N.C.R. App. P. 3(a) (2004). In civil actions, a party must file and serve notice of appeal
within thirty days after entry of judgment. N.C.R. App. P. 3(c)
Rule 3(b), however, provides that appeals in juvenile matters
shall be taken in the time and manner set forth in N.C. Gen.
Stat. § 7B-1001. N.C.R. App. P. 3(b) (2004). Pursuant to N.C.
Gen. Stat. § 7B-1001:
Notice of appeal shall be given in writing
within 10 days after entry of the order. . . .
A final order shall include:
. . . .
(3) Any order of disposition after an
adjudication that a juvenile is abused,
neglected, or dependent
. . . .
Although this statute speaks to the time and manner of appeal, the
statute is devoid of any reference to proper service of such
notice. Where the relevant juvenile statute is silent, the North
Carolina Rules of Civil Procedure govern. In re Brown, 141 N.C.
App. 550, 551, 539 S.E.2d 366, 368 (2000), cert. denied, 353 N.C.
374, 547 S.E.2d 809 (2001). Rule 5(a) of the North Carolina Rules
of Civil Procedure provides that every written notice . . . shall
be served upon each of the parties . . . . N.C. Gen. Stat. § 1A-
1, Rule 5(a) (2003). Rule 5 provides that such service can be made
by hand delivery if, at the time of filing the written notice, a
certificate is also filed certifying the paper was served in the
manner prescribed by this rule . . . . N.C. Gen. Stat. § 1A-1,
Rule 5(b) and (d) (2003). Here, respondents filed a written Certificate of Service
indicating that notice of appeal had been served upon the
respective party by Hand delivery. DSS argues that
respondents' failure to indicate the name or address of the
respective party served is a jurisdictional defect requiring
dismissal of the appeal pursuant to N.C.R. App. P. 26(c) (2004).
We disagree. Our Supreme Court held, a party upon whom service of
notice of appeal is required may waive the failure of service by
not raising the issue by motion or otherwise and by participating
without objection in the appeal . . . . Hale v. Afro-American
Arts International, 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993).
Respondents filed Notices of Appeal on 23 September 2002. The
Appellate Entries form was filed with the trial court on 15 May
2003 and indicated DSS's attorney, address, and telephone number.
The clerk of court was directed to transmit a copy of these
Appellate Entries to counsel for all parties. Further, on 20 June
2003, Notice of Appointment of Appellate Counsel was mailed to all
other parties on the Appellate Entries . . . . A proposed Record
on Appeal was served on DSS on 6 October 2003. On 7 November 2003,
DSS's attorney wrote a letter to respondents' attorneys that
referenced Supplement to Record on Appeal and requested several
documents be added to the record on appeal. The letter stated,
If you will include the material enclosed in an amended record .
. . I will be glad to sign the stipulation of settlement
previously tendered. DSS's counsel was the same individual
identified on the Appellate Entries form filed 15 May 2003. DSSdid not object to service of notice of appeal until 18 November
2003 when it filed its Motion to Dismiss this appeal.
DSS does not contend it was prejudiced by any failure of
respondents to properly serve notice of appeal. In its motion, DSS
asserts it became aware of Respondent/Appellants' notice of appeal
through communications with the clerk of court's office on a date
several days subsequent and removed from [the date notice of appeal
was filed.] DSS does not argue it never received service of: (1)
the Appellate Entries filed 15 May 2003; (2) the Notice of
Appointment of Appellate Counsel filed 20 June 2003; or (3) the
proposed Record on Appeal filed 6 October 2003. By participating
in respondents' appeal prior to raising the issue by motion
waived any objection to failure of service. Hale, 335 N.C. at 232,
436 S.E.2d at 589. DSS's Motion to Dismiss is denied.
IV. Guardian Ad Litem
 Laney argues the trial court erred by failing to appoint
a guardian ad litem after she was diagnosed with a schizo-
affective disorder during a psychological evaluation of the
family. We disagree.
The trial court shall appoint a guardian ad litem to represent
Where it is alleged that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101 in that the parent is incapable as the
result of substance abuse, mental retardation,
mental illness . . . or any other similar
cause or condition of providing for the proper
care and supervision of the juvenile . . . .
N.C. Gen. Stat. § 7B-602(b)(1) (2003). This statute is narrow in
scope and does not require the appointment of a guardian ad litem
in every case where dependency is alleged . . . . In re H.W., 163
N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. rev. denied, 358
N.C. 543, 599 S.E.2d 46 (2004). The specific language of the
statute mandates the appointment of a guardian ad litem only if:
(1) the petition specifically alleges dependency; and (2) the
majority of the dependency allegations tend to show that a parent
or guardian is incapable as the result of some debilitating
condition listed in the statute of providing for the proper care
and supervision of his or her child. Id. (citing In re Estes, 157
N.C. App. 513, 518, 579 S.E.2d 496, 499, disc. rev. denied, 357
N.C. 459, 585 S.E.2d 390 (2003)). In the case of In re H.W., this
Court affirmed the trial court's judgment and held N.C. Gen. Stat.
§ 7B-602(b)(1) did not require the appointment, sua sponte,
guardian ad litem for the respondent-father because the petition
did not allege incapacity for the respondent-father. 163 N.C. App.
at 447, 594 S.E.2d at 216.
Here, two separate juvenile petitions were originally filed
for each child and alleged, the juvenile is a NEGLECTED JUVENILE,
in that the juvenile: (1) does not receive proper care,
supervision, or discipline from the juvenile's parent, guardian, .
. . [and] lives in an environment injurious to the juvenile's
welfare. The petitions at bar did not allege the children were
dependant juvenile[s] and did not assert Laney was incapable asthe result of some debilitating condition . . . of providing for
the proper care of the children. Id. at 447, 594 S.E.2d at 216
As no allegations of dependency were before the trial court,
it was not required to appoint, sua sponte, a guardian ad litem for
Laney. This assignment of error is overruled.
V. Timeliness of Permanency Planning Hearing
 Laney contends the trial court erred by failing to conduct
a permanency planning hearing within twelve months of the date of
the original order.
N.C. Gen. Stat. § 7B-907(a) (2003) states:
In any case where custody is removed from a
parent, guardian, custodian, or caretaker, the
judge shall conduct a review hearing
designated as a permanency planning hearing
within 12 months after the date of the initial
order removing custody, and the hearing may be
combined, if appropriate, with a review
hearing required by G.S. 7B-906.
The purpose of the hearing is to 'develop a plan to achieve a
safe, permanent home for the juvenile within a reasonable period of
time.' In re Dula, 143 N.C. App. 16, 18, 544 S.E.2d 591, 593
(quoting N.C. Gen. Stat. § 7B-907(a))
, aff'd per curiam, 354 N.C.
356, 554 S.E.2d 336 (2001).
Here, DSS obtained a nonsecure custody order for the children
on 26 July 2001. On 28 February 2002, the court concluded a review
hearing, appointed the children's grandfather as guardian, and
scheduled a permanency planning hearing for 4 April 2002. No
hearing occurred in April, and it was rescheduled for 17 May 2002.
Prior to the hearing in May, respondents filed separate motions in
the cause. Laney moved: (1) for change of disposition pendingappeal; (2) to restore placement of the minor children with the
respondent mother; (3) to continue reasonable efforts; and (4)
for a new psychological evaluation. Little moved for: (1)
[D.L. to] be returned to his custody . . . or in the alternative,
(2) that the Court order that [DSS] re-start reunification efforts
. . . . Following a hearing on the motions on 17 May 2002, the
trial court entered an order on 2 June 2002 that acknowledged a
permanency planning hearing was initially schedule [sic] for
today's review . . . and ruled instead on the respondents'
motions. The trial court again rescheduled the permanency planning
hearing for four days later on 6 June 2002.
The permanency planning hearing was again rescheduled. On 23
August 2002, Laney's attorney sent a facsimile to the presiding
judge, with copies to Little's and DSS's attorneys, informing the
This permanency planning hearing was continued
from 5/2, 5/16, 6/6, and 7/18 because it
wasn't reached. . . . My client is very
exasperated because of the delays, and
requested that I set it on for 8/29, which I
attempted to do. However, the clerk informs
me that there are 32 cases on for that day,
and that Friday already has something
scheduled. . . . My client has asked me to
see if the court could consider hearing it
sooner than 9/12.
A hearing was finally held 13 September 2002, and an order was
entered 7 October 2002.
According to N.C. Gen. Stat. § 7B-907(a), a permanency
planning hearing was required to be conducted prior to 26 July
2002, no later than twelve months following entry of the initialnonsecure custody order on 26 July 2001. The permanency planning
hearing was originally scheduled for 17 May 2002, and the parties
appeared before the court on that day. Respondents, however, had
filed motions in the cause several days prior to hearing, which the
trial court, in its discretion, chose to initially address prior to
conducting a permanency planning hearing.
The trial court erred by failing to conduct a permanency
planning hearing within the time required under N.C. Gen. Stat. §
light of our holding below, the trial court's
failure to conduct a timely permanency planning hearing is
VI. Evidence at Hearing
 Laney contends the trial court erred by failing to allow
her to present evidence at the permanency planning hearing. We
Our Supreme Court has held that in child custody matters:
[w]henever the trial court is determining the
best interest of a child, any evidence
is competent and relevant to a showing of the
best interest of that child must be heard and
considered by the trial court, subject to the
discretionary powers of the trial court to
exclude cumulative testimony. Without hearing
and considering such evidence, the trial court
cannot make an informed and intelligent
decision concerning the best interest of the
In re Shue
, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984) (emphasis
supplied). In a permanency planning hearing, the trial court may
exclude evidence that is not relevant, reliable, and necessary todetermine the needs of the juvenile and the most appropriate
disposition. N.C. Gen. Stat. § 7B-907(b) (2003).
Here, the transcript shows the trial court allowed Laney,
acting pro se, to speak at the hearing and afforded her an
opportunity to be heard. She was limited, however, to matters
regarding the permanency plan. The trial court stated:
I'm going to limit you as to the permanency
plan. I will not get into matters that have
already been adjudicated and an order that has
been entered as to that. I want you to
understand that. And if you don't abide by my
ruling to limit as to this permanency plan,
then I'm not going to let you just ramble and
go into things that have already been
adjudicated. And with that caveat on my part,
I'll hear from you as to whether you want to
be sworn and put on sworn testimony, I'll be
glad to hear from you.
Laney took the witness stand and was sworn.
Laney received an
opportunity to present evidence and availed herself of this
opportunity by presenting her arguments.
Although she took the stand, a review of the transcript
indicates she offered no testimony regarding the permanency plan
and instead attempted to offer arguments regarding local rules,
the Bible, and her various attorneys. The trial court did not
allow Laney to testify regarding legal advice she had received and
certain verses from the Bible that she wished to present.
The transcript indicates DSS presented no testimony into
other than the DSS attorney's statements. Statements by
an attorney are not considered evidence. State v. Haislip, 79 N.C.
App. 656, 658, 339 S.E.2d 832, 834 (1986)
(holding statement bydefendant's counsel . . . is not evidence) (citing State v.
Albert, 312 N.C. 567, 579, 324 S.E.2d 233, 240-41 (1985)).
The only evidence offered by DSS was a summary prepared on
11 September 2002. By stating a single evidentiary fact and
adopting DSS and guardian ad litem reports, the trial court's
findings are not 'specific ultimate facts . . . sufficient for this
Court to determine that the judgment is adequately supported by
In re Harton, 156 N.C. App. 655, 660, 577
S.E.2d 334, 337 (2003)
(quoting In re Anderson, 151 N.C. App. 94,
97, 564 S.E.2d 599, 602 (2002)); see also In re Shue, 311 N.C. at
597, 319 S.E.2d at 574
(Without hearing and considering such
evidence, the trial court cannot make an informed and intelligent
decision concerning the best interest of the child.).
adoption of the DSS summary into the Order is insufficient to
constitute competent evidence to support the trial court's findings
As no evidence was presented by either DSS or Laney regarding
the permanency plan, the trial court's findings of fact are
unsupported. Without any evidence to support its findings, the
trial court erred in its conclusions of law. We reverse the
permanency plan order as it relates to Laney and remand for a new
permanency planning hearing where the parties may offer competent,
material, and relevant evidence
VII. Destruction of Tapes
 We now consider that portion of the appeal regarding
Little's assignments of error. First, Little argues hisconstitutional and due process rights were violated by the
destruction of tapes recorded during the 17 May 2002 hearing. He
asserts evidence presented during that hearing is crucial because
the 13 September 2002 hearing was a continuation of the
permanency planning hearing conducted 17 May 2002. We disagree.
DSS's counsel, at the beginning of the hearing, stated, the
matter is on basically for continuation of a permanency planning
hearing. The initial permanency planning hearing was conducted by
Judge Gullette on 5-17 . . . . Later, however, it was clarified
that a permanency planning hearing was never conducted during the
17 May 2002 session. During the 13 September 2002 hearing, DSS's
counsel clarified his earlier characterization of the hearing and
informed the trial court:
[On] February 28, 2002 . . . Miss Laney was
here as was Mr. Little by their first set of
counsel; and at that time the Court made
determinations with regard to _ with regard to
the 7B _ basically the 7B and 907 analysis.
That was actually a review hearing. That was
followed up by what we were supposed to have
as a permanency planning hearing. The first
of that occurred on 5-17. So the basic thing
I have to say is that although the plan itself
was changed, we were trying to follow that up
with necessary permanency planning hearing
within the period of time allotted by statute.
We did get partly away into doing that, and
they - both Respondent Mother and Respondent
Father through their counsel had various
issues raised with regard to permanency
planning. But we didn't actually have _ this
hearing today is really the first opportunity
we've actually had since that initial review
which set the permanency plan in place. It's
the first time we had today to actually put
that in place as a permanent plan under the
statute. . . .
Our review of the order entered following the 17 May 2002 hearing
indicates that although [a] permanency planning hearing was
initially scheduled for today's review pursuant to N.C. Gen Stat.
§ 7B-907, the hearing was not conducted. The trial court's order
stated, A permanency planning hearing shall be conducted 6/6/02.
(Emphasis supplied). The order indicates no permanency planning
hearing was begun or conducted. Little's brief concedes no
previous order is deemed a permanency planning order. The record
indicates the 13 September 2002 hearing was the first instance the
issue of a permanency planning order was reached.
Little neither assigned error to nor entered notice of appeal
on the 17 May 2002 order. Further, he has not attempted to present
a narration of the evidence or identify portions of the record to
support his argument. See In re Clark, 159 N.C. App. 75, 83, 582
S.E.2d 657, 662 (2003)
(holding no error in destruction of tapes
where respondent: (1) made no attempt to use N.C.R. App. P.
9(c)(1) to provide a narration of the evidence in order to reflect
the true sense of the evidence received to the extent the record
does not do so; and (2) points to nothing specific in the record
to support her argument). This assignment of error is overruled.
VIII. Sufficiency of the Evidence
 Little next argues the permanency planning order is not
supported by sufficient evidence. We agree.
As discussed above, DSS presented no competent evidence to
support any of the findings. Further, as in the case of In re
, the trial court here made no statutory findings thatreunification efforts would be futile or that the health and safety
of the children were inconsistent with such efforts as required by
section 7B-507(b). 158 N.C. App. 473, 480, 581 S.E.2d 134, 138
The findings of fact are insufficient to support the
conclusions of law.
Little testified he had completed parenting classes, was
paying child support, and had attempted to maintain visits with the
children. The trial court made no findings regarding this
The permanency planning order as it relates to Little
is reversed and remanded for further findings of fact and
conclusions of law in light of the only evidence presented, which
was Little's testimony.
Little argues he did not receive a fair permanency planning
hearing. His brief fails to offer any argument or authority in
support of his assertion.
He has abandoned this assignment of
error pursuant to N.C.R. App. P. 28(b)(6) (2004).
The trial court did not err in failing to appoint, sua sponte
a guardian ad litem
for Laney. The trial court erred in failing to
conduct a permanency planning hearing within the time required by
N.C. Gen. Stat. § 7B-907. However, in light of our holding that
the trial court's order is reversed for lack of competent evidence
to support the findings of fact, this error is harmless.
Little's constitutional rights were not violated by the
destruction of the tape recordings of the 17 May 2002 hearing. The
trial court erred in making findings of fact that are not supportedby competent evidence and in failing to make findings of fact
regarding Little's testimony. The order is reversed and remanded
for findings consistent with the evidence presented.
Reversed in part; Reversed and Remanded in part.
Judges HUDSON and BRYANT concur.
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