Appeal by respondent from order entered 22 March 2004 by Judge
C. Randy Pool in District Court, Rutherford County. Heard in the
Court of Appeals 14 June 2005.
No brief for petitioner-appellee, Rutherford County Department
of Social Services.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for Guardian ad Litem.
Leslie C. Rawls for respondent-appellant.
Respondent, the paternal aunt of C.E.L., appeals from a
permanency planning order placing custody and guardianship of
C.E.L. with C.E.L.'s maternal great-grandmother, M.R.O. C.E.L.'s
natural mother is deceased. C.E.L.'s natural father has not
participated in the proceedings regarding C.E.L.'s placement.
Respondent and her husband (R.E.H.) had obtained a temporary,
nonprejudicial custody order for C.E.L. pursuant to an action
brought under Chapter 50 of the North Carolina General Statutes
(Chapter 50). R.E.H. is not a party to this appeal.
The evidence at the permanency planning hearing tended to show
the following. C.E.L. was removed from respondent's home on 18January 2002. E.L.H., respondent's son, was also removed at that
time. The placement of E.L.H. is not at issue in this appeal.
Rutherford County Department of Social Services (DSS) visited
respondent's home and found that it was unsafe for C.E.L.:
There were chemicals and cleaning supplies
sitting out in the kitchen. There were two
propane tanks and loaded guns in the closet of
the living area. Various boxes of car parts,
pill bottles and junk were lying around. Also
found in the home were 5 grams of
methamphetamines. There were also plastic
Baggies and ties found with the
methamphetamines. Drugs and paraphernalia
were found on . . . a friend who was sleeping
in the bedroom. [The friend] claimed a
portion of the methamphetamines. There were
five pieces of aluminum foil beside the bed on
the nightstand in [respondent's and R.E.H.'s]
bedroom. All of these pieces were charred and
burned on the bottom. According to law
enforcement, this is one means of smoking
DSS completed a home study of respondent's home. DSS learned
that respondent was unemployed and had filed for Social Security
disability due to scoliosis and degenerative disc disease but had
not yet been approved. R.E.H. also suffered from back injuries and
received Social Security disability. DSS learned that respondent
was taking the following medications: Hydrocodone, MS Contin,
Methylphenidate, Alprazolam and Aygestin. In addition, R.E.H. was
taking Oxycontin, APAP/Oxycodone (Percocet), Prozac, Protonix and
Diazepam. Respondent and R.E.H. had also been the subjects of a
federal drug investigation.
In a review order filed 14 October 2002, the trial court
[Respondent and R.E.H.] may exerciseunsupervised visitation with [C.E.L. and
E.L.H.] on alternate weekends providing they
sign necessary releases so that DSS[,] the
[Guardian ad Litem] and this [c]ourt can
monitor their compliance with [m]ental
[h]ealth and substance abuse treatment, and
further providing that they submit upon
request to random drug screens.
In a permanency planning order entered 6 January 2004, nunc
pro tunc 15 April 2003, the trial court noted that respondent and
R.E.H. were involved in a Chapter 50 custody action with M.R.O.
The trial court rejected DSS's recommendation that guardianship be
immediately awarded to M.R.O.:
There is an ongoing Chapter 50 action with
regard to [C.E.L.'s] best interest in this
matter. Chapter 7B is not designed to
determine best interests as is Chapter 50.
[C.E.L.] appears to be happy and healthy where
she is. The [trial court] will defer to the
child custody action between [M.R.O.] and
[respondent and R.E.H.] to determine
[C.E.L.'s] best interests.
The trial court also ordered that: "[Respondent and R.E.H.] shall
aggressively comply with the conditions of the Family Services Case
Plan. Failure on the part of [respondent and R.E.H.] to do so may
result in termination of their parental rights."
In a permanency planning order entered 22 March 2004, which is
the subject of this appeal, the trial court made the following
findings of fact:
Following adjudication a case plan was
placed into effect which required [respondent
and R.E.H.] to attend parenting classes,
submit to drug and/or alcohol assessments and
follow up with any recommended treatment and
to submit to random tests for the detection of
controlled substances upon request of the
social worker. [Respondent and R.E.H.] did
attend parenting classes. They also obtainedassessments and have submitted to some random
In an order entered in the Chapter 50
child custody action . . . a motion and order
to show cause seeking to have [respondent and
R.E.H.] held in contempt was dismissed. The
order provided however, that [respondent and
R.E.H.] were to obtain a blood test to
determine their use, if any, of controlled
substances that same day. [Respondent and
R.E.H.] did not submit to such blood tests by
their own admission until 11 to 18 days later.
[Respondent and R.E.H.] have submitted to two
random drug tests requested by DSS.
[Respondent and R.E.H.] have been requested on
at least 14 occasions to submit to drug tests
by their social worker. Sickness of one or
both [respondent and R.E.H.], unavailability
or schedule conflicts have been offered as
excuses for [respondent's and R.E.H.'s]
failure to timely submit to random drug tests.
Both [respondent and R.E.H.] take by
prescription methadone and hydrocodone.
[Respondent and R.E.H.] are not in substantial
compliance with prior orders of this court
requiring they submit to random drug tests.
. . . .
The guardian ad litem repeatedly
requested [respondent and R.E.H.] to provide
appropriate releases so that she could have
access to their medical, mental health and
treatment records. Those requests were not
complied with. Instead [respondent] requested
that the guardian ad litem see the care
provider to obtain a release.
. . . .
. . . . During the time social worker
McKinney has had responsibility for [C.E.L.]
neither respondent [nor R.E.H.] signed any
release so that she could obtain access to
their medical records despite her repeated
requests and despite prior orders of this
court. (After the conclusion of all evidence
it was stipulated and agreed by the parties
that [r]espondent's Exhibit F could be
admitted into evidence. That exhibit is
purported [to be] a "Release for MedicalRecords" signed by [respondent] on September
26, 2002. However no box is checked to
indicate which, if any[,] records are to be
released. The doctor in question has never
released any records to the social worker. A
copy of Exhibit F was not provided to DSS, the
guardian ad litem, or [the trial] court until
after the conclusion of [the] hearing.)
The trial court thereafter awarded legal guardianship of C.E.L. to
Respondent assigns error to several of the trial court's
findings of fact. A trial court's findings of fact in a permanency
planning order are conclusive on appeal when they are supported by
competent evidence. In re Weiler
, 158 N.C. App. 473, 477, 581
S.E.2d 134, 137 (2003). If supported by some competent evidence,
the findings of fact are conclusive even if some evidence supports
findings to the contrary. In re B.P.
, ___ N.C. App. ___, ___, 612
S.E.2d 328, 331 (2005).
Respondent first assigns error to the trial court's finding of
fact that respondent had failed to comply with prior court orders
or make reasonable and timely progress to correct the conditions
that led to C.E.L.'s removal from respondent's home. Respondent
argues that there are no prior court orders that directly order
respondent to take any action with regard to C.E.L., but rather
only with regard to E.L.H. We disagree. In the 14 October 2002
review order that addresses both C.E.L. and E.L.H., the trial court
ordered that respondent submit to random drug screens. The trial
court, in a subsequent permanency planning order, also orderedrespondent to "aggressively comply with the conditions of the
Family Services Case Plan." Therefore, the trial court ordered
respondent to take action with regard to C.E.L., and not E.L.H.
We also find that competent evidence supports the trial
court's finding of fact. Social worker Anitra McKinney (McKinney)
testified that respondent submitted to only two of the fourteen
random drug screens that McKinney asked respondent to take. This
testimony is competent evidence that respondent failed to comply
with the trial court's orders. Furthermore, Louisa Davenport
(Davenport), C.E.L.'s guardian ad litem, testified that during
Davenport's visits to respondent's home, C.E.L.'s bedroom was
"piled high with boxes" and the home was in general disarray.
Davenport stated that there was little food in the cabinets and
there was no light in respondent's home. Davenport also testified
that "seventy-five to eighty-five percent" of the time that she
visited respondent's home, respondent was ill or sick in bed.
Thus, competent evidence supports the trial court's finding that
respondent had failed to make reasonable and timely progress to
correct the conditions that led to C.E.L.'s removal from
Respondent next assigns error to the trial court's finding of
fact that it was not possible for C.E.L. to be returned to
respondent's home within six months following the proceeding. The
trial court made the following finding:
The [trial] [c]ourt finds that it is not
possible for [C.E.L.] to be returned home
immediately or within the next six months to
the full legal custody of her former
custodians and that it is not in the best
interest of [C.E.L.] to return home because of
[respondent's and R.E.H.'s] inability to
provide for the care and supervision of
[C.E.L.] and [respondent's and R.E.H.'s]
failure to make reasonable progress in
correcting those conditions that led to the
removal of [C.E.L.] from [their] custody.
Respondent argues that there was not sufficient evidence to show
that respondent was physically incapable of caring for C.E.L.
Again, we disagree.
Respondent testified that she was thirty-eight years old, had
a degenerative disk disease and high blood pressure. She stated
that she was under the care of a physician and that she was on
methadone and hydrocodone. Respondent testified that she applied
for disability and had been appealing the decision for "almost a
year[.]" She testified that she had a ruptured disk at L1-S5 that
needed surgery, but she was unable to obtain the surgery because
she did not have insurance. Respondent gave the following
testimony on cross-examination:
Q Okay. Now, you're seeking disability
because of a disk problem or (inaudible)
problem or both?
A The disk problems because my doctor says
that I wouldn't be able to work the job
like I used to work because I was an
injection mold operator. And she said
that I would no longer be able to do that
type o[f] a job.
Q So did she say you're not (inaudible)?
A She said that it would be hard for me to
do any type of job that had a lot ofstanding, walking, or anything like that
due to my back.
Q The difficulties because of your back is
standing and walking (inaudible)?
A I lay down sometimes. But if [C.E.L.] is
there, I'm with her the whole time she's
Q So you can stand and walk when you're
with [C.E.L.], but you can't stand and
A I've not tried -- not tried to work since
then. I mean, I -- nobody will hire
anybody with back problems. They will
tell you if you have back problems they
won't hire you.
. . . .
A My medical problems do not keep me from
taking care of [C.E.L.].
Q Now, you're completely able to take care
of a four-year-old child?
A Yes, I am. I bathe her. I take her
outside. I play with her. I ride a
bicycle while she's riding her little
four-wheeler. I ride horses with her.
She has her own horse, everything.
Q You can ride horses with her?
Q With a degenerative disk disease?
A Yes, I do.
Q But you're incapable ---
A It hurts, but I do it.
Q But you're incapable of work?
A That's what my doctor said.
Q Did your doctor say [or] determine
whether you're not capable to work or didyou determine it?
A No. She told me that I'm not to work,
not to try to get a job. And I'm taking
a chance riding horses on paralyzing
myself. But if I can make [C.E.L.]
happy, I'll do it.
We find that respondent's testimony about her health problems is
competent evidence that supports the trial court's finding of fact
that respondent was incapable of properly caring for C.E.L.
Furthermore, we note that the trial court did not rely solely
on respondent's inability to care for C.E.L. when it found that it
was not possible for C.E.L. to return to respondent's home within
six months. Rather, the trial court also found that it would not
be possible to return C.E.L. to respondent's home within the next
six months because respondent had "failed to make reasonable
progress in correcting those conditions that led to removal of
[C.E.L.] from [respondent's] custody." As we have determined
above, the trial court correctly found that respondent had failed
to correct the conditions that led to C.E.L.'s removal. Therefore,
respondent's failure to correct the conditions leading to C.E.L.'s
removal provides independent support for the trial court's finding
that it was not possible for C.E.L. to return to respondent's home
within six months.
Respondent next assigns error to the trial court's finding of
fact that it was not in C.E.L.'s best interest to be returned to
respondent's home and that it was in C.E.L.'s best interest that
legal guardianship be awarded to M.R.O. In support of thisargument, respondent relies on the 6 January 2004, nunc pro tunc
April 2003, permanency planning order that deferred to the Chapter
50 child custody action. Respondent argues that since the trial
court had previously found that the pending Chapter 50 action was
the more appropriate venue to determine C.E.L.'s best interests,
the trial court was bound by res judicata
from changing its
position on the issue and awarding guardianship to M.R.O.
We first note that respondent has failed to support this
argument with any citations to legal authority, in violation of
Rule 28(b)(6) of our Rules of Appellate Procedure. N.C.R. App. P.
28(b)(6) ("The body of the argument [of an appellant's brief] shall
contain citations of the authorities upon which the appellant
relies." (emphasis added)). Violations of the Rules of Appellate
Procedure subject an appeal to dismissal. Viar v. N.C. Dep't of
, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005).
Furthermore, we find respondent's argument unpersuasive.
In order for the doctrine of res judicata
to apply, there must
be: "(1) a final judgment on the merits in an earlier lawsuit; (2)
identity of the cause of action in the prior suit and the later
suit; and (3) an identity of the parties or their privies in both
suits." Culler v. Hamlett
, 148 N.C. App. 389, 392, 559 S.E.2d 192,
194 (2002); see also State ex rel. Utilities Commission v.
, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989). When
an order "[leaves] the merits of the matter open for future
adjudication[,]" there has not been a final judgment on the merits.
Whitmire v. Savings & Loan Assoc.
, 23 N.C. App. 39, 42, 208 S.E.2d248, 250-51 (1974).
, the defendants argued that the order from
receivership proceedings was res judicata
as to all the claims at
controversy in an action for the recovery of loan proceeds. Id
41, 208 S.E.2d at 250. However, the order from the receivership
proceeds stated that loan proceeds could not be disbursed "'until
the controversy involved [was] adjudicated or terminated according
to law.'" Id
. at 42, 208 S.E.2d at 250. We held that, since the
order "did not purport to be an adjudication on the merits but
expressly left the merits of the matter open for future
adjudication[,]" the receivership order was not res judicata
the claims for loan proceeds. Id
. at 42, 208 S.E.2d at 250-51.
In this case, the 6 January 2004, nunc pro tunc
15 April 2003,
permanency planning order in which the trial court deferred to the
Chapter 50 action did not purport to be a final adjudication on the
merits. Rather, the order stated: "[DSS] should continue to make
reasonable efforts to prevent or eliminate the need for placement
of [C.E.L.]." It further ordered that: "[Respondent and R.E.H.]
and [DSS] shall aggressively comply with the conditions of the
Family Services Case Plan. Failure on the part of [respondent and
R.E.H.] to do so may result in termination of their parental
rights." This language indicates that the trial court intended to
leave the matter of C.E.L.'s placement for further review and
reconsideration. As a result, the order was not a final
adjudication on the merits and is not res judicata
as to the issues
in the 22 March 2004 permanency planning order. Furthermore, we find that giving the previous order res
effect would contravene the trial court's duty to consider
all relevant evidence, N.C. Gen. Stat. § 7B-907(b) (2003), and
"make specific findings as to the best plan of care to achieve a
safe, permanent home for the juvenile within a reasonable period of
time." N.C. Gen. Stat. § 7B-907(c) (2003); see also In re J.N.S.
165 N.C. App. 536, 538-39, 598 S.E.2d 649, 650-51 (2004). The
trial court cannot be bound by a previous permanency planning order
when changing needs and circumstances impact future permanency
plans. N.C. Gen. Stat. § 7B-907 provides for initial, as well as
subsequent, permanency planning hearings. This system thus
anticipates the evolving nature of the best interests of and
permanent plans for juveniles.
Respondent's last assignment of error contends that the trial
court erred in concluding as a matter of law that respondent was
unable to provide adequately for C.E.L.'s care and supervision.
Conclusions of law are upheld when they are supported by findings
of fact. In re Helms
, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676
(1997). We have already determined that the trial court's findings
of fact that (1) respondent failed to comply with court orders, (2)
respondent failed to make reasonable and timely progress, (3) it
was not possible for C.E.L. to return to respondent's home within
six months, and (4) it was in C.E.L.'s best interest for her not to
return to respondent's home but to live with M.R.O. are supported
by competent evidence. These findings of fact support theconclusion of law that respondent was unable to provide adequately
for C.E.L.'s care and supervision. This assignment of error is
Since the trial court's findings of fact are supported by
competent evidence, and the findings of fact support the
conclusions of law, we find that the trial court did not err in
awarding custody and guardianship of C.E.L. to M.R.O.
Judges HUNTER and LEVINSON concur.
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