IN RE:
K.L
.
Rutherford County
No. 02 J 107
Bradley K. Greenway for petitioner-appellee Rutherford County
Department of Social Services; Taylor & Brown, P.A., by Lee F.
Taylor, for Guardian ad Litem.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
respondent-appellant.
ELMORE, Judge.
Mark Prieur (respondent) appeals from a review and permanency
planning order granting guardianship of the minor child K.D.L. to
Donald and Mary Lesheski (the maternal grandparents). We affirm.
The proceedings in this case originated with a petition filed
by the Rutherford County Department of Social Services (DSS),
alleging that K.D.L. was an abused and neglected juvenile. The
child had been residing with her mother, Genene Poe, at the time
this petition was filed. Respondent is the biological father of
K.D.L., but he and Genene Poe were never married. Respondent did
not live with Ms. Poe and the child. On 15 July 2002 Genene Poe
was involved in a dispute with her boyfriend, David Prieur, who isrespondent's son. The petition alleged that on 15 July 2002 Genene
Poe threatened to throw herself and the child in the path of David
Prieur's truck while it was backing up. The law enforcement
officials who responded to the call regarding this incident
observed that Ms. Poe was impaired by a controlled substance. On
15 July 2002 the district court entered an order ajudicating K.D.L.
to be an abused and neglected juvenile, and the child was placed in
the physical custody of respondent.
On 2 August 2002 respondent left his twelve and fourteen-year-
old daughters alone in the residence overnight with the twenty-
three-year-old boyfriend of the elder daughter. Respondent
testified that he left his daughters alone while he traveled to
West Virginia with K.D.L. in order to obtain the child's birth
certificate. As a result of this incident, DSS removed K.D.L. from
the custody of respondent on 14 August 2002. After several weeks,
the child was placed into the physical custody of the maternal
grandparents. In September 2002 respondent informed DSS that he
did not think he could provide financially for K.D.L. and did not
want custody of her.
DSS social worker Anitra McKinney testified that prior to
April 2003 respondent refused to sign the family services case plan
or to work towards reunification with K.D.L. After the unexpected
death of Genene Poe, he began complying with the case plan's
requirements. The maternal grandparents testified that K.D.L. has
resided with them continuously since August 2002 and thatrespondent has not requested any visitation other than the court-
ordered visitations on alternate weekends.
After considering testimony during a hearing on a DSS motion
for review and guardianship, the trial court found that it was in
the child's interest for achieving a safe and permanent home that
legal guardianship be awarded to the maternal grandparents. From
this permanency planning review order entered 19 August 2003,
respondent appeals.
By his first assignment of error, respondent argues that the
trial court lacked personal jurisdiction over him due to a defect
in the summons. In particular, respondent points out that the last
name of the minor child on the summons was “Leskeski,” not
“Lesheski.” However, we need not address the misspelling on the
summons as we hold that respondent waived the right to challenge
personal jurisdiction. When a party makes a general appearance and
does not object to personal jurisdiction, that party waives any
defect in the summons and the court acquires personal jurisdiction.
See Bullard v. Bader, 117 N.C. App. 299, 301, 450 S.E.2d 757, 759
(1994). “The concept of general appearance has been accorded a
very liberal interpretation and virtually any appearance other than
to challenge jurisdiction or to gain an extension of time
constitutes a general appearance.” Humphrey v. Sinnott, 84 N.C.
App. 263, 265, 352 S.E.2d 443, 445 (1987); Bumgardner v.
Bumgardner, 113 N.C. App. 314, 319, 438 S.E.2d 471, 474 (1994)
(“when defendant and his counsel appeared in court and proceeded
with the matter without contesting the court's jurisdiction forlack of service of process, defendant submitted himself to the
jurisdiction of the court and thus, effectively waived any defect
in service of process and service thereof.”). Here, because
respondent appeared and was represented by counsel at the hearing
and made no objection to personal jurisdiction, he cannot now
challenge the court's jurisdiction.
By his next assignment of error, respondent argues that the
court abused its discretion in awarding custody of the juvenile to
her maternal grandparents. Respondent appears to contest the
court's findings, arguing that there is no credible evidence that
K.D.L. was exposed to any dangerous activity while in his custody.
Notably, though, respondent does not except to any of the court's
findings of fact on appeal. These findings, then, are binding on
this Court. Dreyer v. Smith, 163 N.C. App. 155, 156-57, 592 S.E.2d
594, 595 (2004). Even treating respondent's argument as
challenging the court's conclusion that he is not an appropriate
caregiver, we note that the court's findings amply support its
conclusion. The court found that respondent knew of Genene Poe's
illicit drug use during the time when the child was in her physical
custody. Yet, respondent did nothing to protect his daughter from
the dangers created by Ms. Poe's drug use and consequent irrational
behavior. The court also found that respondent had failed to
exercise basic supervision over his teenage daughters who resided
with him. Respondent testified that he thought it appropriate to
leave his twelve and fourteen-year-old daughters alone overnight
with the twenty-three-year-old boyfriend of the fourteen-year-old,but the court found that this behavior was inappropriate parenting.
As noted previously, respondent does not assign error to any of the
court's findings. We conclude that the court's findings support
its conclusion that respondent is not an appropriate caregiver for
K.D.L. Thus, we hold that the court did not abuse its discretion
in awarding legal custody and guardianship of the child to the
maternal grandparents. See Falls v. Falls, 52 N.C. App. 203, 209,
278 S.E.2d 546, 551 (trial judge's decision in custody hearing will
not be upset absent clear abuse of discretion), disc. review
denied, 304 N.C. 390, 285 S.E.2d 831 (1981).
Defendant next contends that the court committed reversible
error in failing to make the necessary findings pursuant to N.C.
Gen. Stat. §7B-907(b) in its order. This statute provides that at
the conclusion of a permanency planning hearing, the trial judge
must make written findings as to the following criteria that are
relevant:
(1) Whether 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;
(2) Where the juvenile's return home is
unlikely within six months, whether legal
guardianship or custody with a relative or
some other suitable person should be
established, and if so, the rights and
responsibilities which should remain with the
parents;
(3) Where the juvenile's return home is
unlikely within six months, whether adoption
should be pursued and if so, any barriers to
the juvenile's adoption;
(4) Where the juvenile's return home is
unlikely within six months, whether thejuvenile should remain in the current
placement or be placed in another permanent
living arrangement and why;
(5) Whether the county department of social
services has since the initial permanency plan
hearing made reasonable efforts to implement
the permanent plan for the juvenile;
(6) Any other criteria the court deems
necessary.
N.C. Gen. Stat. §7B-907(b) (2003).
Respondent asserts that the court failed to comply with
Section 7B-907(b)(1) in that the order does not specifically state
why the child cannot be returned home within the next six months,
as opposed to at the immediate time of the hearing. Respondent
cites In re Ledbetter, 158 N.C. App. 281, 580 S.E.2d 392 (2003),
and In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003), as
support for his argument that the court's findings were
insufficient. Both cases involved a permanency planning review
order, and on appeal this Court considered whether the trial
court's findings complied with the requirements of N.C. Gen. Stat.
§7B-907(b). In Ledbetter, this Court reversed and remanded the
order upon determining that none of the trial court's findings
addressed the possibility that the child could be returned home.
158 N.C. App. at 285-86, 580 S.E.2d at 394-95. In Harton, this
Court vacated and remanded the order wherein the trial court
adopted DSS and guardian ad litem reports as findings and stated a
single evidentiary fact which did not address any of the §7B-907(b)
criteria. 156 N.C. App. at 660, 577 S.E.2d at 337. We do not read Ledbetter and Harton to require that the court
rigidly follow each and every criterion set forth in the statute in
entering its written findings. Rather, the court must address each
relevant criterion, state the findings specially, and support each
finding with logical reasoning. See id. This Court's primary
concern in decisions considering the adequacy of findings in a
permanency planning order is that the trial court not delegate its
factfinding responsibility. See, e.g., In re M.R.D.C., ___ N.C.
App. ___, ___, 603 S.E.2d 890, 893 (2004) (trial court may not use
written reports of DSS as substitute for findings); In re J.C.S.,
164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004) (court may not
simply recite allegations instead of making findings on relevant
§7B-907(b) factors). That concern is not implicated here, as the
trial court made extensive findings based upon the testimony of the
witnesses.
Again, the trial judge found, inter alia, that “[respondent]
is not an appropriate caregiver for [K.D.L.] at present” based upon
the following: his lack of involvement with the child and refusal
to cooperate with social workers prior to the death of Genene Poe;
his unwillingness to advise authorities of or to take action
concerning the illegal drug use of Genene Poe while the child was
in her custody; and his poor decision in allowing his fourteen-
year-old daughter to have an illegal sexual relationship in his
residence with a twenty-three-year-old man. The court then found
that since the child had been primarily raised by the maternal
grandparents since birth, it was in the child's best interest theybe awarded guardianship. We hold that the court entered adequate
findings pursuant to N.C. Gen. Stat. §7B-907(b).
Finally, respondent challenges the inaudible portions of the
taped permanency planning hearing as denying him his rights of due
process and effective assistance of appellate counsel. However,
respondent does not identify which, if any, issue he cannot appeal
to this Court due to an inaccurate or incomplete hearing
transcript. Therefore, respondent has failed to show that
meaningful appellate review of any issue presented is precluded
here. See In re Hartsock, 158 N.C. App. 287, 293, 580 S.E.2d 395,
399 (2003) (new trial required only where trial transcript is
entirely inaccurate and inadequate).
For the foregoing reasons, we overrule each of respondent's
assignments of error and affirm the order of the trial court.
Affirmed.
Judges WYNN and HUDSON concur.
Report per Rule 30(e).
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