An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-82


Filed: 19 April 2005


K.L .                                 Rutherford County
                                No. 02 J 107

    Appeal by respondent from an order entered 19 August 2003 by Judge C. Randy Pool in Rutherford County District Court. Heard in the Court of Appeals 30 November 2004.

    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.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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