An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-582


Filed: 15 March 2005

In re: W.W .                     Harnett County
                            No. 02 J 15

    Appeal by respondent from judgment entered 29 September 2003 by Judge Franklin F. Lanier in Harnett County District Court. Heard in the Court of Appeals 26 January 2005.
    E. Marshall Woodall, for petitioner-appellee Harnett County Department of Social Services.

    Klein & Freeman, PLLC, by Katherine Freeman, for Guardian Ad Litem.

    The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant father.

    STEELMAN, Judge.
    Respondent-father appeals the district court's permanency planning order which changed the permanent plan to one of adoption for the minor child, W.W., and ordered Harnett County Social Services (DSS) to commence proceedings to terminate the parental rights to W.W. For the reasons discussed herein, we affirm.
    Respondent-father is the natural father and D.C. is the natural mother of W.W. In February 2000, W.W. was born prematurely, at just twenty-five weeks gestation, and as a result had to remain in the hospital for three months following his birth. Due to complications arising from his premature birth, W.W. suffers from asthma and chronic lung disease, and has a history of general pulmonary problems. In January 2002, W.W. suffered a burn to his right hand. His mother failed to properly keep the wound cleaned and bandaged despite the doctors' warning that scarring and loss of function in his hand might result. At this time, the minor child was also suffering from respiratory difficulties, for which he received inadequate care from his parents. In spite of the doctors' pleas for the mother to take W.W. to see a pulmonary specialist, she missed the appointment. The hospital notified DSS regarding their concerns with the mother's care of W.W.
     On 24 January 2002, DSS filed a juvenile petition alleging the child to be neglected in that the child was not receiving necessary medical care. That same day, the trial court entered an order granting DSS non-secure custody of W.W. On 22 March 2002, the trial court conducted an adjudication hearing, which respondent-father attended. After hearing the evidence presented, the trial judge adjudicated W.W. to be neglected. Immediately following the adjudication, the trial court held a disposition hearing and awarded DSS custody of the minor child, as well as the authority to place him in the home of the maternal grandfather. On 7 June 2002, the trial court conducted a review hearing pursuant to N.C. Gen. Stat. § 7B-906, and directed that DSS cease reunificationefforts with the mother. The plan for respondent-father remained reunification. DSS retained legal custody of the minor child, and W.W. was removed from his grandfather's home and placed in foster care. The matter was reviewed on 13 September 2002, with the plan for the child continuing to be reunification with respondent- father. However, the trial court imposed several conditions of reunification upon respondent-father, requiring that he (1) become involved with Parents as Teachers; (2) attend demonstrations at ABC Pediatrics to learn about the child's illness and the proper care of the child; (3) attend an asthma support group; and (4) complete nutrition classes.
    At the 13 December 2002 permanency planning hearing, held pursuant to N.C. Gen. Stat. § 7B-907, the trial court found that:
        4(b). The father continues to show sporadic progress in complying with the Family Services Case Plan. He did have overnight visitations, but the child continued to return to foster care smelling of smoke. The father does not appear to appreciate the medical necessity of keeping all smoke away from [W.W.].
    Despite this finding, the trial court gave respondent father the opportunity to continue reunification efforts with W.W., contingent upon respondent-father maintaining a smoke-free environment and showing that he understood the child's medical conditions. On 24 January 2003, the trial court held another permanency planning hearing. With respondent-father's consent, thecourt changed the permanency plan from one of reunification with respondent-father to guardianship with D.W., the minor's paternal aunt.
    At the next permanency planning hearing, the trial court ordered that the plan for the minor child be changed from one of guardianship to one of adoption, and ordered DSS to start proceedings to terminate parental rights. Respondent-father appeals.
    It should be noted that respondent-father did not appeal from the order ceasing reunification efforts. Rather, the order from which he appeals is the one which changed the permanent plan from guardianship to adoption.
    In respondent-father's first assignment of error, he contends the evidence before the trial court was insufficient to support its findings of fact that: (1) the minor child has mental health problems; and (2) respondent-father had not demonstrated he understood the medical needs of his child.
     Our review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings in turn support the conclusions of law. In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). The trial court's findings of fact will be deemed conclusive on appeal if there is any competent evidence in therecord to support them. Id. At any permanency planning review, the trial court can consider information from a number of different sources, including “the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court's review.” N.C. Gen. Stat. § 7B-907(b) (2004). At the 25 July 2003 permanency planning hearing both Darla McCryndle, the placement social worker, and Anne Plummer, the social work supervisor, submitted a report for the trial court's review and use at the permanency planning hearing. In that report, it stated that W.W suffered developmental delays as a result of his premature birth, he was receiving services from Lee-Harnett Mental Health to minimize the problem, and following a DEC evaluation it was recommended he continue with the services. Thus, there was competent evidence in the record to support the trial court's finding that W.W. has mental health issues and should receive attention for them. This assignment of error is without merit.
    Next, respondent-father contends there was insufficient evidence to support the trial court's finding of fact that he failed to demonstrate that he understood the medical needs of his child. “[W]hen a fact has been . . . decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.” King v. Grindstaff, 284N.C. 348, 355, 200 S.E.2d 799, 804 (1973) (citations and internal quotation marks omitted). At the 24 January 2003 permanency planning hearing, the trial court made the following finding:
        b. The father has failed to show the court that the understands [W.W.'s] medical condition to the point that he could provide a smoke free environment. Without this understanding, it is impossible to return this child to his care. It is no longer in [W.W.'s] best interests for reunification efforts to continue.

Respondent-father was present at this hearing and in fact, both he and his attorney consented to the memorandum order entered on that hearing date, which contained this finding. This finding was not excepted to, nor was the order containing it appealed, thus it remained a valid final order which was binding in later proceedings as to the facts regarding neglect that were found to exist at the time it was entered. Accord In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987). See also In re Wilkerson, 57 N.C. App. 63, 70, 291 S.E.2d 182, 186 (1982) (holding the trial court properly applied the doctrine of collateral estoppel in ruling that findings included in a prior adjudication of neglect were binding on it in a later hearing on a petition to terminate parental rights). Furthermore, since the order was not void on its face for lack of jurisdiction, respondent-father cannot now collaterally attack it. See id. at 193-94, 360 S.E.2d at 461.     Even though the prior finding of fact was binding on the trial court at its 25 July 2003 permanency planning hearing, the trial judge allowed respondent-father to present evidence of the efforts he had made to prepare his home for W.W., as well as hearing the testimony from his family and friends, in order to determine if there had been a change in circumstances since the 24 January 2003 hearing. Ms. McCryndle testified otherwise. Even if there is conflicting evidence presented on an issue, where the trial court's findings are supported by competent evidence in the record, they will not be overturned. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 220 (1988). Although conflicting evidence was presented as to this issue, there was sufficient evidence in the record to support the court's finding that respondent-father had not demonstrated that he understood the medical needs of his son. This assignment of error is without merit.
    In respondent-father's second assignment of error he contends it was error for the trial court to ignore the fact that DSS was granted custody of the child due to the mother's wrongdoing and not his. Respondent-father does not cite to any finding of fact which erroneously states the circumstances surrounding the removal of the juvenile from his parents, whether in the 25 July 2003 order, from which respondent-father appeals, nor any other order constituting a part of the record. At the time the child was removed from hisparent's care, both respondent-father and the mother were responsible for W.W.'s care. Testimony was presented at the hearing that the mother took care of the child during the day and respondent-father took care of him at night. As respondent-father was one of W.W.'s primary care-givers, he cannot be absolved of responsibility for the failure to ensure W.W. received adequate medical care. Finally, the petition did not specify which parent was responsible for W.W. receiving inadequate medical care. Rather, in the petition it stated that W.W. is a neglected juvenile, in that he “does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker. This assignment of error is without merit.    
    In respondent-father's third assignment of error he contends the trial court erred in making findings of fact based upon evidence contained in the social worker's report, since he asserts that the report was never properly admitted into evidence. We disagree.
    Respondent-father relies solely on the following exchange, which occurred immediately following the calling of the case for hearing on 25 July 2003:
        MR. WOODALL [DSS's Attorney]: Your Honor, I'd make a motion that I'd be allowed to serve as counsel. I've got an order.

        THE COURT: All right.
        MR. WOODALL: I'd like to hand it up.
        THE COURT: Very well.

        MR. WOODALL: Also the report of the social worker, Ms. McCryndle. Your Honor, this child is in our care, and we are asking that the plan of reunification be changed to adoption of guardianship.

        THE COURT: Ms. Bell, do you oppose or concur with that?
        MS. BELL [Father's attorney]: Oppose it, Your Honor.
From our reading of this exchange, the objection made by respondent-father's counsel, Ms. Bell, was an objection to change the plan for the child to one of adoption, not an objection to the report. Furthermore, near the conclusion of petitioner's evidence, Mr. Woodall stated: “Your Honor, that's the evidence. We would hand in the report.” Respondent-father's counsel made no objection at that time. Rule 10(b)(1) of the Rules of Appellate Procedure requires that “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . .” N.C. R. App. P. 10(b)(1) (2004). By failing to object at trial, respondent- father waived his right to raise this issue on appeal.
    In respondent-father's fourth assignment of error, he contends the trial court abused its discretion in overruling his objectionto the social worker's opinion that he had not made “his child his primary plan, his primary focus[,]” and that “[h]e's moved on as far as relationshipwise.” We disagree.
    Rule 701 of the Rules of Evidence provides that:
        [i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 8C-1, Rule 701 (2004). Ms. McCryndle was not testifying as an expert. She formed her opinion based on observations she made while completing several at-home visits with respondent-father. Her opinion was helpful to a determination of a fact in issue - the best plan for the minor child. Therefore, the trial court did not err in allowing this testimony into evidence. See Tate v. Hayes, ___ N.C. App. ___, ___, 489 S.E.2d 418, 421 (1997).
    Even assuming arguendo that the trial judge erred in overruling respondent-father's objection to the social worker's comment, “'[t]he mere admission by the trial court of incompetent evidence over proper objection does not require reversal on appeal.'” In re Morales, 159 N.C. App. 429, 433, 583 S.E.2d 692, 695 (2003) (citations omitted). When the trial judge sits as the trier of fact, as is the case here, the burden is on the contestingparty to establish that the trial court relied on the incompetent evidence in making its findings of fact, in order to necessitate a reversal of that order. Id. “'Where there is competent evidence in the record supporting the court's findings, we presume that the court relied upon it and disregarded the incompetent evidence.'” Id. (citations omitted).
    Respondent-father has failed to meet this burden. There is nothing in the record which indicates that the trial court based its final decision on this statement. Moreover, respondent-father was allowed to refute the social worker's opinion when he testified that just because he had another child did not mean he would not be able to take care of W.W. as well. There was sufficient evidence in the record to support the trial court's findings. Consequently, this assignment of error is overruled.
    In respondent-father's fifth assignment of error, he contends the trial court erred in finding that he had not had visitation with the child since 24 January 2003. We disagree.
    As we stated above, the trial court's findings of fact are deemed conclusive if supported by competent evidence in the record. J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161. In the trial court's review order from the 24 January 2003 review hearing, it concluded that “[t]here shall be no visitation with the father or others unless approved by the Court.” Respondent-father did notappeal from this order, thus it is binding. Wheeler, 87 N.C. App. at 194, 360 S.E.2d at 461. There is no evidence in the record that respondent-father has had visitation with his child since that time. This assignment of error is overruled.
    In respondent-father's sixth assignment of error, he contends the trial court erred in finding that “No other relatives [of the father] have been suggested to the petitioner and no appropriate placement has been suggested to the Court.” We disagree.
    Respondent-father himself testified that the relative he had in mind to act as W.W.'s guardian declined the placement of the child in her home. He further admitted he did not provide DSS with any other relatives' names who might be willing to take his son, as well as admitting he did not provide any other suggestions for appropriate placement. The social worker also testified that respondent-father failed to provide the name of another person who might serve as guardian, and that in fact, no other person had been found to serve as a guardian for W.W. Thus, there was competent evidence in the record to support this finding of fact. This assignment of error is overruled.
    In respondent-father's seventh assignment of error he contends the trial court's conclusion of law that “reunification of the child with either parent remains futile and guardianship with arelative appears to be futile,” when he contends he met all of DSS's requirements. We disagree.
    When the trial court sits without a jury, “the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.” Lee v. Lee, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (2004). While the trial court's findings are conclusive on appeal if they are supported by evidence in the record, we review the trial court's conclusions of law de novo. Id.
    As stated above, the trial court's findings of fact were supported by the evidence, and they are binding on this Court. We now determine whether those findings of fact support this conclusion of law. The trial court found: (1) efforts to reunite the child with the father were ordered ceased at the last review and a plan of guardianship was established; (2) W.W.'s parents have not demonstrated they understand the special needs of their child; and (3) that the relative the father had in mind for placement of the child declined and no other relatives had been suggested. These findings support that the trial court's conclusion of law that reunification of the child with either parent remains futile, as does guardianship with a relative. This assignment of error is without merit.    In respondent-father's eighth and final assignment of error, he contends the trial court failed to consider and make the appropriate findings as required by N.C. Gen. Stat. § 7B-907.
    N.C. Gen. Stat. § 7B-907(b) requires that if a juvenile is not returned home at the conclusion of a permanency planning hearing, the trial court must consider certain specified criteria and “make written findings regarding those that are relevant.” N.C. Gen. Stat. § 7B-907(b) (2004). However, it is not required that a permanency planning order contain a formal listing of the six factors listed in N.C. Gen. Stat. § 7B-907(b) as long as the trial court makes findings of fact as to those that are relevant to its decision. J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161.
    In its permanency planning order which is the subject of this appeal, the trial court concluded that the permanent plan for W.W. should be changed from one of guardianship to one of adoption. While the permanency planning order does not expressly contain a formal listing of the factors enunciated in N.C. Gen. Stat. § 7B- 907(b), we nevertheless conclude the trial court did consider and make written findings regarding those factors that were relevant to the proceeding. By changing the permanent plan for W.W. to adoption and finding the child's parents had not demonstrated they understand his special needs, the trial court necessarily determined (1) why it was not in the minor child's best intereststo return home within the next six months, pursuant to § 7B-907(b)(1); (2) that adoption should be pursued despite the presence of potential barriers thereto, pursuant to § 7B-907(b)(3); and (3) that the child should remain in his current foster care placement, pending his adoption, pursuant to § 7B-907(b)(4). Accord J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161. The trial court specifically found that DSS had “exercised reasonable efforts in carrying out the plan of the Court and in attempting to prevent the need for placement in care for this child[,]” pursuant to N.C. Gen. Stat. § 7B-907(b)(5). Furthermore, the trial court specifically found that a plan for guardianship had been established, but the relative respondent-father had in mind had declined placement and no other relatives or appropriate placement for W.W. had been suggested, thereby finding that guardianship or custody with a relative was not feasible pursuant to § 7B- 907(b)(2). As a result, we hold that the trial court made the necessary findings regarding the factors that were relevant.
    Respondent-father further contends the trial court allowed “its bias to overcome its legal obligation to consider all the evidence in coming to its decision.” Respondent-father has provided no evidence, nor cited any authority in support of this contention. Pursuant to N.C. R. App. P. 28(b)(5), this argument is deemed abandoned. See also Piedmont Triad Airport Auth. v.Urbine, 354 N.C. 336, 343, 554 S.E.2d 331, 335 (2001), certiorari. denied, 535 U.S. 971, 152 L. Ed. 2d 381 (2002).
    We note that throughout respondent-father's assignments of error he contends the trial court's actions amount to plain error. The plain error rule only applies in criminal cases, not civil cases. See Wachovia Bank v. Guthrie, 67 N.C. App. 622, 626, 313 S.E.2d 603, 606 (1984). Since the appellate courts of this state have declined to extend plain error review to include child custody cases, it was improper for counsel to argue this in her brief. See In re Gleisner, 141 N.C. App. 475, 479, 539 S.E.2d 362, 365 (2000). Furthermore, we note that the brief of the guardian ad litem, written in support of the appellee, is single spaced. This is a violation of Rule 28(b)(6) of the Rules of Appellate Procedure, which requires a brief's text to “be presented with double spacing between each line of text.” N.C.R. App. P. 26(g)(1) (2004). Such a violation exposes appellate counsel to the possibility of sanctions by this Court.
    For the reasons discussed herein, we affirm the ruling of the trial court.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e)

*** Converted from WordPerfect ***