In re: W.W
.
Harnett County
No. 02 J 15
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.
AFFIRMED.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e)
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