IN RE:
K.D. Lee County<
br>
S.D. Nos.
02 J 53-55
D.D.
No brief
for Lee County Department of Social Services
petitioner-appellee
.
Susan J. Hall for the mother
respondent-appellant.
Michael J. Reece for the father respondent-appellant
.
McCULLOUGH, Judge.
On 23 July 2002, the Lee County Department of Social Services
(“DSS”) filed a juvenile petition alleging that K.D., S.D. and D.D.
were neglected and dependent juveniles. Respondent appellants are
the children's mother and father. DSS alleged that respondents
were arrested after leading police on a high speed chase.
Respondents were incarcerated, and no family members were available
to provide care and supervision for the children. A non-secure
custody order was entered and the children were subsequently placed
in foster care. On 6 August 2002, the children were adjudicated
dependent juveniles and custody continued with DSS.
Permanency planning hearings were held on 5 November 2002, 4February 2003, and 19 August 2003. At each hearing, the court
continued custody with DSS, provided for visitation, and stated
that the plan for the children was reunification. Another
permanency planning hearing was held on 4 November 2003. At the
hearing, the court found that the parents had made little progress
towards addressing the issues that led to the removal of their
children, and it was not in the children's best interests to return
them to their home. The court found that reunification was not
possible because neither parent would be able to establish a safe,
permanent home for the juveniles. Accordingly, the court concluded
that the parental rights should be terminated and that the plan for
the children should be changed from reunification to adoption.
Respondents appeal.
Respondent-mother argues that the trial court did not have
sufficient evidence from which to conclude that her parental rights
should be terminated and the plan for the children should be
changed from reunification to adoption. Respondent-mother asserts
that she was making reasonable progress under the circumstances,
noting that she is employed, paying child support, is taking her
mental health medication, and is staying drug free. Respondent-
mother contends that the children could remain in foster care for
another six to eight months to allow her to complete her outpatient
treatment.
After careful review of the record, briefs and contentions of
the parties, we affirm.
This Court has stated:
All dispositional orders of the trial courtafter abuse, neglect and dependency hearings
must contain findings of fact based upon the
credible evidence presented at the hearing.
If the trial court's findings of fact are
supported by competent evidence, they are
conclusive on appeal. In a permanency
planning hearing held pursuant to Chapter 7B,
the trial court can only order the cessation
of reunification efforts when it finds facts
based upon credible evidence presented at the
hearing that support its conclusion of law to
cease reunification efforts.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003)
(citations omitted); see also In re Eckard, 144 N.C. App. 187, 547
S.E.2d 835 (2001)
. The trial court has the authority to cease
reunification efforts as follows:
(b) In any order placing a juvenile in
the custody or placement responsibility of a
county department of social services, whether
an order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that:
(1) Such efforts clearly would be
futile or would be inconsistent
with the juvenile's health,
safety, and need for a safe,
permanent home within a
reasonable period of time[.]
N.C. Gen. Stat. § 7B-507(b) (2003). Here, the trial court stated
that a return to respondent-mother's home would be contrary to the
children's health, safety, welfare and best interests in accordance
with the above statute. The trial court based its conclusion on
findings that respondent-mother had missed several visits with the
children; had not moved forward in the halfway house to thesatisfaction of DSS; had changed employment three times since being
at the halfway house; and had stopped taking prescribed medication
and did not seek assistance until forced to do so. The court
further found that respondent-mother had failed to establish a safe
home for the children within a reasonable amount of time, and would
be unable to do so for at least another six to eight months, and
possibly longer if she relapsed.
The trial court based its findings on testimony from R.J.
Sauve and Amy Butler. Sauve, a DSS employee, testified that: (1)
out of the eleven previous weeks, respondent-mother only visited
the children three times; (2) she had broken the rules of her
halfway house by dating while in the program; (3) she had lied
about being at work; and (4) she had changed employment three
times, working at an Arby's, Wendy's, and then at Southern Season,
and did not make her employer aware of her felony history. Butler,
the President of Oxford House, the halfway house where respondent-
mother resided, testified that it would be “probably six months to
a year longer” that respondent-mother would have to stay at Oxford
House. Thus, we find there was competent evidence presented at the
hearing to support the findings of fact contained in the trial
court's order, and these findings support the trial court's
conclusions of law. Accordingly, the assignment of error is
overruled.
Respondent-father argues that he did not receive effective
assistance of counsel because his attorney neither arranged for him
to be brought to the hearing nor sought a continuance. Thus,respondent-father contends he was denied the opportunity to testify
at the hearing. We are not persuaded.
Pursuant to N.C. Gen. Stat. § 7B-602, where the juvenile
petition alleges abuse, neglect, or dependency, the parent has a
right to counsel. The right to counsel includes the right to
effective assistance of counsel. In re Bishop, 92 N.C. App. 662,
665, 375 S.E.2d 676, 678 (1989). “To prevail on a claim of
ineffective assistance of counsel, respondent must show that
counsel's performance was deficient and the deficiency was so
serious as to deprive her of a fair hearing.” Id. at 665, 375
S.E.2d at 679
. At the hearing, counsel noted that respondent-
father was incarcerated and that he had “not heard from him.”
Respondent-father contends that counsel should have secured his
presence at the hearing, or requested a continuance. However,
there is no evidence in the record to indicate that respondent-
father asked to be at the hearing. Moreover, in his absence,
counsel did cross-examine witnesses and presented arguments on
respondent-father's behalf.
Even assuming arguendo that respondent-father had been at the
hearing, it is unlikely the court would have reached a different
decision. The trial court found that respondent-father was
“incarcerated and has made little effort to contact the children.”
Sauve testified that respondent-father had been making collect
calls to the children's foster home through August 2003. However,
Sauve testified that:
The parents reported to me and I was told bythe children that [the father] was using the
phone calls to get information from the
children about their mother and to get them to
pass information to the mother.
After respondent-father was notified that his conduct was improper,
he stopped calling and writing the children regularly, writing only
one letter and making two phone calls in eleven weeks. In light of
this evidence, it is unlikely that respondent-father's presence at
the hearing would have had any effect on the court's decision.
Thus he can show no prejudice due to his counsel's alleged
ineffectiveness. Accordingly, the order is affirmed.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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