An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-799


Filed: 17 May 2004

IN RE:            
    K.D.                                    Lee County< br>     S.D.                                    Nos. 02 J 53-55


    Appeal by respondents from an order entered 4 November 2003 by Judge George R. Murphy in Lee County District Court. Heard in the Court of Appeals 11 April 2005.

    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.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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