In Re: S.W., (04-892) 05/17/2005

Appeal by respondent from judgment entered 29 January 2004 by Judge Marvin P. Pope in Buncombe County District Court. Heard in the Court of Appeals 3 March 2005.

    Buncombe County Department of Social Services by John C. Adams.

    Carol Ann Bauer for respondent father.

    Judy N. Rudolph for Guardian ad Litem.

    TIMMONS-GOODSON, Judge.

    Respondent father appeals a neglect and dependency adjudication judgment and dispositional order continuing custody of his daughter, Sarah,   (See footnote 1) with the Buncombe County Department of Social Services (“DSS”). Because the trial court did not abuse its discretion, we affirm.
    The factual and procedural history of this case is as follows: Sarah was born in July 2003   (See footnote 2) to respondent and Rebecca Irving   (See footnote 3) (“Rebecca”). On 14 October 2003, DSS filed a petition alleging that Sarah was neglected and dependent, obtained a non-secure custody order, and took custody of Sarah.
    The matter came on for hearing on 3 December 2003. Respondent father and respondent mother did not contest the allegations of the petition. Accordingly, the trial court adjudicated Sarah neglected and dependent and proceeded with the dispositional portion of the hearing. The only witness to testify during the dispositional hearing was respondent's father, Mr. Wilson,   (See footnote 4) of Morganton, Burke County, North Carolina. Mr. Wilson testified that he wanted custody of his granddaughter Sarah. He further testified that he would provide transportation for Sarah from his home in Morganton to Buncombe County for visitation with Rebecca, and to the home of respondent who also lives in Burke County.
    At the conclusion of Mr. Wilson's testimony, respondent's counsel argued that Mr. Wilson should be granted custody of Sarah in lieu of allowing custody to remain with DSS and placing the child in foster care. Attorneys for DSS, Rebecca and the guardian ad litem argued that custody should remain with DSS because the permanent plan for Sarah was to reunify her with Rebecca, which would be more difficult to accomplish if Sarah lived with Mr. Wilson in Morganton. After hearing arguments from both sides, the trial judge noted that Sarah was an infant and at a critical bonding stage in her life. In light of Sarah's age, the trialcourt determined that her best interests would be served by facilitating reunification with Rebecca so that Sarah could bond with her natural mother. The trial judge ruled that DSS would retain custody of Sarah with visitation privileges for respondent, Rebecca and Mr. Wilson. The trial judge indicated to Mr. Wilson that if DSS were not able to reunite Sarah with Rebecca, then the court would “fall back” on him for custody arrangements. On 29 January 2004, the trial judge filed an order adjudicating Sarah neglected and dependent and a dispositional order. The dispositional portion of the order contained the following pertinent findings of fact:
                        3.    That [Rebecca Irving], mother of the minor child, has acquired an apartment in Livingston . . . .

                        . . . .

        12.    That it is in the best interest of the minor child, [Sarah], that her custody remains with the Buncombe County Department of Social Services with placement in the discretion of the Department, including but not limited to her current foster home, to provide or arrange for foster care or other placement . . . .

        13.    That the best plan to achieve a safe, permanent home for the minor child within a reasonable amount of time is reunification with the mother. That the Buncombe County Department of Social Services should make reasonable efforts to place the child in a timely manner in accordance with the permanency plan specified above, should complete any steps necessary to finalize the permanent plan and should document those actions in the child's case plan.
The trial court also entered the following pertinent conclusions of law:
        1.    That it is in the best interest of the minor child, [Sarah], that her custody remains with the Buncombe County Department of Social Services with placement in the discretion of the Department, including but not limited to her current foster home, to provide or arrange for foster care or other placement . . . .

        2.    That the best plan to achieve a safe, permanent home for the minor child within a reasonable period of time is reunification with the mother. That the Buncombe County Department of Social Services should make reasonable efforts to place the child in a timely manner in accordance with the permanency plan specified above, should complete any steps necessary to finalize the permanent plan and should document those actions in the child's case plan.

The trial court therefore ordered in pertinent part the following:

        1.    That the minor child, [Sarah], is a neglected and dependent child.

        2.    That it is in the best interest of the minor child, [Sarah], that her custody remains with the Buncombe County Department of Social Services with placement in the discretion of the Department, including but not limited to her current foster home, to provide or arrange for foster care or other placement.

        3.    That the best plan to achieve a safe, permanent home for the minor child within a reasonable period of time is reunification with the mother.

It is from the trial court's order that respondent appeals.

    The sole issue presented on appeal is whether the trial court erred by ordering that Sarah's best interests would be served by continuing her custody with DSS rather than placing her custody with her grandfather. For the following reasons, we affirm the trial court's ruling.
    As an initial matter, we note that because respondent has not assigned error to any of the trial court's findings of fact, those findings are deemed to be conclusive and binding on appeal. In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985). Therefore, we limit our review to the trial court's conclusions of law.
    In a dispositional proceeding, the trial court must determine how to serve the best interests of the child. In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002). A best interest determination is in the discretion of the trial court. Id. “The trial judge has broad discretion in custody cases, since he has an opportunity to see and hear the parties and witnesses. His decision will not be disturbed on appeal, absent an abuse of discretion.” Campbell v. Campbell, 63 N.C. App. 113, 114, 304 S.E.2d 262, 263 (1983) (citations omitted).
    The purpose of our Juvenile Code is in pertinent part to “provide standards for . . . the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.” N.C. Gen. Stat. § 7B- 100(4) (2003). “In the case of any juvenile . . . who needs placement, the court may . . . [p]lace the juvenile in the custodyof a . . . relative . . . or [p]lace the juvenile in the custody of the department of social services in the county of the juvenile's residence.” N.C. Gen. Stat. § 7B-903(a)(2)b. and c. (2003).
        In placing a juvenile in out-of-home care . . . the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile. In placing a juvenile in out-of-home care under this     section, the court shall also consider whether it is in the juvenile's best interest to remain in the juvenile's community of residence.

N.C. Gen. Stat § 7B-903(a)(2)c (2003) (emphasis added).
    In the instant case, the trial court recognized that Mr. Wilson was willing and able to provide proper care and supervision for Sarah in a safe home. However, the court in its discretion determined that, in light of the distance between Morganton and Livingston, Sarah's best interests would be served by placing her in the custody of DSS where she would be geographically closer to Rebecca. This would facilitate the child's reunification with her mother. We recognize respondent's frustration that Sarah would be placed with strangers in foster care instead of with a relative who was willing and capable of providing a safe and nurturing environment for her. However, as noted by DSS in its appellate brief,
        an integral part of the plan of reunification with the mother was an arrangement whereby the mother would spend extended time in her homewith the minor child, who would be transported by and supervised by an In-Home social worker provided by Mountain Area Resources. Placement of the minor child in Burke County with the Paternal Grandfather would make that plan impossible.

Ease of access to the child is a critical element of the reunification process which may be thwarted if Sarah were to live with her grandfather in Morganton. Thus, we conclude that the trial court did not abuse its discretion by ordering Sarah's custody to continue with DSS for placement in foster care rather than placing custody with her grandfather.
    AFFIRMED.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1