An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1057
NORTH CAROLINA COURT OF APPEALS
Filed: 2 August 2005
IN THE MATTER OF: T.S.A.
D.S.G.
Union County
No. 01-J-227, 228
Appeal by respondent from order entered 5 December 2003 by
Judge Christopher W. Bragg in District Court, Union County. Heard
in the Court of Appeals 13 April 2005.
Dale Ann Plyer for petitioner-appellee, Union County
Department of Social Services.
William L. McGuirt for the guardian ad litem.
David Childers for respondent-appellant.
McGEE, Judge.
Respondent, father of the minor child D.S.G., appeals from a
review and permanency planning order placing custody of D.S.G. with
D.S.G.'s maternal grandmother. Respondent is not the biological
father of D.S.G.'s younger sister, T.S.A., and the custody of
T.S.A. is not at issue in this appeal.
Respondent lived with his mother and stepfather in Lancaster,
South Carolina. D.S.G. spent a substantial amount of time in
respondent's home from her birth on 26 September 1999 until
September 2001, when D.S.G.'s mother picked up D.S.G. for a visit
and never returned the child.
Union County Department of Social Services (DSS) found D.S.G.
and T.S.A. unsupervised in a motel room in Monroe, North Carolinaon 19 December 2001. Their mother was away, looking for
employment. DSS took custody of the children and filed a petition
on 21 December 2001, alleging that the children were neglected and
dependent.
A hearing was held on 9 January 2002 to determine jurisdiction
because the children had lived in South Carolina for most of their
lives. After conferring with the trial court in Lancaster County,
South Carolina, the trial court in this State determined that South
Carolina was the "home state for the purpose of continued
jurisdiction in this matter." The trial court further found that
North Carolina retained "authority to enter Temporary Nonsecure
Custody Orders for the sole purpose of protection of [D.S.G.], but
[did] not have jurisdiction beyond any emergency basis." However,
at a subsequent review hearing on 23 January 2002, the trial court
found that the South Carolina Department of Social Services (South
Carolina DSS) was refusing to accept the case, even though the
courts of South Carolina had accepted jurisdiction. In the same
order, the trial court concluded that it had jurisdiction over both
the individual parties and the cause of action, and had
jurisdiction to make a child custody determination "under the
provisions of N.C.G.S. 50A-201, 50A-203, or 50A-204." The trial
court ordered that D.S.G. "remain in the legal custody of DSS with
placement in foster care."
In a review hearing on 6 March 2002, the trial court found
that D.S.G. had spent substantial time with respondent in South
Carolina, and ordered a home study of respondent's home. Anunfavorable home study was filed because respondent's stepfather
had criminal charges pending against him. In the adjudication
hearing held 24 April 2002, the trial court adjudicated the
children to be dependent and placed the children in D.S.G.'s
maternal grandmother's home in Virginia. Custody of D.S.G.
remained with DSS, and respondent was granted scheduled visitations
with D.S.G.
Respondent was employed part-time by 18 December 2002. He
requested that a second home study be performed due to this change
in his circumstances. Following a request from DSS, South Carolina
DSS performed the second home study of respondent's home on 17
March 2003. The home study was again unfavorable. South Carolina
DSS's report stated that respondent's history of unemployment, and
the fact that he was again unemployed and dependent on his mother
at the time of the home study made it "unlikely that [respondent]
and [respondent's mother] could financially support another
individual at [that] time." Additionally, South Carolina DSS
expressed concern about the inadequate size of the living quarters
in the home, noting that "because the home has only two bedrooms,
[respondent] has to sleep on the sofa[,] [respondent's mother] has
one room[,] and the other room will be for [D.S.G.]."
In disposition and review hearings from July 2002 through 5
November 2003, the trial court consistently found that the
placement of D.S.G. with her maternal grandmother was in the best
interests of D.S.G.
At a review and permanency planning hearing on 5 November2003, D.S.G.'s guardian ad litem recommended that custody of the
children be granted to the maternal grandmother. The children had
been placed with the maternal grandmother since April 2002, and
although the placement was originally in Virginia, the maternal
grandmother had moved to South Carolina with the children in the
summer of 2003. The maternal grandmother received favorable home
studies in both Virginia and South Carolina. Evidence at the
hearing showed that respondent had moved to a new home, but that
South Carolina DSS had never received his new address to conduct a
third home study. Respondent objected to custody of D.S.G. being
given to D.S.G.'s maternal grandmother. The trial court noted
respondent's objection but stated in its order that no further
review hearings were needed, that DSS was relieved of any further
responsibility in this matter, and that legal custody with the
maternal grandmother was in D.S.G.'s best interests. Respondent
appeals.
I.
Respondent first argues that the trial court erred in its 5
November 2003 permanency planning order by ordering D.S.G.'s
placement with her maternal grandmother before a third South
Carolina home study of respondent's home was completed. Our
"review of a permanency planning order is limited to whether there
is competent evidence in the record to support the findings and the
findings support the conclusions of law." In re J.C.S., 164 N.C.
App. 96, 106, 595 S.E.2d 155, 161 (2004). A trial court's findings
of fact, when supported by competent evidence, are conclusive onappeal. In re H.W., 163 N.C. App. 438, 443, 594 S.E.2d 211, 213,
disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
In the present case, the trial court found that it was not in
D.S.G.'s best interest that she be returned to respondent because
no positive home study had been returned on respondent's home.
Both prior home studies of respondent's home were unfavorable. By
contrast, the trial court found that "[t]he best plan of care to
achieve a safe, permanent home for [D.S.G.] within a reasonable
period of time" was to place D.S.G. with her maternal grandmother.
(R. p. 88). See N.C. Gen. Stat. § 7B-907(a) & (c) (2003) ("The
purpose of [a] permanency planning hearing shall be to develop a
plan to achieve a safe, permanent home for the juvenile within a
reasonable period of time."). Based on these findings of fact, the
trial court concluded that it was in D.S.G.'s best interest that
D.S.G.'s maternal grandmother be awarded custody of D.S.G.
Respondent does not challenge specific findings of fact or
conclusions of law of the trial court. Thus, the findings of fact
and conclusions of law are binding on appeal. See In re Beasley,
147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001) (stating that
findings of fact not excepted to were conclusive on appeal).
Rather, respondent asserts that the trial court erred when it
entered the permanency planning order granting legal custody of
D.S.G. to D.S.G.'s maternal grandmother without considering a third
home study of respondent's home. Respondent asserts that the third
home study "was being conducted by South Carolina, but no report
had been made," and that respondent's parental rights "deservedmore protection than the trial court allowed." Our review of the
record, however, shows that respondent had moved to a new
residence, but despite having been previously instructed to do so,
respondent had not notified South Carolina DSS of his new address
in order that a home study could be performed. Respondent not only
failed to assure that the third home study was performed prior to
the 5 November 2003 permanency planning hearing, but respondent
also presented no evidence demonstrating a favorable change in his
circumstances. The trial court was required by statute to develop
a "plan of care to achieve a safe, permanent home" for D.S.G.
"within a reasonable period of time" that would be in D.S.G.'s best
interests. N.C.G.S. § 7B-907(c). D.S.G. had been placed with
D.S.G.'s maternal grandmother since 24 April 2002, and the trial
court found that continuation of this placement was in D.S.G.'s
best interests. The trial court therefore fulfilled its statutory
requirement and did not err by granting D.S.G.'s maternal
grandmother custody of D.S.G.
II.
Respondent next argues that the trial court erred by failing
to make specific findings of fact in its permanency planning order
to support an award of custody of D.S.G. to D.S.G.'s maternal
grandmother. Specifically, respondent asserts that the trial court
erred in granting legal custody of D.S.G. to a non-parent when the
trial court failed to find that respondent, D.S.G.'s natural
parent, was unfit or that respondent had forfeited his
constitutionally protected status as a parent. Respondent arguesthat for a non-parent to be awarded custody of a child over a
natural parent, the non-parent petitioner must (1) prove by clear,
cogent, and convincing evidence that the parent has forfeited his
constitutionally protected status, and also (2) prevail over the
parent under the "best interest of the child" standard.
(Respondent's Br. p. 13).
See Cantrell v. Wishon, 141 N.C. App.
340, 343-44, 540 S.E.2d 804, 806-09 (2000). Respondent further
asserts that "absent a finding that parents (i) are unfit or (ii)
have neglected the welfare of their children, the
constitutionally-protected paramount right of parents to custody,
care, and control of their children must prevail."
See Petersen v.
Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994).
However, the cases cited in respondent's arguments were
decided in civil actions for custody of a minor child filed
pursuant to Chapter 50 of the General Statutes. N.C. Gen. Stat. §
50-13.1 (2003);
see Petersen, 337 N.C. at 399, 445 S.E.2d at 902
(reinstating the trial court's order granting custody to biological
parents against foster parents who had filed a civil action for
custody)
;
Cantrell, 141 N.C. App. at 341, 540 S.E.2d at 805
(involving appeal by the children's paternal aunt and uncle who had
initiated the custody action). The present case involves a
juvenile petition filed by DSS, alleging that D.S.G. was neglected
and dependent under the Juvenile Code, Chapter 7B. N.C. Gen. Stat.
§7B-100
et. seq. (2003).
In juvenile proceedings, the trial court's primary concern is
determining what is in the child's best interests. N.C. Gen. Stat.§ 7B-100(5) (2003) (providing that one of the purposes of
Subchapter I of the Juvenile Code is "[t]o provide standards
. . . for ensuring that the best interests of the juvenile are of
paramount consideration by the court").
See also In the Matter of
R.T.W., ___ N.C. ___, ___, ___ S.E.2d ___, ___ (No. 417PA04) (filed
1 July 2005) ("Even when [removing children from their homes] is
temporarily necessary, N.C.G.S. § 7B-100 urges returning children
to their parents unless doing so would not be in the children's
'best interest.'");
In re Shue, 63 N.C. App. 76, 81, 303 S.E.2d
636, 639 (1983) ("The common thread . . . running throughout the
juvenile code is that the [trial] court must consider the child's
best interests in making all placements whether at the
dispositional hearing or the review hearing."),
aff'd as modified
by 311 N.C. 586, 319 S.E.2d 567 (1984). In the present case,
D.S.G. had been in the custody of DSS since D.S.G. was adjudicated
to be dependent on 24 April 2002. Respondent, represented by
counsel, was present and participated in the 24 April 2002
adjudication hearing. In adjudicating D.S.G. to be dependent, the
trial court determined that it was in the best interest of D.S.G.
for custody of D.S.G. to remain with DSS, with placement in foster
care with the maternal grandmother. Respondent was granted
extended visitation with D.S.G.
Subsequently, the trial court conducted multiple custody
review hearings pursuant to N.C. Gen. Stat. § 7B-906.
(See footnote 1)
At such areview hearing, the trial court "may enter an order continuing the
placement under review or providing for a different placement
as is
deemed to be in the best interests of the juvenile." N.C.G.S. §
7B-906(d) (2003) (emphasis added).
Where a child has been
adjudicated to be dependent, a finding that a parent is fit and
proper to have custody does not mean it is in the best interest of
the child for that parent to have custody of the child.
In re Yow,
40 N.C. App. 688, 693, 253 S.E.2d 647, 650 ("Although the [trial]
court found the appellant was a fit and proper person to have
custody of the child, the test under the statute as to where
custody is placed is what best meets the needs of the child and
what is in the child's best interests."),
disc. review denied, 297
N.C. 610, 257 S.E.2d 223 (1979),
and superseded by statute on
different grounds as stated in In re Poole, 151 N.C. App. 472, 474,
568 S.E.2d 200, 201 (2002). In the present case, despite
specifically not finding that respondent was unfit, the trial court
concluded that D.S.G.'s interests were best served by awarding
custody of D.S.G. to her maternal grandmother.
The trial court's following findings of fact supported this
conclusion of law:
2. It is contrary to [D.S.G's] welfare to be
returned to [respondent] at this time . . . .
No positive home study has been returned onthe home of [respondent].
3. The court finds, pursuant to N.C.G.S.
sec. 7B-907, that the following is relevant so
that a permanent plan for [D.S.G.] may be
developed:
A. It is not possible for [D.S.G.] to
be returned home because the mother's
situation is not stable. There has not
been a positive home study returned on
[respondent], who lives in South
Carolina. Two home studies have been
returned unfavorable.
4. The best plan of care to achieve a safe,
permanent home for [D.S.G.] within a
reasonable period of time is as follows:
custody to the maternal grandmother[.]
These findings of fact are supported by competent evidence, and
thus they are conclusive on appeal. These findings support the
trial court's conclusion that it was in D.S.G.'s best interests
that the maternal grandmother be granted custody. The trial court
did not err, and we overrule respondent's assignment of error.
At the time of the 5 November 2003 hearing, D.S.G. had been
placed outside respondent's home for at least fifteen of the most
recent twenty-two months. Under N.C.G.S. § 7B-907(d), DSS must
initiate termination of parental rights proceedings when a child,
who is in DSS's custody, has been placed outside the home for
twelve of the most recent twenty-two months, unless the trial court
finds that "[t]he permanent plan for the juvenile is guardianship
or custody with a relative or some other suitable person[.]"
See
also R.T.W., ___ N.C. at ___, ___ S.E.2d at ___ (stating that to
avoid having a child be left in "legal limbo" due to the protracted
nature of custody proceedings, the General Assembly "mandate[d]that DSS initiate proceedings to terminate parental rights at
certain stages in the custody process"). The trial court, in the
present case, did not terminate respondent's parental rights
because it determined that the permanent plan for D.S.G. was
custody with a relative, D.S.G.'s maternal grandmother. By not
terminating respondent's parental rights, the trial court did not
"completely and permanently [terminate] all rights and obligations
of [respondent] to [D.S.G.] and of [D.S.G.] to [respondent] arising
from the parental relationship[.]" N.C. Gen. Stat. § 7B-1112
(2003);
see also R.T.W., ___ N.C. at ___, ___ S.E.2d at ___
("Unlike the loss of custody possible under Articles 2-10 [of
Subchapter I of the Juvenile Code], the dissolution of parental
rights under Article 11 is decisive."). Rather, as the trial court
informed respondent, respondent retained the right to again bring
the matter "before the [trial] court for review at any time by the
filing of a motion or on the [trial] court's own motion."
Similarly, the trial court also informed respondent that since
respondent and the maternal grandmother lived in South Carolina at
the time of the 5 November 2003 hearing, respondent (1) could file
a motion for change of venue from North Carolina to South Carolina,
(2) challenge custody, or (3) seek to enforce his visitation rights
in South Carolina.
III.
Respondent's third assignment of error is that the trial court
committed reversible error in its permanency planning order when it
failed to grant respondent visitation rights with D.S.G. Respondent asserts that the trial court refused to rule on
respondent's visitation rights with D.S.G. Respondent further
contends that his attorney requested that the trial court make
findings of fact on visitation, but that the trial court refused.
In support of his argument, respondent cites Andrews v. Peters, 318
N.C. 133, 347 S.E.2d 409 (1986) as standing for the principle that
the trial court must make findings of fact and conclusions of law
even on rulings resting within the trial court's discretion, when
the trial court is requested to do so. See Andrews, 318 N.C. at
138, 347 S.E.2d at 412-13; see also N.C. Gen. Stat. § 1A-1, Rule
52(a)(2) (2003) ("Findings of fact and conclusions of law are
necessary on decisions of any motion or order ex mero motu only
when requested by a party[.]").
Our review of the record reveals that respondent's attorney
did not directly request that the trial court make findings of fact
on the visitation issue. However, such a request could be inferred
from respondent's attorney's discussion with the trial court:
[ATTORNEY]: And, Judge, if I could ask the
Court to make findings that [respondent] has
in no way acted in a manner inconsistent with
his paramount protected parental rights.
THE COURT: He's been in Court. He's been
here asking for - he's asked me to consider
placing custody with him. He's - I think he's
shown up for all [of] the court dates since
I've been involved.
[ATTORNEY]: He's shown up every time.
THE COURT: So -okay. You can make that
finding in there. All right.
[ATTORNEY]: And also there's an issue of
visitation. I would like for him to have somekind of guaranteed contact with [D.S.G.].
The trial court later said that it was not making findings
regarding why it was not ordering visitation rights for respondent.
Given that the trial court had ordered visitation between D.S.G.
and respondent in previous custody review and permanency planning
orders, and that respondent had requested findings of fact on the
visitation issue, we find that the trial court erred when it
declined to make such findings in the 5 November 2003 permanency
planning order.
However, respondent has not shown that he was prejudiced by
the trial court's failure to order any visitation. Although the
maternal grandmother was granted custody of D.S.G., respondent has
not shown that he is being denied visitation. Furthermore, as the
trial court informed respondent, if D.S.G.'s maternal grandmother
did not allow respondent to visit with D.S.G., respondent could
bring an action to enforce visitation. Respondent could also file
a motion seeking review of the custody order pursuant to N.C. Gen.
Stat. § 7B-906(b) (2003). Thus, the trial court's omission of
findings regarding respondent's visitation rights did not
constitute reversible error.
IV.
Respondent next argues that the trial court erred in its
permanency planning order by deferring the issue of respondent's
visitation rights to the courts of South Carolina. However, the
record does not show the trial court deferred the issue of
visitation to the courts of South Carolina. The trial courtdetermined that it would no longer have exclusive, continuing
jurisdiction over the custody issue because neither of D.S.G.'s
parents, nor any person acting as a parent, had significant
contacts with North Carolina. See N.C. Gen. Stat. § 50A-202(a)(1)
(2003). The trial court also recommended that respondent seek to
transfer venue to South Carolina because both respondent and the
maternal grandmother, to whom the trial court granted custody,
lived in South Carolina at the time of the 5 November 2003 hearing.
However, the trial court retained jurisdiction over respondent's
visitation. After expressing that it was not required under law to
continue to review the placement since the children had been placed
with their maternal grandmother for over one year, see N.C.G.S. §
7B-906(b)(1), the trial court informed the parties that they could
bring a motion to review the custody order. See N.C.G.S. § 7B-
906(b) ("The [trial] court may not waive or refuse to conduct a
review hearing if a party files a motion seeking review."). Thus,
we overrule respondent's assignment of error.
V.
Finally, respondent argues that the trial court erred by
adjudicating custody and visitation rights of respondent because
respondent was denied due process of law because the record fails
to show that respondent was served with process. He further
asserts that petitioners never filed any summons, pleading, or
petition naming respondent, and thus respondent never received
proper notice that the State intended to interfere with
respondent's parental rights. Indeed, the record only shows thata summons and petition were served on D.S.G.'s mother on 21
December 2001.
However, the record shows that respondent attended all but the
first two hearings and never raised the issue of service of process
or otherwise challenged the jurisdiction of the trial court.
Respondent, represented by counsel, made his first general
appearance in this matter on 6 March 2002. Respondent subsequently
appeared at all the hearings included in the record from 6 March
2002 through 5 November 2003. In each of the orders from these
hearings, the trial court concluded that it had personal
jurisdiction over the parties and subject matter jurisdiction over
the cause of action. Respondent never objected to the trial
court's determination of personal jurisdiction, thereby waiving his
right to raise this issue on appeal. N.C.R. App. P. 10(b)(1).
See
also N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2003) ("A defense of
lack of jurisdiction over the person, improper venue, insufficiency
of process, or insufficiency of service of process is waived
. . . if it is neither made by motion under this rule nor included
in a responsive pleading or an amendment thereof[.]"). Also,
respondent's general appearance in the matter gave jurisdiction to
the trial court.
See In re Howell, 161 N.C. App. 650, 655, 589
S.E.2d 157, 160 (2003) ("Our Supreme Court has held that a general
appearance of a party in an action gives the [trial] court
jurisdiction over the appearing party even though no service of a
summons is shown."). Respondent cannot now argue that he did not
receive due process or that the trial court did not havejurisdiction over him.
Furthermore, the record shows that respondent not only
attended the custody review and permanency planning hearings, but
also actively participated in these hearings. Respondent and his
counsel had the opportunity to review and object to the information
introduced at each hearing, and the opportunity to present
evidence. Respondent received two home studies, the first of which
was performed in March 2002 and was unfavorable because South
Carolina DSS had concerns about the pending criminal charges of
respondent's stepfather. The second home study was performed in
March 2003 upon respondent's request and was again unfavorable. By
the 5 November 2003 hearing, respondent had requested a third home
study, because he had moved to a new home. However, the evidence
at the hearing showed that respondent had not given his new address
to the South Carolina DSS, as he had been instructed to do, so that
a home study could be performed prior to the 5 November 2003
hearing. Respondent was further informed at the 5 November 2003
permanency planning hearing that he could move to have the custody
arrangement reviewed by the trial court.
See N.C.G.S. § 7B-906(b).
Thus, respondent was not denied due process of law, and the trial
court did not err in developing a permanent custody plan for D.S.G.
We affirm the order of the trial court.
Affirmed.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1 Our Supreme Court recently noted that the "General
Assembly's explicit desire to preserve parent-child relationships
and protect children explains the fluidity of child custodyproceedings under Articles 2
through 10
of Subchapter I."
R.T.W., ___ N.C. at ___, ___ S.E.2d at ___. Custody proceedings
"afford the trial court multiple opportunities to consider and
reconsider whether a child is abused, neglected, or dependent,
and if so, who should have custody. They also give parents time
to correct the deficiencies that led to the child's removal."
Id.
*** Converted from WordPerfect ***