An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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