An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1088


Filed: 5 April 2005

IN THE MATTER OF:                     Burke County
        T.S.                        No. 02 J 27


    Appeal by respondent from order entered 30 March 2004 by Judge L. Suzanne Owsley in Burke County District Court. Heard in the Court of Appeals 14 March 2005.

    Stephen M. Schoeberle, for the Burke County Department of Social Services, petitioner-appellee.

    Mary R. McKay, for the Guardian ad Litem, petitioner-appellee

    Michael E. Casterline, for respondent-appellant.

    CALABRIA, Judge.

    J.S. (“respondent”), the father of the minor child, T.S., appeals from a permanency planning review order, which changed the minor child's placement plan to adoption, thereby removing the prior concurrent plan of placing T.S. with N.S., respondent's mother (the “paternal grandmother”), a resident of Hardyville, Virginia. We affirm.
    T.S. was born on 21 December 2000, and was placed in non- secure custody with the Henderson County Department of Social Services (the “Henderson DSS”) on 19 January 2002, upon allegations of neglect and dependency against B.G., the minor child's mother, and respondent. The Henderson DSS filed a juvenile petition on 22January 2002, alleging B.G. had: (1) given T.S. to a man she had known for less than one hour without authorizing the man to obtain medical care for T.S.; (2) “offered to give the child to [this] current caregiver in exchange for his truck”; and (3) failed to provide a non-hazardous home for T.S., who was asthmatic and had suffered “repeated episodes of pn[eu]monia due to smoke in [the] mother's residence.”
    After a 28 January 2002 hearing on the need for continued non- secure custody, the district court continued T.S. in non-secure custody and authorized the Henderson DSS to place him with J.G., B.G.'s mother (the “maternal grandmother”). Respondent first appeared at a 5 February 2002 hearing where all parties signed a “Memorandum of Consent Judgement.” Pursuant to the memorandum, the court entered a “Consent Order” adjudicating T.S. dependent and transferring venue to Burke County for disposition. The order maintained custody of T.S. with the Henderson DSS and placement with the maternal grandmother pending the transfer of custody to the Burke County Department of Social Services (“DSS”).
    At a 28 February (2002) hearing, the Burke County District Court acknowledged the transfer of venue and continued disposition until 28 March 2002. At subsequent hearings, the court ordered T.S. removed from the maternal grandmother's home, finding that “continuation in that home would be contrary to the juvenile's welfare,” and continued disposition until 12 September 2002. In an order following the 12 September 2002 hearing, the district court noted that B.G. intended “to relinquish her parental rights to thejuvenile.” Also, upon findings of respondent's December 2001 incarceration for domestic violence and additional pending felony charges in Buncombe County, as well as the “unfavorable” results of respondent's home study, the court concluded that DSS had “made reasonable efforts to reunite the juvenile with his parents, but such reunification [was] not in the juvenile's best interests[;] . . . any further such efforts would be futile and not consistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.” The court ceased reunification efforts and scheduled a permanency planning hearing for 10 October 2002. The court also expressed its approval of T.S.'s existing foster placement.
    After the 10 October 2002 permanency planning hearing, the court found that T.S. was twenty-one months old but did not yet speak and that B.G. had formally relinquished her parental rights. Regarding respondent's suitability as a placement for T.S., the court found as follows:
        The juvenile has resided with [respondent] only one month during his life. [Respondent] has not paid any child support, although no action for such has been filed against him. He still has a pending criminal charge against him in Buncombe County. He has no reliable transportation, and he still resides with his girlfriend. He states that he has appointments for a psychological evaluation and parenting classes, but he has not started either yet. He has proposed his mother for possible placement of the juvenile.

Upon these findings, the court ordered: (1) a medical evaluation for T.S.; (2) a permanent plan of “adoption or custody/guardianshipwith a relative”; and (3) DSS to “cause a home study of the home of [the paternal grandmother] to be done in Virginia.”
    Following the 2 January 2003 permanency planning review hearing, the court found respondent was “serving an active sentence in the North Carolina Department of Correction[] with an expected release date in August 2003.” Because the home study of the paternal grandmother in Virginia remained pending, the court found that DSS had not yet filed a petition to terminate respondent's parental rights. The court maintained the permanent plan of “adoption or custody/guardianship with a relative” and ordered DSS to “continue to pursue a home study of the home of [the paternal grandmother] in Virginia.”
    After a 17 July 2003 review hearing, the court found that respondent “expect[ed] to be released [from prison] in 25 days” but had “no specific plans” thereafter and that T.S. was receiving speech therapy following a developmental evaluation. Because the paternal grandmother's home study remained pending, the court maintained the status quo but ordered DSS to “expedite as much as is possible” the paternal grandmother's home study. Following a 6 November 2003 review hearing, the court again entered an order maintaining the permanent plan of “adoption or custody/guardianship with a relative.” Regarding a potential placement with the paternal grandmother in Virginia, the court found that DSS had made “[a]n interstate request . . . for a home study . . . but [the] request [had] not been received by the [proper] local agency . . . .” Further, because the paternal grandmother's home study stillremained pending, DSS had “not filed a motion to terminate [respondent's] parental rights, and such delay [was] reasonable.”
The court again ordered DSS to expedite the paternal grandmother's home study.
    Based on a 29 January 2004 review hearing, the court found:
        [Respondent] continues to assert that [the paternal grandmother] wants to have custody and placement of the juvenile. She has not expressed that herself since talking with a social worker in April of 2003. Recent attempts to contact her by [DSS] have resulted in un-returned phone calls. A home study of her residence in Virginia has not been completed.

In addition to maintaining the permanent plan, the court ordered DSS to expedite the paternal grandmother's home study “as much as is possible” and to “inquire as to the status of that home study.” The court further ordered the paternal grandmother to “communicate her wishes to the Court in detail in writing prior to the next review or appear in court that day.”
    The paternal grandmother appeared at the 25 March 2004 review hearing and informed the court she had received “a paper” regarding the home study of her Virginia residence. She had twice attempted to contact her local DSS but had received no response. After questioning the paternal grandmother regarding her living arrangements and her relationship to respondent and T.S., the court entered an order on 30 March 2004, changing the permanent plan for T.S. “to adoption solely[.]” The court based its decision upon the following relevant findings:
        3. The Court previously has determined that [respondent] is not appropriate to havecustody of the juvenile, and [he] continues to assert that his mother may be appropriate. [DSS] has been trying to initiate a home study of [the paternal grandmother's] residence since October of 2002. Through no fault of [the paternal grandmother], that home study was not initiated until this month. However, [she] has not appeared in court previously to express her wishes, has not contacted [DSS] or guardian ad litem, never has met the juvenile, never has had any contact with the juvenile, and has made no efforts to establish a relationship with the juvenile.
        4. [The paternal grandmother] has resided in the same 2-bedroom home for the last 20 years. Her daughter who has Crohn's Disease and her grandson reside there with her. She has contact by phone approximately 3 times per month with [respondent] and face-to-face contact approximately twice a year.
        5. The juvenile has special needs for which he requires ongoing care. He has resided in the same foster home for 17 months, and his foster parents have provided all of that care. They are very committed to the juvenile and wish to adopt him should he become available for adoption.
        6. The juvenile has a stable and long-lasting relationship with his foster parents and no relationship with his paternal grandmother or any other paternal relatives.
        7. The juvenile's case has been before the Court since prior to March 28, 2002, more than 2 years ago. He is in need of permanence.
        8. The juvenile's mother has relinquished him for adoption and the revocation period has expired. It is not possible to return the juvenile to his parents immediately or within 6 months. No barriers to the adoption of the juvenile are known to exist except that [respondent's] parental rights have not been terminated.

Upon these findings, the court concluded:
        1. [DSS] has made reasonable efforts to achieve a permanent home for the juvenile.
        2. The permanent plan should be changed to adoption solely, as adoption is the plan most likely to achieve a permanent home for the juvenile within a reasonable period of time.        3. The best interests of the juvenile would be served by the entry of the following order [changing the permanent plan to adoption].

Accordingly, it ordered DSS to “take all steps necessary to achieve the plan” of adoption and expressed its approval of T.S.'s “current prospective adoptive placement.” From this order, respondent appeals.
    Respondent first asserts that the district court erred in withdrawing the concurrent permanent plan of “custody/guardianship with a relative” without allowing for the completion of the interstate home study of the paternal grandmother's Virginia residence. Noting the “strong preference” expressed by the legislature in N.C. Gen. Stat. § 7B-506 (2003) for relative placements in initial non-secure custody hearings, respondent insists it is unfair both to him and to T.S. to change the permanent plan to adoption without completing the home study, inasmuch as “the failure to complete the home study was not the fault of the [paternal] grandmother or the [r]espondent-[f]ather . . . .” However, respondent cites no authority in support of his proposition that the district court was required to await the completion of the home study before changing the permanent plan to adoption, and the two statutes invoked by him are inapposite.
    Respondent first cites N.C. Gen. Stat. § 7B-3800 (2003), the “Interstate Compact on the Placement of Children, which governs the interstate placement of children among member states. The last sentence in the first paragraph of N.C. Gen. Stat. § 7B-3800 states, “It is the intent of the General Assembly that Chapter 48of the General Statutes shall govern the adoption of children within the boundaries of North Carolina.” Therefore, inasmuch as T.S.'s current placement is with an adoptive foster home in the State of North Carolina, the procedural requirements of N.C. Gen. Stat. § 7B-3800 do not apply. Whatever requirements may adhere to the interstate placements of children, nothing in N.C. Gen. Stat. § 7B-3800 mandates the district court's consideration of an interstate placement; nor does the statute require the court to consider the results of an out-of-state home study before finding an interstate placement to be contrary to a child's best interests. Accordingly, the district court's order does not violate any provision of N.C. Gen. Stat. § 7B-3800.
    Respondent also cites N.C. Gen. Stat. § 7B-506, the statute governing hearings on non-secure custody, which requires the court to place the juvenile with any relative who “is willing and able to provide proper care and supervision of the juvenile in a safe home,” absent a finding that such placement would be contrary to the juvenile's best interests. N.C. Gen. Stat. § 7B-506(h)(2). This statute does not apply to permanency planning review hearings held under N.C. Gen. Stat. § 7B-907 (2003) following an adjudication of dependency and the entry of a dispositional order removing the juvenile from the custody of the parents. Moreover, the record reflects that the Henderson County District Court fully complied with N.C. Gen. Stat. § 7B-506(h)(2), by placing T.S. with the maternal grandmother following the 28 January 2002 hearing onnon-secure custody. We note that neither respondent nor the paternal grandmother appeared at this 28 January hearing.
    In considering the portion of respondent's argument that relies on notions of “fairness” and the general preference accorded placements with relatives, we note the court's decision was based on the best interests of T.S., In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) (establishing that “the best interest of the child is the polar star” in North Carolina child neglect and custody proceedings), and recognize this Court reviews decisions based on the best interests of a child under an abuse of discretion standard. In re Blackburn, 142 N.C. App. 607, 613-14, 543 S.E.2d 906, 910-11 (2001) (applying an abuse of discretion standard in reviewing a court's decision that the best interests of a child required a termination of parental rights). The court grounded its decision in reports submitted by DSS and T.S.'s guardian ad litem on 24 April 2003 and 17 July 2003, as well as its own independent findings regarding: (1) the lack of any relationship between three- year-old T.S. and the paternal grandmother; (2) the failure of the paternal grandmother to make any effort to meet T.S. or to establish a relationship with him; (3) the lengthy delay in obtaining the home study in Virginia; (4) T.S.'s special developmental needs and need for permanence; (5) T.S.'s ongoing seventeen-month relationship with “very committed” adoptive foster parents; and (6) the lack of progress toward the concurrent permanent plan of “custody/guardianship with a relative” between 10 October 2002 and 25 March 2004. Given these findings and thecompetent evidence supporting them, we hold the court's decision that the best interests of T.S. required an order changing the concurrent plan to a plan of adoption was not an abuse of discretion.
    Defendant next asserts that the district court failed in its 30 March 2004 order to enter the findings of fact required by N.C. Gen. Stat. § 7B-907(b) (2003). Under N.C. Gen. Stat. § 7B-907(b), when electing not to return a juvenile to the parent's home, the court must consider the following criteria and enter “written findings regarding those that are relevant[:]”
        (1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;
        (2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;
        (3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;
        (4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;
        (5) Whether the county department of social services has since the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile;
        (6) Any other criteria the court deems necessary.

    As in his first assertion, respondent offers no citations to pertinent case law in support of this assertion; nor does he specify the manner in which the district court's findings of factare non-compliant with N.C. Gen. Stat. § 7B-907(b). Instead, he avers generally that “the trial court did not properly find the required facts” and that its “findings do not comply with the requirement of the statute.”
    “It is reversible error for the trial court to enter a permanency planning order that continues custody with DSS without making proper findings as to the relevant statutory criteria [under N.C. Gen. Stat. § 7B-907(b)].” In re M.R.D.C., __ N.C. App. __, __, 603 S.E.2d 890, 892 (2004). However, the order need not "contain a formal listing of the § 7B-907(b)(1)-(6) factors, expressly denominated as such,” provided the district court “make[s] written findings regarding the relevant § 7B-907(b) factors.” In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). The court must make a sufficient quantum of specific, objectively verifiable evidentiary findings to allow meaningful review of its reasoning and its conclusions of law. In re M.R.D.C., __ N.C. App. at __, 603 S.E.2d at 892.
    Inasmuch as the sole focus of respondent's brief is the court's abandonment of the concurrent permanent plan of placing T.S. with the paternal grandmother in Virginia, we infer his intention to challenge the sufficiency of the court's findings under N.C. Gen. Stat. § 7B-907(b)(2), which requires the court to consider “whether legal guardianship or custody with a relative or some other suitable person should be established[.]” The court's findings of fact 3, 4, 5, 6, and 7, detailed above, contain evidentiary findings addressing whether placement of T.S. with thepaternal grandmother would be suitable, including: (1) the paternal grandmother's lack of effort toward establishing a relationship with T.S.; (2) her infrequent contact with respondent; (3) her daughter and granddaughter living with her in a two bedroom house; (4) T.S.'s special needs, which require ongoing care; (5) T.S.'s lack of a relationship with the paternal grandmother or any paternal relative; (6) this case having been before the court for two years; and (7) T.S.'s need for permanence. Because respondent has not assigned error to any of the 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). We hold these evidentiary findings are sufficiently thorough to satisfy the court's burden under N.C. Gen. Stat. § 7B-907(b)(2), and fully support a conclusion that the best interests of T.S., including his “need of permanence” and his developmental needs, were no longer served by pursuing a possible placement with his paternal grandmother. See generally In re J.C.S., 164 N.C. App. at 107, 595 S.E.2d at 161-62. For the foregoing reasons we affirm the district court's order changing the permanent plan for T.S. to adoption only.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***