An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1143

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

In THE MATTER OF:
    K.N.N.
    

                        Iredell County            
                            No. 01 J 205

    On writ of certiorari by respondent-mother to review order filed 17 July 2002 by Judge Julia Gullett in Iredell County District Court. Heard in the Court of Appeals 10 May 2005.

    Attorney Advocate Holly M. Groce for Guardian ad Litem and Wendy M. Watts for Iredell County Department of Social Services, for petitioner-appellees.

    Robert W. Ewing for respondent-mother.

    BRYANT, Judge.

    K.A.N.   (See footnote 1)  (respondent-mother) appeals a permanency planning order filed 17 July 2002, ordering Iredell County Department of Social Services (DSS) to continue to be relieved of further efforts toward reunification with either parent, and changing the plan of care from a concurrent plan of placement with a relative and termination of parental rights (TPR)/adoption to a sole plan of guardianship with a relative.
    On 13 September 2001, DSS filed a juvenile petition allegingthe minor child K.N.N. was a neglected juvenile in that she did not receive proper care, supervision or discipline from her parents, guardian, custodian or caretaker; and she lived in an environment injurious to her welfare. Specifically, the petition alleged K.N.N. was exposed to a pattern of domestic violence and drug abuse. At the time of the filing of the petition, DSS had received a combination of five child protective services reports regarding K.N.N., the first report being received when the minor child was one month of age.
    On 9 November 2001, K.N.N. was adjudicated neglected and the district court conducted a dispositional hearing. Both parents were ordered to report to the child support enforcement agency to establish support for K.N.N.; ordered to comply with terms of the family services case plan dated 25 September 2001; and were granted supervised visitation with the minor child. The family services case plan specifically required both parents to provide a stable home; complete parenting classes; receive substance abuse evaluations and follow all recommendations; refrain from alcohol and controlled substances and not associate with those who use such substances; submit to random drug screening; submit wage stubs and receipts of bills paid to DSS; and refrain from physical violence towards one another and not associate with others with histories of violence. In addition, the father was ordered to complete a domestic violence program, and the mother was ordered to complete an anger management program. The district court mandated a concurrent plan of placement with a relative and reunification.    A subsequent review hearing was held on 7 February 2002, where the court specifically found the mother had not paid child support; had obtained a substance abuse assessment but had not followed through with the recommended treatment; had taken only one drug test; had obtained employment at at least two locations, one of which had provided a recommendation for the mother; had completed domestic violence classes but continued to engage in domestic violence with the father; and had maintained her home since November 2001. Based on the fact K.N.N. had been in DSS custody since 13 September 2001, as well as the mandate of the court that the parents show significant progress and their failure to do so, the court further found there was no likelihood the minor child could be placed back in the home in a reasonable time and therefore further reunification efforts would be futile. By order filed 7 February 2002, the court ordered DSS be relieved of further efforts toward reunification and the plan of care be placement with a relative and TPR/adoption.
    A subsequent review hearing was held on 14 March 2002, where the court specifically found both parents had been offered a variety of counseling services, parenting class referrals, domestic violence class referrals, and drug screening, but had done almost nothing to utilize those services, with the mother missing numerous scheduled appointments related to her substance abuse and mental health, and neither parent paying child support. The court continued to relieve DSS of further efforts toward reunification and the plan of care remained placement with a relative andTPR/adoption.
    Another review hearing was held on 13 June 2002, where the court specifically found the mother had made some progress with regard to employment; had completed some domestic violence classes; maintained housing; had reported to the child support enforcement agency to establish a support obligation; had attended parenting classes; and had some negative drug testing results. The court, however, found substance abuse was one of the main reasons the juvenile petition was filed, and yet significant progress had not been made in that area. Further, the court found the mother allowed the father to move in with her despite the fact he had not made any progress in correcting those conditions which led to the involvement of DSS and the removal of the minor child from the home.
    The court found K.N.N. had been placed in DSS custody since 13 September 2001, and even taking into consideration the progress the mother made, her progress was slow regarding domestic violence and substance abuse issues. The court found the minor child could not be safely placed back in the home within a reasonable time, and by order filed 17 July 2002, ordered DSS continue to be relieved of further efforts toward reunification with either parent and the plan of care was changed to a sole plan of guardianship with a relative.
    Respondent-mother appealed from the 17 July 2002 order.

_________________________

    Respondent-mother presents several issues on appeal related tothe sufficiency of the evidence and findings of fact in the 17 July 2002 order, and whether those findings support the conclusion of law that reunification efforts would be futile and not in the best interest of the minor child. Based on case law established in In re J.C.S., 164 N.C. App. 96, 595 S.E.2d 155 (2004), we hold respondent has waived her right to appeal these issues.
    Our Court in J.C.S. addressed the following:
        Second, respondent asserts the order entered after the 16 July 2002 permanency planning review hearing allowing DSS to cease reunification efforts contained insufficient findings of fact. However, in her notice of appeal filed in connection with the instant appeal, respondent indicates that she appeals only from the “Order entered in Catawba County Juvenile Court on Tuesday, December 3, 2002, ordering a Permanent Plan of Adoption for her two minor children[.]” The order allowing DSS to cease reunification efforts entered following the 16 July 2002 permanency planning review hearing is, therefore, not part of the present appeal. See N.C.R. App. P. 3(d) (“The notice of appeal . . . shall designate the judgment or order from which appeal is taken . . . .”)[.] Our review of the record does not reveal that respondent ever appealed from the order ceasing reunification efforts entered following the 16 July 2002 permanency planning review hearing, although she had every opportunity to do so, and her time to do so has long since run. Accordingly, we decline to further exercise our Rule 2 authority and review this order.

J.C.S., 164 N.C. App. at 104, 595 S.E.2d at 160. In the instant case, reunification efforts were ceased at the 7 February 2002 review hearing when the court found:
        based on the fact the child has been placed in DSS custody since 9/13/02, as well as the mandate of the court at the last review to show significant progress and the parents' failure to do so, the court will find thatthere is no likelihood that the minor child can be placed back in the home in a reasonable time and that reunification efforts would be futile.

The plan of care was changed to concurrent placement with a relative and TPR/adoption, and DSS was relieved of reunification efforts. This order modified respondent's custodial rights, however, respondent did not appeal from this order.
    Subsequently, a review hearing was held on 14 March 2002, where the plan of care remained as a concurrent placement with a relative and TPR/adoption and DSS continued to be relieved of reunification efforts. This order modified respondent's custodial rights, however, respondent did not appeal from this order.
    At the 13 June 2002 review hearing, the plan was modified to placement with a relative and DSS continued to be relieved of reunification efforts. Respondent appealed from an order from this hearing filed 17 July 2002.
    “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, based on case law as established by J.C.S., this panel is bound to refrain from addressing the sufficiency of the findings of fact contained in the 17 July 2002 order.
    Respondent further argues because the court did not make the requisite written findings as specified by N.C. Gen. Stat. § 7B-907(b)(2) and (b)(4), this order must be reversed.    N.C. Gen. Stat. § 7B-907(b) states if at the conclusion of the permanency planning hearing the court determines the children are not to return home, the court must make written findings of fact regarding the following relevant factors:
        (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.

N.C. Gen. Stat. § 7B-907(b) (2003).
    Here, the court concluded the permanent plan for K.N.N. should be changed to placement with a relative and DSS continued to be relieved of reunification efforts. While the permanency planning review order does not contain a formal listing of the factorsenumerated in N.C. Gen. Stat. § 7B-907(b), we conclude the court nevertheless did consider and make written findings regarding the relevant factors. Specifically, in Finding of Fact Five, the court found the minor child's return home is unlikely within a reasonable time, and home studies had been completed to determine whether placement with a relative should be established, and what appropriate steps were necessary to transition the child to placement. The court also ordered respondent to pay ninety-five dollars per month in support and established visitation with the child. These findings are sufficient to meet the criteria established pursuant to N.C. Gen. Stat. § 7B-907(b)(2).
    As to criteria established pursuant to N.C. Gen. Stat. § 7B- 907(b)(4), the court incorporated in Finding of Fact Five, DSS and guardian ad litem summaries that home studies showed the potential guardians to be suitable placement guardians, and placement with the aunt and uncle should be established. The court went on to find efforts toward reunification with the mother should not continue because substance abuse was one of the main reasons the juvenile petition was filed, yet significant progress had not been made in that area. Further, the court found the mother allowed the father to move in with her despite the fact he had not made any progress in correcting those conditions which led to the involvement of DSS and the removal of the minor child from the home.
    The findings of fact support the conclusion of law that reunification efforts would be futile. See In re Eckard, 148 N.C.App. 541, 544, 559 S.E.2d 233, 235 (2002), disc. review denied, 356 N.C. 163, 568 S.E.2d 192 (2002) (stating appellate review of a permanency planning review order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law).
    Affirmed.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).


Footnote: 1
     Initials have been used throughout to protect the identity of the juvenile.

*** Converted from WordPerfect ***