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