An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1153


Filed: 19 July 2005

     M.S.,                            Catawba County
     A Minor Child.                    No. 01 J 243

    Appeal by respondent father from order entered 28 January 2004 by Judge Burford A. Cherry in Catawba County District Court. Heard in the Court of Appeals 6 June 2005.

    Katharine Chester for respondent-appellant.

    Florence M. McCloskey for petitioner-appellee Catawba County Department of Social Services.

    MARTIN, Chief Judge.

    Respondent appeals from an order entered 28 January 2004 ceasing efforts to reunify him with his minor child, M.S., who was nine years old at the time the order was entered. For the reasons stated below, we affirm the order of the trial court.
    M.S. was placed in non-secure custody on 3 October 2001, based on allegations that M.S. was abandoned and that “his parent, guardian, or custodian, due to physical or mental incapacity and the absence of an appropriate alternative child care arrangement, is unable to provide for his care of [sic] supervision.” At the adjudication and disposition hearing on 27 November 2001, respondent requested a guardian ad litem for himself and a continuance to conduct a psychological evaluation, but the courtfound that grounds did not exist to appoint a GAL and that continuation was not necessary.
    The trial court found:
        13. That from May, 2001 to October 2, 2001, the Department of Social Services worked with the mother and [respondent] regarding issues including unstable housing and finances. The situation digressed when the mother left the home in mid to late September of 2001. [Respondent] had difficulty coping with the events that occurred after the mother left and this culminated in the removal of the children from the home.

        14. That [respondent] admits his problem with controlling his temper.

        . . . .

        16. That the mother left the child, [M.S.], and abandoned him to his father, [respondent]. This alone, is not found by the Court to be neglect or dependency. However, when combined with the other facts hereinabove, [M.S.] was neglected.

The trial court further found that the mother had abandoned the children, leaving the family home on 23 September 2001 without a forwarding address. On 1 October 2001, there was no food in the home, and despite approval for emergency food stamps, respondent did not accept DSS's offer to assist with activation of the food stamps card, but made alterative arrangements on 2 October 2001. In addition, M.S.'s half-brother, E.E., was “an adjudicated sex offender” and had unsupervised contact with M.S., which constituted neglect of M.S. The trial court further found “that some efforts towards reunification should continue” despite the “serious issues and problems with reunification in this case” due in part torespondent's relocation to Knoxville, Tennessee. Respondent returned before the next review hearing.
    Review hearings were held on 19 February 2002, 14 May 2002, 3 September 2002, 29 October 2002, 21 January 2003, 18 February 2003, 16 May 2003, 8 July 2003, 5 August 2003, and 28 October 2003. The permanent plan for M.S. remained reunification with respondent, but M.S. remained in therapeutic foster care while receiving treatment for behavioral problems, and his father obtained employment, appropriate housing, parenting and anger management classes, substance abuse and mental health treatment. M.S. was returned to his father's home on 27 November 2002, and at the 21 January 2003 review hearing, custody was returned to respondent, provided he continue to work with the treatment team.
    At the 18 February 2003 review hearing, respondent was ordered to seek services for his anger management issues due to an argument with his step-daughter, and subsequently DSS, concerning M.S.'s care. The court determined it was in M.S.'s best interest to remain in his father's home because the court found respondent had completed numerous services and M.S. was not in imminent danger. The trial court noted, however, “[t]hat should the Father fail to follow this Court's Order, the minor child may be removed from his home immediately.” By the 16 May 2003 hearing, custody and placement responsibility were returned to DSS; respondent had lost his employment and admitted to DSS workers that he had used marijuana. He also denied the guardian ad litem access to M.S. However, the permanent plan remained reunification.    After the respondent failed a series of random drug screens, M.S. was moved to a therapeutic foster home in June 2003. At the 8 July 2003 review, the trial court continued the hearing on the issue of reunification as the permanent plan in order to hear M.S.'s therapist's opinion on “whether it is appropriate that such efforts should cease.” After receiving the therapist's recommendation and as a result of respondent's compliance “overall with the recommendations of the Court and the treatment team,” reunification remained the permanent plan at the 5 August 2003 hearing.
    At the 28 October 2003 hearing, however, the permanent plan was changed to adoption, and the trial court ordered reunification efforts to cease after making the following findings:
        8. The Father has become more and more verbally harassing towards the Social Worker to the point that the Catawba County Department of Social Services has held him to the agreement he made on July 15, 2003 that verbal communication would end if it became harassing. This occurred on September 12, 2003. Since then, all communication has been through the mail and through the Father's Attorney. At this time, the Father continues to leave harassing messages. The Father is not complying with the recommendations of the Court, the treatment team and the current case plan.

The court found that the child returned from visits with his father “with a very negative attitude that takes several hours to dissipate” and that for M.S.'s most recent visit, he was taken to work with respondent and engaged in “moving metal and other miscellaneous tasks,” which the court found “presents a liability for” M.S. Moreover, respondent “demonstrated inappropriateexpressions of anger,” tested positive for marijuana, and refused to comply with other random drug screens. From this order, respondent appeals.
    Respondent first argues that the order of the trial court should be reversed because it failed to appoint a guardian ad litem for M.S. Respondent bases this argument on the fact that the appointment of the GAL does not appear in the record on appeal. This Court permitted the record on appeal to be amended on 9 February 2005 to include a copy of the appointment made on 3 October 2001; therefore, this argument is without merit.
    Respondent's second argument is that the trial court erroneously denied his request for his own guardian ad litem and continued to ignore evidence concerning his mental condition, which would warrant the appointment of a GAL. We cannot agree. A guardian ad litem must be appointed:
        (1) Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile;

N.C. Gen. Stat. § 7B-602(b)(1)(2003) (emphasis supplied). This “does not require the appointment of a guardian ad litem in every case where dependency is alleged, nor does it require the appointment of a guardian ad litem in every case where substance abuse or some other cognitive limitation is alleged.” In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216, disc. review denied,358 N.C. 543, 599 S.E.2d 46 (2004). Appointment of a guardian ad litem under section 7B-602(b)(1) is required when “(1) the petition specifically alleges dependency; and (2) the majority of the dependency allegations tend to show that a parent or guardian is incapable as the result of some debilitating condition listed in the statute of providing for the proper care and supervision of his or her child.” Id.
    In this case, the petition alleged dependency as a result of respondent's eviction, inability to pay rent, lack of food, M.S.'s unsupervised contact with E.E. and the fact that respondent “sent a note to [M.S.]'s school that included language [of] a suicidal ideation.” Other than this mention of suicide, the record before us does not contain evidence of respondent's mental incapacity as defined by the statute, even considering the evidence regarding respondent's anger management courses and family therapy with M.S. The trial court did not err in determining that N.C. Gen. Stat. § 7B-602(b)(1) did not require that a guardian ad litem be appointed for respondent. This assignment of error is overruled.
    In his third argument, respondent contends the trial court lacked subject matter jurisdiction because custody had been returned to him on 21 January 2003. Therefore, he argues, subsequent actions by DSS and orders of the trial court were nullities. Respondent cites In re Dexter, 147 N.C. App. 110, 115, 553 S.E.2d 922, 925 (2001), for the proposition that parents are “returned to their original, pre-adjudication status as parents” and entitled to autonomy once their custody is restored. InDexter, however, the trial court removed the children from their mother's custody and granted it to their father, who resided in another state. As part of its order, the trial court terminated its jurisdiction. Id. at 113, 553 S.E.2d at 924. “When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first.” N.C. Gen. Stat. § 7B-201 (2003); see also In re J.S., 165 N.C. App. 509, 514, 598 S.E.2d 658, 661 (2004). Here, the trial court never terminated its jurisdiction over M.S., and DSS continued to assist M.S. and his family, even while he was in the physical custody of respondent. This assignment of error is overruled.
    Respondent's fourth argument is that the trial court made inadequate findings of fact, not supported by competent evidence, which did not support the court's conclusions of law. Respondent contends the trial court erroneously incorporated the reports of the social worker and GAL rather than making findings of its own. Respondent argues that this case is analogous to In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004), where this Court reversed and remanded, holding that a cursory two-page order, incorporating a DSS report as a finding of fact, was insufficient to provide meaningful appellate review. The analogy is inaccurate and we reject his argument.
    The trial court's findings of fact, if supported by competent evidence, are binding on appeal, even if there is evidence tosupport a contrary conclusion. Id. “Appellate 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 can consider all written reports and materials. J.S., 165 N.C. App. at 511, 598 S.E.2d at 660.
    While the trial court order in the present case notes that the court “received into evidence court reports prepared by the Social Worker and the Guardian ad Litem” and incorporated those facts as findings of fact, the trial court's order contained additional findings of fact regarding respondent's drug use, his anger management issues, its effect on M.S., the efforts that had been made without consistent improvement, his refusal to work with DSS, and respondent's inability to act in the best interest of the minor child. The court found that “the continued impact of these emotional dynamics is unhealthy and is not improving,” and efforts towards reunification would be futile and inconsistent with M.S.'s need for permanence. These findings of fact support the trial court's conclusion that reunification efforts should cease and that the permanent plan should be changed to adoption. Accordingly, this assignment of error is overruled.
    Fifth, respondent maintains that the trial court lacked sufficient evidence to enter an order ceasing reunification efforts and failed to require DSS to take reasonable efforts at reunification. DSS may be ordered to end reunification effortsduring a review hearing if the trial court makes written findings of fact that:
        (1) Such [reunification] efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time;

H.W., 163 N.C. App. at 445, 594 S.E.2d at 215(quoting N.C. Gen. Stat. § 7B-507(b) (2003)). As noted above, the trial court made the required finding that reunification efforts would be futile. We hold that these findings are supported by competent evidence and thus, this assignment of error is overruled.
    Finally, respondent contends the trial court should be reversed because its order was entered eighty-five days after the review hearing, despite the statutory requirement that “[a]ny order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing.” N.C. Gen. Stat. § 7B-907(c) (2003). While we agree there was error in the late entry of the permanency planning order, respondent has not demonstrated that he was prejudiced thereby. In re E.N.S., 164 N.C. App. 146, 153, 595 S.E.2d 167, 172, disc. review denied, 359 N.C. 189, 606 S.E.2d 903-04 (2004) (holding that where respondent could not demonstrate prejudice, reversal simply because of untimely filing would only further delay a custody determination). This assignment of error is overruled. For the forgoing reasons, the order of the trial court is affirmed.
    Judges WYNN and TIMMONS-GOODSON concur.    Report per Rule 30(e).

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