IN THE MATTER OF:
M.S., Catawba County
A Minor Child. No. 01 J 243
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.
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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.
Affirmed.
Judges WYNN and TIMMONS-GOODSON concur. Report per Rule 30(e).
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