Converted WP file 041212-1

Appeal by respondent from an order filed 30 March 2004 by Judge George R. Murphy in Lee County District Court. Heard in the Court of Appeals 17 May 2005.

Tron D. Faulk for Lee County Department of Social Services, petitioner-appellee.

Elizabeth Boone for Guardian ad Litem , petitioner-appellee .

Winifred H. Dillon for respondent-appellant.

    BRYANT, Judge.

    R.G.   (See footnote 1) (respondent-father) appeals from a 30 March 2004 order ceasing reunification efforts with respect to his minor child M.T.G. Mother A.J. does not appeal.
    At the time of the permanency planning hearing, M.T.G. was nine years old. He lived with his mother   (See footnote 2) until he was five yearsold and then was sent to live with respondent.
    While living with respondent, M.T.G. began to exhibit psychotic symptoms such as barking like a dog, being aggressive toward family members and eating out of the trash can. As a result respondent and stepmother took M.T.G. to UNC Hospital Psychiatric Unit where he was diagnosed with post traumatic stress disorder. After M.T.G. alleged he had been physically abused by his mother and half-sister, Lee County Department of Social Services (DSS) became involved. M.T.G. was referred to a psychologist , Dr. Robert Aiello, for a Child Mental Health Evaluation. Dr. Aiello observed M.T.G. during September and October 2002, concluding the juvenile “appear[ed] to have been adversely affected by his alleged abuse,” and “is clearly at risk for emotional trauma.”
    At a hearing on a motion for contempt held 1 August 2003 in Harnett County, the trial court ordered respondent to deliver M.T.G. to the custody of DSS. A juvenile petition was filed that same day and M.T.G. was placed in the nonsecure custody of DSS, which placed M.T.G. in a therapeutic foster home.
    At the 5 August 2003 hearing, the trial court adjudicated M.T.G. neglected based on the parties' stipulation. The court ordered the juvenile to remain in the custody of DSS and continuedhis placement in a therapeutic foster home. The trial court further ordered visitation for respondent and A.J., and for respondent to obtain a psychological evaluation and participate in anger management (completed 11/10/03) and parenting classes (completed 10/14/03) . The court ordered DSS to continue reunification efforts.
    At the ninety-day review hearing, the court found respondent parents were making progress toward reunification, but were not yet ready to assume custody of the juvenile and ordered the “goal” for the family to continue to be reunification. A permanency planning review hearing was set for 9 December 2003 at which time, the court ordered DSS to continue custody of M.T.G. In addition, the goal was changed from reunification to a concurrent plan of reunification and placement with a court-approved caretaker.
    At the permanency planning hearing held on 9 March 2004, the trial court found respondent was oppositional and manipulative, and domestic violence and psychological conditions of respondent and the stepmother created an unstable home environment. On 30 March 2004 the trial court signed an order ceasing respondent's reunification efforts with M.T.G., and granting continuing custody of M.T.G. to DSS. Respondent appeals.

    “ 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) (citing In re Eckard, 148 N.C. App. 541, 544, 559 S.E.2d 233, 235 (2002)). The appellate courts are bound by the trial courts' findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary. N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 52 (2003); In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 252-53 (1984). N.C. Gen. Stat. § 7B-907(b) requires a trial court to make written findings on all of the relevant criteria as provided by the statute.   (See footnote 3) N.C.G.S. § 7B-907(b) (2003). In a non-jury trial, the judge has a duty to consider and weigh all the evidence and to determine the credibility of the witnesses and the weight to be given to their testimony. See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (quoting Knutton v. Cofield, 273 N.C. 355, 359, 160S.E.2d 29, 33 (1968)).
    Here, the trial court's order enumerates many findings of fact from which respondent did not assign error. Such unchallenged findings are therefore deemed conclusive on appeal. N.C. Gen. Stat. § 7B-906 (2003); In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984); In re Isenhour, 101 N.C. App. 550, 400 S.E.2d 71 (1991). Respondent however, specifically challenges the following findings of fact:
        11. That the Respondent father and stepmother are continuing their treatment at Lee-Harnett Mental Health for Psychotherapy and they are on . . . medication. There have been recent changes to the stepmother's medication and neither of said parents' conditions have stabilized. The staff at the center stated that Respondent father continues to be very oppositional and manipulative. They stress that sometimes it is difficult to provide services to Respondent because of his anger outbursts.

        12. That the Respondent father and stepmother completed Parenting Classes on October 14, 2003 and they completed Anger Management Classes on November 10, 2003 but their home is not stable because of domestic violence and the manipulative conduct of the Respondent father as seen by the [c]ourt and outlined in the Child Mental Health Evaluation by Dr. [] Aiello and the same is incorporated by reference as findings for this order.

        . . .
        16. That since the juvenile has been in the custody of the Petitioner, the Respondent father and stepmother have made no reasonableprogress for reunification to occur other than what they were told to do by the [c]ourt.

        17. That the [GAL] report, and the same is incorporated by reference as findings for this order, finds that the Respondent father and stepmother's home environment is not a safe and orderly situation for the juvenile.
        . . .

        20. That the Respondent parents have made minimal progress in addressing the issues that led to the juvenile's placement.
    With respect to the trial court's finding of fact number eleven, respondent himself testified to having been diagnosed with clinical depression and post traumatic stress disorder and that he continues to receive the psychotherapy he had been receiving prior to DSS involvement. However, regarding his behavior, the social worker, Ms. Stanback, testified even with medication and psychotherapy, respondent remained argumentative and manipulative, would hang up on her during phone conversations and would walk away from her angrily during their meetings. Ms. Stanback testified visits were “sometimes problematic” as respondent became argumentative if someone “said something he does not agree with.” The trial court also found respondent displayed “ manipulative behavior . . . as seen by the [c]ourt.” The trial court found as fact that on one occasion, respondent admitted he held a knife to his throat and threatened to commit suicide while walking aroundthe house in the presence of another minor child. And, both respondent and stepmother admitted domestic violence charges had been filed against them during the pendency of this action, with the latest incident occurring after respondent had completed Anger Management Classes and after he had changed his medication. There was competent evidence to support finding of fact number eleven.
    With respect to finding of fact number twelve, the petition in this case arose from hearings regarding custody of M.T.G. held on 28 July and 1 August 2003. Respondent was thereby ordered to place M.T.G. in the custody of DSS due to “mental illness, . . . [and] inability to cope with stress on behalf of respondent and stepmother as evidenced by drinking to excess and causing domestic violence in the home and in the juvenile's presence.” Respondent testified in August 2003, the stepmother “came home extremely intoxicated, hit [respondent] in the head with her fist and scratched [respondent] in the head and face with her fingernails.” Another domestic violence incident, where respondent was charged with assault on a female and simple assault, involved the intoxicated stepmother who reported respondent tried to strangle her and communicated threats to kill her. Although the charges relating to that incident were later dropped against respondent, the trial court found respondent had been found guilty of criminal charges of disorderly conduct, resisting a public officer and twocounts of communicating threats since DSS began involvement in the case. Although respondent and stepmother had undergone changes in their medication and completed anger management and parenting classes, respondent admitted to at least one act of domestic violence that occurred even after a change in his medication. There is ample evidence to support finding of fact number twelve.
    Next, respondent challenges findings of fact number sixteen and number twenty that respondent and stepmother had made no reasonable progress toward reunification . This Court has held “[e]xtremely limited progress is not reasonable progress.” In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995). The trial court here found respondent had not made reasonable progress for reunification to occur and only made minimal progress addressing the issues that led to M.T.G.'s placement. In addition to making specific findings of domestic violence occurring at respondent's home, the trial court also made findings as to respondent's inability to cope with stress. Respondent's stepchildren, ages 9 and 13, characterized him as mean, manipulative and vengeful. The trial court found as fact he called his stepchildren “little bitches and whores” comparing one stepdaughter to a prostitute, telling her “if you tied a mattress to your back you could go out on the streets and make a pretty good living.” Findings of fact numbers sixteen and twenty addressrespondent's inability to control his anger which was displayed during incidences of domestic violence and inappropriate abusive verbal outbursts. This is the same conduct that initially led to M.T.G.'s placement in foster care and which conduct has not reasonably improved. These findings are supported by competent evidence.
    Next, respondent argues that the trial court merely incorporated the Guardian ad Litem's report in finding of fact number seventeen that “respondent's household is not safe because of the domestic violence” without having made its own assessment. However, by its own independent observation, the trial court specifically found respondent's home to be unstable because of the domestic violence and the manipulative conduct of respondent “as seen by the trial court.” See In re Brenner, 83 N.C. App. 242, 250, 350 S.E.2d 140, 146 (1986) (for adjudication of neglect, trial court on its own determined “ultimate facts” to find and conclude DSS custody was in the best interest of the juveniles). This finding is further supported by Dr. Aiello's medical report which stated: “[respondent reports M.T.G.] has a history of behavioral problems and continues to sometimes be difficult to manage” and the respondent's “parental influence” is viewed as a “contaminating factor” in M.T.G.'s life. We find this is competent evidence for the trial court to find respondent's home is not safe and orderlyfor M.T.G.

    Respondent next argues the trial court erred in concluding further reunification efforts were futile.
    In a permanency planning hearing which continues custody with DSS, the court must make a finding of fact that a return to a juvenile's home would not be in the juvenile's best interest. N.C. Gen. Stat. § 7B-507(a) (2003); N.C.G.S. § 7B-907(c) (2003).     Specifically, N.C.G.S. § 7B-507(a) states:
         (a) An order placing or continuing the placement of a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order: (1) Shall contain a finding that the juvenile's continuation in or return to the juvenile's own home would be contrary to the juvenile's best interest; (2) Shall contain findings as to whether a county department of social services has made reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined under subsection (b) of this section that such efforts are not required or shall cease; (3) Shall contain findings as to whether a county department of social services should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined or determines under subsection (b) of this section that such efforts are notrequired or shall cease; (4) Shall specify that the juvenile's placement and care are the responsibility of the county department of social services and that the agency is to provide or arrange for the foster care or other placement of the juvenile; and (5) May provide for services or other efforts aimed at returning the juvenile to a safe home or at achieving another permanent plan for the juvenile.

N.C.G.S. § 7B-507(a) (2003). N.C.G.S. § 7B-907(c) states:
            (c) At the conclusion of the hearing, the judge shall make specific findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time. The judge may appoint a guardian of the person for the juvenile pursuant to G.S. 7B-600 or make any disposition authorized by G.S. 7B-903 including the authority to place the child in the custody of either parent or any relative found by the court to be suitable and found by the court to be in the best interest of the juvenile. If the juvenile is not returned home, the court shall enter an order consistent with its findings that directs the department of social services to make reasonable efforts to place the juvenile in a timely manner in accordance with the permanent plan, to complete whatever steps are necessary to finalize the permanent placement of the juvenile, and to document such steps in the juvenile's case plan. Any order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing. If at any time custody is restored to a parent, or findings are made in accordance with G.S. 7B-906(b), the court shall be relieved of the duty to conduct periodic judicial reviews of the placement.N.C.G.S. § 7B-907(c) (2003) . Our Supreme Court has held that for every juvenile case, “[t]he best interest of the child is the polar star.” In re Montgomery, 311 N.C. at 109, 316 S.E.2d at 251 (reversing and remanding this Court's holding, reinstating trial court's order to terminate parental rights). Here, the trial court found as fact:
        21. That it would be against the health and welfare of the juvenile and contrary to his best interest to be returned to the care of the Respondent parents.

        22. That reasonable efforts for reunification shall cease with the Respondent father and stepmother because such 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.

    In this case there was sufficient evidence to support the finding that respondent's house was unstable due to domestic violence; respondent's psychological conditions had not stabilized; and respondent had only made minimal progress to address the conditions that existed for DSS to initially become involved in placement. While the trial court noted respondent had completed the parenting and anger management classes and continued his psychotherapy, the family home remained unstable because of the “domestic violence and manipulative behavior” of respondent. Further, the trial court found that since M.T.G. had been removedfrom the home, he had not had any more psychotic episodes and no longer needed therapeutic care.
    Based on clear and credible evidence, the trial court properly concluded reunification efforts would be futile or inconsistent with the juvenile's health, safety and the need for a safe, permanent home within a reasonable period of time.
    Affirmed.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e) .

Footnote: 1