An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1328


Filed: 19 July 2005

K.L.S.                        McDowell County    
D.L.C.                        Nos. 01 J 88, 89 & 90


    Appeal by respondent from order entered 20 May 2004 by Judge Laura J. Bridges in District Court, McDowell County. Heard in the Court of Appeals 18 May 2005.

    Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for petitioner-appellee.

    James C. Callahan for Guardian ad Litem.

    Charlotte A. Wade for respondent-appellant.

    McGEE, Judge.

    Respondent appeals from a permanency planning order placing custody and guardianship of his children, D.L.C. and C.M.C. (the children), with their maternal grandparents. The children's mother, T.L., does not join in this appeal. The order also places K.L.S., T.L.'s child with another man, with the maternal grandparents. The placement of K.L.S. is not at issue in this appeal.
    The evidence at the permanency planning review hearing tended to show the following. The children were taken into custody by McDowell County Department of Social Services (DSS) on 1 November 2001. At the time, the children were residing with T.L. inMcDowell County and respondent was residing in New York. The children were adjudicated neglected juveniles on 9 November 2001.     A home study was completed by Oswego County Department of Social Services in New York (Oswego DSS) on 2 June 2003 in order to determine whether placement of the children with respondent would be appropriate. Oswego DSS did not approve placement with respondent, citing respondent's failure to provide documentation showing the completion of parenting classes and his failure to follow the recommendations of his alcohol/substance abuse evaluation.
    A permanency planning hearing was held on 29 April 2004 at which DSS recommended that the maternal grandparents receive legal guardianship and custody of the children. T.L. testified that she believed it was in the best interests of the children for them to live with their maternal grandparents. Respondent testified that he wanted custody of the children. He stated that he completed a series of six parenting classes in New York on 14 May 2003. He also admitted that he did not follow the recommendations of his alcohol/substance abuse evaluation, but that he was willing to do so in order to satisfy DSS requirements for reunification with his children.
    In an order filed 20 May 2004, the trial court made the following conclusion of law:
        6.    In accordance with the provisions of [N.C.] Gen Stat §7B-507(b)(1), it continues to be futile or inconsistent with the best interest of the . . . children to require [DSS] to provide supportive services and makereasonable efforts to reunify the . . .  children with any of the respondents.

The trial court thereafter entered the following order:
        1.    The custody and guardianship of [the children] is placed with [the maternal grandparents].

        . . . .
        3.    [The maternal grandparents] are appointed as guardians of [the children], in accordance with N.C. Gen. Stat. §7B-600, and said guardians shall not be required to post bond.

        . . . .
        7.    The permanent plan of care for the . . .  children is placement of their custody and guardianship with the maternal grandparents[.]

From this order, respondent appeals.
    Respondent argues that the trial court's findings of fact did not comply with N.C. Gen. Stat. § 7B-907(b), which requires:
        At the conclusion of [a permanency planning] hearing, if the juvenile is not returned home, the [trial] court shall consider the following criteria and make written findings regarding those that are relevant:

            (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). "It is reversible error for the trial court to enter a permanency planning order that continues custody with DSS without making proper findings as to the relevant statutory criteria[,] . . . even if 'the evidence and reports in this case might have supported the determination of the trial court.'" In re M.R.D.C., 166 N.C. App. 693, 695-96, 603 S.E.2d 890, 892 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005) (quoting In re Ledbetter, 158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003)). Although the trial court is not required to make a formal listing of the N.C. Gen. Stat. § 7B-907(b) factors, the trial court must make findings of fact that are relevant to the factors. In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). When reviewing the evidence, the trial court must use "'processes of logical reasoning[.]'" In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (quoting Appalachian PosterAdvertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988)). The trial court must then "find the ultimate facts essential to support the conclusions of law." In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003). Appropriate findings of fact are necessary for our Court to be able "to review the decision and test the correctness of the judgment." Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
    Mere recitations of testimony are not findings of fact. In re O.W., 164 N.C. App. 699, 703, 596 S.E.2d 851, 854 (2004); In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). "In a nonjury trial, it is the duty of the trial [court] to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." Id. at 480, 539 S.E.2d at 365. A trial court's recitation of the evidence does not determine the ultimate findings of fact that are pertinent to a case. See O.W., 164 N.C. App. at 703-04, 596 S.E.2d at 854; and Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365-66.
    The trial court's only "finding of fact" that is relevant to respondent's appeal states:
        9.    [Respondent] testified that he periodically called the . . . children from New York but that he was unable to afford to come to North Carolina to visit with the children. [Respondent] testified that he has been living with his girlfriend for the last year and a half, and that she has two children. [Respondent] testified that she [sic] is not living at the same residence where the prior home study was conducted, but now lives in a single wide mobile home. [Respondent] did not bring to court a home study on his current residence. [Respondent] is the father of [D.L.C.] and [C.M.C.], but is not the father of [K.L.S.]. [Respondent] testified that all three children have lived together all of their lives, and that it could be detrimental to the children to separate them from each other. [Respondent] testified that he wished to have all three children live at his residence. [Respondent] acknowledged that he did not comply with the substance abuse assessment recommendation to attend outpatient treatment and AA/NA meetings, denying he ever had a substance abuse problem. [Respondent] was offered by the social worker an opportunity to have weekend visits with his children, as he advised the social worker that he could not come to visit with the children during weekdays due to his work schedule and the distance involved. However, [respondent] has never called the social worker to schedule a weekend visit. The children have reported to the social worker that [respondent] has told them, on several occasions, that he was coming to see them but then did not come to visit. [Respondent] denied he made these statements to the children.

    This "finding of fact" is merely a recitation of the testimony and evidence presented at the hearing. It does not demonstrate that the trial court engaged in "processes of logical reasoning" or determined the ultimate facts in the case. See Harton, 156 N.C. App. at 660, 577 S.E.2d at 337. Since the trial court did not make proper findings of fact, we cannot conduct a review of the trial court's order and must remand for appropriate findings of fact.
    We note that the trial court, in finding of fact number twelve, incorporated the facts from a DSS report as further findings of fact. A trial court may consider information from anysource "which will aid . . . the [trial] court's review." N.C. Gen. Stat. § 7B-907(b); see also In re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003). However, the trial court may not use a DSS report "as a substitute for its own independent review." M.R.D.C., 166 N.C. App. at 698, 603 S.E.2d at 893. "[T]he trial court may not delegate its fact finding duty [and] should not broadly incorporate . . . written reports from outside sources as its findings of fact." In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004). As a result, we find that the trial court's incorporation of the DSS report is not a sufficient finding of fact to support the permanency planning review order.
    Although we remand to the trial court for appropriate findings of fact, we elect to review the remaining assignment of error addressed in respondent's brief. Respondent argues that he received ineffective assistance of counsel prior to the permanency planning hearing from which he appeals. Respondent contends that he repeatedly attempted to contact his counsel but never received a response.
    A parent has the right to counsel when a petition alleges that a juvenile is abused, neglected or dependent. N.C. Gen. Stat. § 7B-602(a) (2003). "Implicit in this right to counsel is the right to effective assistance of counsel." In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 70 (2002). In order for a respondent to prove ineffective assistance of counsel, the respondent "must show that counsel's performance was deficient and the deficiency was so serious as to deprive [the respondent] of a fair hearing." In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 679 (1989).
    A respondent has failed to prove ineffective assistance of counsel when the respondent does not specify the alleged shortcomings of counsel. In re B.P., ___ N.C. App. ___, ___, 612 S.E.2d 328, 332 (2005). In B.P., the respondent alleged ineffective assistance of counsel in that her "counsel was difficult to contact, failed to call additional witnesses, and made no motions before the trial court." Id. at ___, 612 S.E.2d at 332. Noting that the respondent "failed to specify what motions should have been made and what evidence could have been, but was not, presented[,]" we held that the respondent failed to prove ineffective assistance of counsel since she did not establish that any alleged deficiency deprived her of a fair hearing. Id. at ___, 612 S.E.2d at 332.
    Similarly, we find in this case that respondent has not established that he was deprived of a fair hearing. Respondent has not specified in what manner his counsel's deficiencies deprived him of a fair hearing. Respondent testified at length on his own behalf and explained to the trial court his situation and desire to have custody of the children. Respondent received a fair hearing.
    We deem abandoned those assignments of error not addressed in respondent's brief. N.C.R. App. P. 28(b)(6).
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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