In Re: D.R.M.,S.S.M.,T.D.M., (04-1526) 09/06/2005

IN THE MATTER OF:
D.R.M.                        Wayne County
S.S.M.                        Nos. 03 J 177, 03 J 178,
T.D.M.                            03 J 179

Appeal by respondent mother from orders entered 8 April 2004 by Judge Rose V. Williams in Wayne County District Court. Heard in the Court of Appeals 17 August 2005.

E.B. Borden Parker, for petitioner-appellee Wayne County Department of Social Services.

Timothy I. Finan, for petitioner-appellee Guardian ad Litem.

The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant.

TYSON, Judge.

S.W. (“respondent”) appeals from orders entered 8 April 2004 terminating her parental rights to her minor children, D.R.M., S.S.M., and T.D.M. (collectively, the “children”). We affirm.

    On 10 October 2002, respondent placed her children with Ms. Geraldine Braswell (“Braswell”), a friend of the family who is now seeking to adopt the children. On 21 October 2002, DSS filed juvenile petitions alleging the children were neglected. Thepetitions alleged respondent was unable to provide stability for her children because she had no home or income. On the date of the petitions, respondent was living with a friend in Fremont who had no room in his home for the children. Respondent had previously lived with her grandmother in Fremont, moved to live with her mother, returned to her grandmother's home, and then moved into her friend's home.
    On 19 December 2002, respondent admitted her children were neglected and dependent and the court adjudicated the children to be neglected and dependent. The court ordered respondent to submit to drug testing, psychological and psychiatric evaluations, follow all treatment and therapy recommendations, and maintain stable housing.
    On 23 March 2003, the court found respondent had failed to comply with its order, had not seen the children recently, and the children had been living with Braswell for one year and three months. The court ordered visitations between respondent and the children to occur at Braswell's discretion . Respondent looked for other housing in Goldsboro through Courtyard. Respondent was unemployed at the time of the hearing .
    On 8 May 2003, the court made findings of fact that it was contrary to the welfare of the children to be returned to respondent. The court ordered adoption as its permanency plan andrelieved DSS of reunification efforts. DSS filed to terminate respondent's parental rights.
    On 18 March 2004, respondent's parental rights were terminated and the permanency plan for the children became adoption. Respondent appeals.

Respondent argues the trial court abused its discretion by: (1) changing the permanency placement plan to adoption six months after the children where removed; (2) finding no reasonable efforts toward reunification were required of DSS; (3) finding as fact reasonable efforts of reunification had been made when no evidence was proffered to support such a conclusion; (4) ordering respondent's visitation rights at Braswell's discretion ; (5) finding as fact respondent's visitations were not restricted and her visits were inconsistent and not substantial when visits were solely within Braswell's discretion; (6) ordering DSS to find more money to assist Braswell, but never ordering DSS to assist respondent in caring for her children and failing to recognize DSS gave more assistance to Braswell than to respondent; (7) finding the termination of respondent's parental rights to be in the best interest of the children after respondent had completed much of the case plan and was making reasonable efforts to regain custody of her children; (8) finding as fact respondent did not have a stableresidence when she had been living in the same home for over one year; and (9) finding as fact respondent exerted little effort to be reunited with her children.

Respondent's first seven assignments of error pertain to orders entered other than the 8 April 2004 orders appealed from. The dispositional and permanency plan for the children was ordered on 5 June 2003. The subsequent permanency planning review hearings reaffirmed DSS's plan and the trial court's 5 June 2003 order. Respondent could have appealed from the trial court's prior orders but has failed to do so. See In re Padgett, 156 N.C. App. 644, 577 S.E.2d 337 (2003) (appeal from permanency planning orders); see also N.C. Gen. Stat. § 7B-1001 (2003). We are bound by the findings of fact and conclusions of law in the 5 June 2003 order. See Kelly v. Kelly, 167 N.C. App. 437, 443, 606 S.E.2d 364, 369 (2004) (“When an order is not appealed, it becomes the law of the case.” (quoting Johnson v. Johnson, 7 N.C. App. 310, 313, 172 S.E.2d 264, 266 (1970)); see also Hayden v. Hayden, 178 N.C. 259, 263, 100 S.E. 515, 517 (1919) (“This decree was not appealed from, and is therefore valid and binding in every respect.”) .
Because respondent's first seven assignments of error do not pertain to the 8 April 2004 orders she appealed from, theseassignments of error are not properly before us and are dismissed. N.C.R. App. P. 10(a) (2004).

Respondent's assignments of error properly before us are: (1) “whether the court's findings of fact are based upon clear, cogent and convincing evidence;” and (2) “whether the findings support the conclusions of law” in the orders. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 828, 840 (2000) (quotation omitted), disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). We review the trial court's conclusions of law de novo. Scott v. Scott, 157 N.C. App. 382, 385, 579 S.E.2d 431, 433 (2003) (citing Browning v. Helff, 136 N.C. App. 420, 423, 524 S.E.2d 95, 97-98 (2000)).

    Respondent argues the trial court erred in finding as fact she did not maintain a stable place for the children to live.
    Respondent testified she had been living in her current home for one and one-half years and did not have enough room for her children. When asked if she had any other potential places for her and the children to live, respondent testified her mother had found a place for her but she could not afford the rental payments. Respondent testified she was on a waiting list for housing. On cross-examination when asked where respondent would take thechildren if the judge awarded her custody, respondent testified she would go to her grandmother's house. Respondent also testified she was not welcome to move back in with her grandmother. Later, respondent testified she would go to her sister's house if given custody . Respondent's sister is unemployed, receives $180.00 per month in child support, and lives in a three bedroom home with her three children of her own. Respondent further testified the only housing assistance she sought was through Courtyard.
    DSS presented clear, cogent, and convincing evidence respondent had not procured a stable home. The trial court did not err in finding respondent failed to procure a stable home for the children . This assignment of error is overruled.

    Respondent argues the trial court erred in finding as fact respondent exerted little effort to have her children reunited with her.
    On 23 March 2003, the court found respondent had not completed the psychiatric and psychological evaluations previously ordered and she had not visited with the children recently. Respondent rarely visited the children and when she did, the children were present at the grandmother's home. Respondent testified she never attempted to visit the children while they were in the custody of DSS.    Respondent began attending mental health evaluations in September 2003. Respondent testified she had not completed any drug screens as ordered by the court. Respondent was not working at the time of the hearing and since October 2003, respondent had applied for one job. Respondent testified she saw her children every week when Braswell would allow her until the trial court ordered visitation to cease.
    DSS presented clear, cogent, and convincing evidence that respondent failed to put forth reasonable efforts to have her children reunited with her. This assignment of error is overruled.

    A termination of parental rights proceeding involves a two step process under N.C. Gen. Stat. §§ 7B-1109 and 7B-1110. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc. rev. denied, 358 N.C. 543, 599 S.E.2d 42 (2004). Different evidentiary standards are applied at each phase. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986) . “The petitioner seeking termination must show by clear, cogent, and convincing evidence” that one or more of the grounds specified by N.C. Gen. Stat. § 7B-1111(a) to terminate parental rights exists. Id.; see N.C. Gen. Stat. § 7B-1109 (2003); N.C. Gen. Stat. § 7B-1111 (2003). “It is within the trial court's discretion to terminate parental rights upon a finding that itwould be in the best interests of the child.” In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406-07 (2003) (citing In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001)). On appeal, “[w]e review the trial court's decision to terminate parental rights for an abuse of discretion.” In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (citing In re Mitchell M., 148 N.C. App. 483, 490, 559 S.E.2d 237, 242, temporary stay allowed, 355 N.C. 349, 561 S.E.2d 891, rev'd on other grounds, 356 N.C. 288, 570 S.E.2d 212 (2002)).
    Here, the court found it would be in the best interests of the children to terminate respondent's parental rights and allow the children to be adopted by Braswell. In deciding the placement of the children, the trial court took into consideration: (1) Braswell was selected by the parents as a proper foster placement for the children; (2) Braswell had maintained physical custody of the children for over one year; (3) the children had bonded with her; (4) the children had adjusted well and thrived at Braswell's home; and (5) Braswell expressed the desire to adopt all three children.
    Respondent has failed to show the trial court abused its discretion in finding and concluding it was in the best interests of the children to terminate respondent's parental rights. This assignment of error is overruled.

    DSS met its burden of proving by clear, convincing, and cogent evidence that respondent failed to provide stable housing for her or her children and that respondent made no reasonable efforts to be reunited with her children. The trial court did not abuse its discretion in finding and concluding termination of respondent's parental rights was in the best interests of the children. The trial court's orders are affirmed.
    Affirmed.
    Judges MCCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

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