An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1702

NORTH CAROLINA COURT OF APPEALS

Filed: 1 November 2005

IN THE MATTER OF:

K.N.O. and A.R.O.,
        Minor Children.

                        Catawba County
                        Nos. 03 J 33 and 03 J 34

    Appeal by respondent from order entered 16 August 2004 by Judge C. Thomas Edwards in District Court, Catawba County. Heard in the Court of Appeals 14 September 2005.

    J. David Abernethy for petitioner-appellee Catawba County      Department of Social Services.

    Janet K. Ledbetter for respondent-appellant.
    

    McGEE, Judge.

    The Catawba County Department of Social Services (DSS) filed a juvenile petition on 22 January 2003 alleging that M.O. (respondent) and T.O. (the children's father) abused and neglected their two daughters, K.N.O. and A.R.O. (the children). The trial court adjudicated the children as abused and neglected in an order filed 7 November 2003 and entered its dispositional order on the same date.
    The initial permanency planning hearing was held during two sessions on 16 December 2003 and 13 January 2004, and the permanency planning order was filed on 13 February 2004. The trial court ordered "[t]hat the permanent plan for the . . . children shall be a concurrent plan of adoption or return to either themother or the father." A permanency review hearing was set for 4 May 2004 but was continued until 29 June 2004 because respondent's initial counsel had a scheduling conflict in federal court. Subsequently, on 28 May 2004, the trial court removed respondent's initial counsel and appointed Jennifer Eaker (Ms. Eaker) to represent respondent. The trial court then continued the 29 June 2004 permanency review hearing until 2 July 2004 to give Ms. Eaker an opportunity to review respondent's file.
    The trial court conducted the permanency review hearing on 2 July 2004. DSS introduced its permanency review report (DSS report) into evidence at the hearing. The guardian ad litem (GAL) also introduced a permanency review report (GAL report) into evidence. Neither DSS, the GAL, nor respondent presented sworn testimony at the hearing; however, Ms. Eaker spoke on behalf of respondent. Ms. Eaker began her address to the trial court as follows:
        MS. EAKER: Yes, sir. On behalf of [respondent], I think the most important thing today is that she has been clean and sober since April 26 and working at her psychological --
        
        THE COURT: Of what year?
        
        MS. EAKER: This year, Your Honor.

        THE COURT: All right.

        MS. EAKER: 2004. I apologize.
        Looking at [respondent's] psychological, . . . the last sentence said that [respondent's] ability to improve self- control, gain insight into the reason that she drinks and (inaudible) are essential to [respondent] being able to parent these children. Once [respondent] (inaudible) thepsychological evaluation, she has now started [counseling] with Roger Moore . . . at Family Guidance[.]

        THE COURT: I'm sorry?

        MS. EAKER: It's scheduled for July 7, her first appointment with Roger Moore.

        . . . . 

Following an extensive discussion with the trial court, Ms. Eaker presented her legal arguments. Ms. Eaker concluded her presentation by asking the trial court to allow DSS to continue its efforts toward reunifying the children with respondent.
    The trial court entered its permanency review order on 16 August 2004. The trial court made fifteen specific findings of fact, most of which are pertinent to this appeal:
        1.    That the following persons were present for a pretrial conference held on Thursday, June 17, 2004: J. David Abernethy, Staff Attorney for [DSS]; Donna Davis and Linda Smith, Social Workers for [DSS]; Tamara Hayman, [GAL] Program Supervisor; and the placement providers.

        2.    A.R.O., born February 22, 2000, . . . and K.N.O., born June 23, 2002, . . . are the . . . children herein. Their parents are [M.O. and T.O.]. The Petition herein was filed on January 22, 2003, and a nonsecure custody order issued at that time. The . . . children were adjudicated abused and neglected on September 10, 2003. In the disposition announced September 23, 2003, they were continued in the custody of [DSS]. At the permanency planning hearing, the [trial] court adopted a concurrent plan of reunification and adoption. The . . . children have been in the same foster/adopt home since June 21, 2003, and have been residents of North Carolina since birth. No relative placements aresuitable.

        3.    The findings of fact in the adjudication and dispositional orders and the permanency planning order are incorporated herein by reference. Certain findings are repeated herein for ease of reference.

        4.    K.N.O. falls within the diagnosis of Battered Child Syndrome. K.N.O. had healed posterior left rib fractures at ribs 6, 7, 8, 9, and 10, and also fractures at the right seventh rib and the right tenth rib[]. These fractures were sustained prior to January 18, 2003. The right seventh rib fracture was older than the other rib fracture[]. Such rib fractures in a child less than a year old are highly specific for child abuse, and are caused by squeezing of the torso by a far larger person, such as an adult or teenager. [Respondent's] and [the children's father's] explanations of how the injuries might have been sustained were not consistent with the injuries themselves.

        . . . 

        6.    Ms. Julie Day and Ms. Sarah Shelley, licensed clinical social workers, diagnosed A.R.O. as having Post-Traumatic Stress Disorder, rather than Reactive Attachment Disorder or the prior diagnosis of Attachment Disorder.

        7.    After a visit with [respondent] on June 10, 2004, A.R.O. had a bowel movement in her pants and smeared feces in the bathroom. After the visit, the children had finger nail polish and red markings on their arms and legs. After a visit in April 2004, A.R.O. had a cross drawn on her forehead and K.N.O. had drawings on her feet and hands.

        8.    K.N.O. is doing well in her placement and is very bonded to her foster parents.

        9.    [Respondent] is still residing with her father, Larry McDaniel. She has beenunemployed throughout the case.

        10.    Today the court received a copy of the psychological evaluation of [respondent] signed December 22, 2003 by Gordon Cappelletty, Licensed Psychologist, and Janine [Szymanski], Licensed Psychological Associate. Included in its findings were that [respondent] reported that she had drunk alcoholic beverages as late as a week prior to the date of her December 9, 2003 interview, and that she continued to drink despite negative consequences including losing custody of [the] children and dissolution of her marriage. [Respondent] stated she did not verbalize understanding that her alcoholism had affected her ability to parent, stating she drank only while the children were asleep, and the report further states she did not seem to understand being hung over and tired during the day after staying up late the night before would be likely to affect her patience, her ability to maintain consistency, and her ability to respond to the children's needs. The report further states that [respondent] recognized the acute need for help and she was contemplating obtaining inpatient substance abuse treatment.

        11.    [Respondent] lost her driver's license due to an incident of driving while intoxicated in January of 2004 for which she was convicted in March of 2004. [Respondent] was scheduled to begin a twenty-eight day inpatient substance abuse treatment program on February 8, 2004, but did not attend the program. [Respondent] did obtain a substance abuse assessment in June of 2004 and attended her first substance abuse class on June 16, 2004. [Respondent] has scheduled counseling but it has not yet begun.

        12.    The social worker requested a drug test from each of the parents on April 22, 2004. Neither parent took the requested drug test.

        . . . 
        15.    [Respondent] has not obtained effective treatment for her alcoholism. The [children's] father has relapsed into cocaine use and is incarcerated. Neither has become able to provide a safe home for the . . . children eighteen months after the . . . children were removed from their possession. Considering all of the foregoing facts in this order, including those in prior orders incorporated herein by reference, it is unlikely that either of the . . . children will be able to return to the home of either parent within six months. Continued efforts to reunify the . . . children with either parent clearly would be futile and would be inconsistent with the . . . children's health, safety, and need for a safe, permanent home within a reasonable period of time. No barriers to adoption are known. Adoption, rather than legal guardianship or other statutorily allowed permanency plan, is now the best permanency plan for the . . . children. The . . . children's placement is appropriate. DSS's efforts are as stated in its report.

In support of its order, the trial court also incorporated as findings of fact the facts contained in the DSS and GAL reports. The trial court further incorporated the findings of fact contained in the adjudication and dispositional orders and the permanency planning order into the permanency review order. The trial court then ordered DSS to "cease to make efforts to return the . . . children to the home of either parent." The trial court also ordered "[t]hat the permanency plan for the . . . children shall be adoption." Respondent appeals.

I.

    Respondent first argues "[t]he trial court committed reversible error when it failed to conduct a proper permanencyplanning hearing statutorily mandated by N.C.G.S. § 7B-907 by accepting the unsworn statements of trial counsel and court reports as the only evidence presented at the hearing." Essentially, respondent argues that a trial court must receive sworn testimony at a permanency review hearing and cannot rely solely upon DSS and GAL written reports in making its order. Respondent's argument lacks merit.
    At a permanency review hearing, a trial court "may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen. Stat. § 7B-907(b) (2003). Pursuant to N.C. Gen. Stat. § 7B-901 (2003), a trial court may consider written reports relating to the needs of the juvenile at a dispositional hearing. Our Court has held that "[t]he written reports of social workers and psychiatrists, and other written material in the court's file are competent evidence in a dispositional or review hearing in juvenile cases." In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638 (1983), aff'd as modified by 311 N.C. 586, 319 S.E.2d 567 (1984).
    Respondent relies upon In re D.L., 166 N.C. App. 574, 603 S.E.2d 376 (2004) in arguing that DSS and GAL reports are not sufficient competent evidence upon which to base the findings of fact in a permanency review order. However, respondent misreads In re D.L. In re D.L. is one of the latest in a line of cases in which our Court has held that, while a trial court may consider allwritten reports submitted in connection with juvenile proceedings, a trial court may not broadly incorporate the reports as its only findings of fact or use them as a substitute for the trial court's independent review. In re M.R.D.C., 166 N.C. App. 693, 698, 603 S.E.2d 890, 893 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005); In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004); In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003). Our Court stated in In re D.L. that
        [t]he adoption of the DSS summary into the Order [was] insufficient to constitute competent evidence to support the trial court's findings of facts.

            As no evidence was presented by either DSS or [the respondent mother] regarding the permanency plan, the trial court's findings of fact are unsupported. Without any evidence to support its findings, the trial court erred in its conclusions of law.
In re D.L., 166 N.C. App. at 583, 603 S.E.2d at 382 (emphasis in original).
    In the present case, the DSS and GAL reports were competent evidence introduced at the permanency review hearing. The trial court incorporated facts contained in the DSS and GAL reports and prior orders as findings of fact in its permanency review order. The trial court also made fifteen additional findings of fact. Unlike In re D.L., the trial court in this case did not broadly incorporate the facts in the reports as its only findings of fact or use the reports as a substitute for its own independent review. Therefore, the trial court did not err.
II.
    Respondent next argues the trial court erred by failing to make specific and ultimate findings of fact in compliance with N.C. Gen. Stat. § 7B-907 and N.C. Gen. Stat. § 7B-507. We disagree. Where a juvenile is not returned home at the conclusion of a permanency review hearing, N.C.G.S. § 7B-907(b) requires a trial court to
        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.
    In the present case, the trial court made sufficient findings of fact in compliance with N.C.G.S. § 7B-907(b). "A permanency planning order need not 'contain a formal listing of the G.S. § 7B-907(b)(1)-(6) factors, expressly denominated as such . . . aslong as the trial court makes findings of fact on the relevant G.S. § 7B-907(b) factors[.]'" In re M.R.D.C., 166 N.C. App. at 696, 603 S.E.2d at 892 (quoting In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005)). A trial court must "'find[] the ultimate facts essential to support the conclusions of law'" regarding the relevant N.C.G.S. § 7B-907(b) factors "'through processes of logical reasoning from the evidentiary facts[.]'" In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161 (quoting In re Harton, 156 N.C. App. at 660, 577 S.E.2d at 337).
    In the present case, the trial court made the requisite N.C.G.S. § 7B-907(b)(1) findings. In finding fifteen, the trial court used language substantially similar to the statutory language by finding that "it [was] unlikely that either of the . . . children [would] be able to return to the home of either parent within six months." Additionally, findings of fact ten, eleven, twelve and the remainder of finding fifteen are relevant to N.C.G.S. § 7B-907(b)(1) and explain the basis for the trial court's findings as follows. Finding ten states that "[respondent] had drunk alcoholic beverages as late as a week prior to the date of [respondent's] December 9, 2003 interview, . . ." and that "[respondent] did not verbalize understanding that her alcoholism had affected her ability to parent[.]" Finding eleven states that "[respondent] lost her driver's license due to an incident of driving while intoxicated in January of 2004 for which she was convicted in March of 2004." Finding twelve states that respondentfailed to take a requested drug test on 22 April 2004. Finally, finding fifteen states that "[respondent] [had] not obtained effective treatment for her alcoholism." Moreover, finding fifteen states that neither respondent nor the children's father had "become able to provide a safe home for the . . . children eighteen months after the . . . children were removed from their possession." The trial court also complied with the requirements of N.C.G.S. § 7B-907(b)(2) in finding of fact two when it found that "[n]o relative placements [were] suitable."
    The trial court further made sufficient findings pursuant to N.C.G.S. § 7B-907(b)(3) by specifically finding that "[n]o barriers to adoption [were] known. Adoption, rather than legal guardianship or other statutorily allowed permanency plan, [was] now the best permanency plan for the . . . children." Findings of fact 6, 7, 8, 10, 11, 12 and 15 are also relevant to the N.C.G.S. § 7B-907(b)(3) criterion.
    The trial court also complied with N.C.G.S. § 7B-907(b)(4) through findings two, eight and fifteen. The trial court found that "[t]he . . . children [had] been in the same foster/adopt home since June 21, 2003, . . ." and that "K.N.O. [was] doing well in her placement and [was] very bonded to her foster parents." The trial court also found that "[t]he . . . children's placement [was] appropriate."
    Finally, the trial court complied with N.C.G.S. § 7B- 907(b)(5), which requires the trial court to make findings regarding "[w]hether the county department of social services hassince the initial permanency plan hearing made reasonable efforts to implement the permanent plan for the juvenile[.]" N.C.G.S. § 7B-907(b)(5). The phrase "reasonable efforts" is defined as follows:
        The diligent use of preventive or reunification services by a department of social services when a juvenile's remaining at home or returning home is consistent with achieving a safe, permanent home for the juvenile within a reasonable period of time. If a court of competent jurisdiction determines that the juvenile is not to be returned home, then reasonable efforts means the diligent and timely use of permanency planning services by a department of social services to develop and implement a permanent plan for the juvenile.

N.C. Gen. Stat. § 7B-101(18) (2003). The trial court initially adopted a concurrent permanent plan of reunification and adoption. Therefore, the trial court was required to make findings at the permanency review hearing as to whether DSS had made reasonable efforts to implement the plan. The trial court made sufficient findings regarding DSS's reasonable efforts through findings 7, 10, 11, 12, and 15. Finding seven relates to DSS's efforts to promote respondent's visitation with the children. Finding ten sets out the determinations of respondent's psychological evaluation, which was facilitated by DSS. Finally, findings eleven, twelve and fifteen detail DSS's efforts toward procuring substance abuse treatment for respondent.
    The trial court also complied with N.C.G.S. § 7B-507(a) (2003), which requires:
        An order placing or continuing the placement of a juvenile in the custody or placementresponsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order:
        
        . . .

            (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[.]
As with N.C.G.S. § 7B-907(b), it is not necessary for a permanency review order to contain a formal listing of the N.C.G.S. § 7B-507 criteria. See In re M.R.D.C., 166 N.C. App. at 696, 603 S.E.2d at 892. The determination of whether DSS has made reasonable efforts to prevent placement of children out of their parents' home is a conclusion of law. In re Helms, 127 N.C. App. 505, 510-11, 491 S.E.2d 672, 675-76 (1997). An analysis of the trial court's findings under N.C.G.S. § 7B-507(a)(2) parallels the analysis of N.C.G.S. § 7B-907(b)(5) discussed above. The trial court complied with N.C.G.S. § 7B-507(a)(2) through findings 7, 10, 11, 12, and 15, which address the reasonable efforts undertaken by DSS to prevent placement of the children. The trial court then specifically concluded that "[DSS] has exercised reasonable efforts to prevent or eliminate the need for continued placement out of the parents' home."
III.

    Respondent next argues the findings of fact are not supported by sufficient evidence. Our review of a permanency review order islimited to whether the findings of fact are supported by competent evidence in the record and whether the findings support the conclusions. In re J.C.S., 164 N.C. App. at 106, 595 S.E.2d at 161. Findings of fact are conclusive on appeal if they are supported by competent evidence. In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003).
    Respondent specifically assigns error to findings 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, and 15. Respondent asserts that findings one, two, three and four merely restate the history of the case and respondent thereby abandons her sufficiency argument with respect to those findings. Respondent does, however, challenge the sufficiency of the evidence to support the trial court's finding that "[n]o relative placements [were] suitable." Our review of the record on appeal shows support for this finding. In a DSS Dispositional Hearing Report dated 8 September 2003, which was made part of the case files, DSS addressed placement of the children:
        A variety of relative placement options have been explored by [DSS]. Two home studies were initiated, but Krissina Dale and Todd McDaniel have now reported they do not want to be considered for placement.
        
        SW Beaver had an appointment on May 7, 2003 to complete a home study on Shannon Collins, sister to [respondent]. Ms. Collins has a daughter with Ring 13, a genetic disorder, and would be unable to provide care for the girls.

Therefore, finding two is supported by competent record evidence.
    Respondent asserts that findings six, seven and eight are improperly based on hearsay statements in the DSS and GAL reports. The trial court received those reports into evidence at the 2 July2004 permanency review hearing. The trial court incorporated the facts in those reports into its permanency review order as findings of fact. Additionally, the trial court used the reports to formulate its own findings of fact in its order. Pursuant to N.C.G.S. § 7B-907(b), discussed above, a trial court "may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." Therefore, the trial court's consideration and use of the DSS and GAL reports was not in error.
    Respondent also challenges finding ten. Respondent asserts finding ten is not supported by competent evidence because the psychological evaluation was not introduced into evidence at the permanency review hearing and was not incorporated into the permanency review order. However, the trial court stated in finding ten that "[t]oday the court received a copy of the psychological evaluation of [respondent] signed December 22, 2003 by Gordon Cappelletty, Licensed Psychologist, and Janine [Szymanski], Licensed Psychological Associate." Furthermore, counsel for respondent asked the trial court to consider respondent's psychological evaluation by quoting from the report at the hearing. The GAL report also partially supports finding ten: "[Respondent] did report at the start of her psychological the first week of December that she continues to consume alcohol. [Respondent's] psychological reveals an individual who is alcohol dependent. She lied to the evaluator, Janine Szymanski when shereport[ed] she was in substance abuse treatment in December of 2003." Accordingly, finding ten is supported by competent record evidence.
    Respondent next challenges finding eleven. Respondent first argues:
        Finding of Fact No. 11 that [respondent] lost her driver's license due to an incident of driving while intoxicated is based on statements made by attorneys at the Permanency Review hearing relying on the GAL Court Report which indicates that the record is attached, but it was not included in the Record on Appeal.

As discussed above, N.C.G.S. § 7B-907(b) allows a trial court to consider hearsay evidence in a permanency review hearing. This finding of fact is based upon the GAL report and is thus supported by competent evidence. Respondent also argues that the other statements in finding eleven came solely from statements made by respondent's counsel and are therefore not supported by competent evidence. Respondent is mistaken, except as to the last sentence of finding eleven. The last sentence reads: "[Respondent] has scheduled counseling but it has not yet begun." This statement comes from the comments of respondent's counsel at the hearing. However, this finding is not necessary to the ultimate determination that DSS's efforts to reunify the children with respondent should cease and the permanent plan should be adoption. The remainder of finding eleven is adequately supported by the DSS and GAL reports.
    Respondent abandons her assignment of error as to finding twelve but makes a general challenge to the GAL report on theground that it was not signed by the GAL District Administrator, and therefore does not constitute credible or competent evidence. The GAL report was signed by the GAL Program Supervisor and the Attorney Advocate. Pursuant to N.C.G.S. § 7B-907(b), the trial court found the report to be reliable and relevant to the hearing through its incorporation of the report into its order. Therefore, respondent's argument lacks merit.
    Finally, respondent challenges finding fifteen. Respondent abandons her sufficiency argument with respect to finding fifteen and argues that it does not comply with the requirements of N.C.G.S. § 7B-907(b). Respondent's argument fails for the reasons discussed in the previous section.
IV.

    Respondent lastly argues the trial court erred by removing respondent's counsel and appointing substitute counsel one month before the permanency review hearing, thereby depriving respondent of effective assistance of counsel. A parent is entitled to counsel in proceedings under article 9 of the Juvenile Code. N.C. Gen. Stat. § 7B-602(a) (2003). Furthermore, the right to counsel implicitly guarantees a right to effective assistance of counsel. In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 70 (2002). "To prevail on a claim of ineffective assistance of counsel, [respondent] 'must show that counsel's performance was deficient and the deficiency was so serious as to deprive [respondent] of a fair hearing.'" Id. (quoting In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 679 (1989)).    Here, respondent argues that Ms. Eaker, her counsel was "woefully unprepared, and obviously unfamiliar with [respondent's] case." However, the transcript shows that respondent's counsel made a reasoned argument to the trial court and was able to respond to the trial court's questions. Furthermore, the trial court continued the permanency review hearing from 29 June 2004 to 2 July 2004 to give respondent's counsel time to prepare. Respondent next makes a general argument that her counsel made "prejudicial statements that revealed information to the trial [court] that cast [respondent] in [an] unfavorable light[.]" However, respondent does not specifically challenge any of her counsel's statements. Upon review of the transcript, respondent's counsel did not reveal any damaging information that was not already included in the DSS and GAL reports already before the trial court. Respondent also claims her representation was deficient because her counsel failed to object to the trial court's questioning of trial counsel. However, respondent does not allege that she was deprived of the opportunity to present testimony at the hearing. Respondent apparently chose to have her counsel speak on her behalf, and respondent cannot now assert error as a result of that choice. Finally, respondent has failed to demonstrate how any alleged deficiencies in counsel's performance deprived her of a fair hearing. Accordingly, we overrule this assignment of error.
    Affirmed.
    Judges McCULLOUGH and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***