An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-180


Filed: 15 November 2005


    A.L. a/k/a A.H., and
    L.L. a/k/a L.H.,
                        Transylvania County
        Minor Children.        No. 01 J 46
                             01 J 47

    Appeal by respondent-father from order entered 17 August 2004 by Judge Laura J. Bridges in Transylvania County District Court. Heard in the Court of Appeals 22 September 2005.

    No brief filed for petitioner-appellee.

    Carol Ann Bauer for respondent-appellant.

    ELMORE, Judge.

    Ronnie Joe Lail (respondent) is father to A.L. and L.L. He appeals from a 17 August 2004 dispositional order ceasing his visitation with the children, ceasing the reunification efforts of the Department of Social Services (DSS), and allowing DSS to proceed with termination of his parental rights.
     DSS's involvement with A.L. and L.L. began on or about 25 February 2003, when the district court issued an order granting DSS non-secure custody of the children. Periodic interim review hearings continued the children's custody with DSS. Visitation was initially unsupervised, but after DSS received an anonymous report that the children's mother had visited them while they were with respondent, in violation of a court order, the district courtordered visitation only to occur with DSS supervision. On 7 June 2004 the district court conducted a review hearing over the matter involving A.L. and L.L. This hearing had been continued twice from 22 March 2004. Based on the evidence and testimony at the hearing, the district court entered a two-page order on 17 August 2004, from which respondent appeals.
    Upon review of the record, it is not certain from what type of hearing the 17 August 2004 order arises, whether it is an order pursuant to N.C. Gen. Stat. § 7B-906 arising from an interim review hearing, or an order pursuant to N.C. Gen. Stat. § 7B-907 arising from a permanency planning hearing.   (See footnote 1)  Further, absent a brief from the petitioner, DSS, we cannot be certain what arguments might have been raised in support of the order. Nonetheless, we hold that regardless of whether the order was issued pursuant to section 7B- 906 or 7B-907, the district court's findings do not support its conclusions.
    Initially, we note that the district court's order is a final order, and thus is appealable. See N.C. Gen. Stat. § 7B-1001 (2003) (orders of disposition after an adjudication of abuse, neglect, or dependency are appealable final orders); In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 136-37 (2003) (an orderthat ceases reunification and allows termination of rights is a dispositional order that is appealable). Also, respondent has only taken exception to finding of fact number two in the district court's order, thereby making the remaining six findings binding on this Court. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (“Findings of fact to which a respondent did not object are conclusive on appeal.”) (citing In re Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982)). Yet, since respondent's assertion is that the findings fail to support the conclusions, rather than the evidence failing to support the findings, exception to them is unnecessary.
    The district court, in part, found that:
        4. The father, Ronnie Lail, has completed anger management therapy and has displayed positive changes in his behavior. His mother, Faye Lail, testified that she has a home with two bedrooms and is able to devote herself on a full-time basis to care of the boys, that she has a “great” relationship with the boys and that she has seen nothing inappropriate in Ronnie Lail's behavior and actions with his children.

        6. Sylvia Petit of [DSS] testified that [the children's mother] told her she “lies to get Ronnie in trouble”, that, separately, each parent is capable as a parent, that [the mother's] support system has been inconsistent but that Ronnie's support system has remained stable throughout.

These two findings are the sum total of those addressing respondent. The other findings address the mother's actions and state that DSS has made reasonable efforts “to achieve a permanent plan.” There are no findings that address any of the criteria in N.C. Gen. Stat. § 7B-906(c), including whether efforts to reunitethe children with respondent would be futile or inconsistent with their safety. See N.C. Gen. Stat. § 7B-906(c)(1) (2003). There are also no findings that address any of the necessary findings located in N.C. Gen. Stat. § 7B-907(b), save for a perfunctory determination that DSS has made reasonable efforts. See N.C. Gen. Stat. § 7B-907 (2003).
    Without the necessary findings required by the plain language of the Juvenile Code, we cannot agree with the district court's conclusions that it is in the best interests of the children to cease reunification and visitation, and allow DSS to pursue termination of respondent's parental rights. The only substantive findings regarding respondent were that he had complied with aspects of his family plan, had a stable support system, and undergone positive behavioral changes. Thus, the district court's findings are inconsistent with its conclusions and are statutorily insufficient to support its order. See In re J.S., 165 N.C. App. 509, 511-13, 598 S.E.2d 658, 660-61 (2004) (cursory two-page order that lacked specific ultimate facts and failed to include findings addressing sections 7B-907(b) and 7B-507(b) was insufficient for appellate review); In re Ledbetter, 158 N.C. App. 281, 285-86, 580 S.E.2d 392, 394-95 (2003) (findings did not comport with 7B-907(b) and failed to address why the court had determined the courses of action it did, therefore remand was necessary).
    Accordingly, we reverse the 17 August 2004 order and remand the matter to the district court for additional findings consistent with statutory requirements.    Reversed and remanded.
    Judge HUDSON concurs.
    Judge SMITH concurs in result only.
    Report per Rule 30(e).

Footnote: 1
     The order states the hearing was conducted pursuant to a motion for review, and according to the record a motion for a permanency planning hearing was filed on 25 July 2004 and the hearing noticed for 16 August 2004. However, the end result of the 7 June 2004 hearing was to cease reunification and file for termination of parental rights, an outcome more consistent with an initial or subsequent review of a permanency planning order.

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