Appeal by respondent-appellant from order entered 3 January
2005 by Judge Rose Vaughn Williams in District Court, Wayne County.
Heard in the Court of Appeals 14 November 2005.
No brief filed for petitioner-appellee Wayne County Department
of Social Services.
Annick Lenoir-Peek for respondent-appellant father.
Winifred H. Dillon for respondent-appellee mother.
The Wayne County Department of Social Services (DSS) filed a
petition dated 6 March 2003 alleging K.J.H. to be an abused,
neglected, and dependent juvenile. At an adjudication hearing on
26 June 2003, K.J.H. was adjudicated abused, neglected, and
dependent. The trial court placed K.J.H. in the custody of his
paternal grandfather and ordered supervised visitation with
respondent-father and respondent-mother (collectively the parents).
The trial court conducted three review hearings between September
2003 and March 2004. Pursuant to the review hearings, the trial
court awarded custody of K.J.H. to respondent-father and grantedmore liberal supervised visitation with respondent-mother.
Pursuant to a permanency planning hearing held 15 July 2004, the
trial court entered a permanency planning order on 16 August 2004
(the permanency planning order) which continued custody with
respondent-father and continued supervised visitation with
respondent-mother. Respondent-father appealed to this Court. We
affirmed the order of the trial court. See In re K.J.H., ___ N.C.
App. ___, ___ S.E.2d ___ (2005) (COA05-132) (unpublished).
While that appeal was pending with our Court, the trial court
conducted a review hearing on 4 November 2004. Pursuant to the
review hearing, the trial court entered an order on 3 January 2005
(the review order) continuing custody with respondent-father and
continuing supervised visitation with respondent-mother. The terms
of respondent-mother's supervised visitation were identical to the
terms of the permanency planning order, with one exception: the
trial court changed the supervising party from maternal
grandparents to "maternal grandparents  or their appropriate
adult designee." The trial court concluded as a matter of law that
there was "no need for further reviews by the Court in [the]
matter." The trial court ordered that the attorneys and the
guardian ad litem (GAL) be relieved from representation, and
ordered the matter "removed from the active calendar of the Wayne
County Juvenile Court." Respondent-father appeals.
Before addressing the merits of respondent-father's arguments,
we first address respondent-mother's motion to dismiss the appeal. In her motion to dismiss, respondent-mother contends that the
review order from which respondent-father appeals is not an
appealable order within the definition of N.C. Gen. Stat. § 7B-
1001, and therefore his appeal is interlocutory.
N.C. Gen. Stat. § 7B-1001 (2003) establishes the right to
appeal from a final order in a juvenile case, and defines a final
order as the following:
(1) Any order finding absence of
(2) Any order which in effect determines the
action and prevents a judgment from which
appeal might be taken;
(3) Any order of disposition after an
adjudication that a juvenile is abused,
neglected, or dependent; or
(4) Any order modifying custodial rights.
N.C.G.S. § 7B-1001. Respondent-mother contends that the review
order does not meet any of the statutory definitions of a final
order. We disagree. We find that the review order is a final
order under subparagraph (2) because it is an order "which in
effect determines the action and prevents a judgment from which
appeal might be taken[.]" N.C.G.S. § 7B-1001(2).
The review order released the attorneys and the GAL and
ordered that the matter be "removed from the active calendar of the
Wayne County Juvenile Court." In so ordering, the trial court
effectively closed the case and terminated its jurisdiction over
the matter. See In Re P.L.P., ___ N.C. App. ___, ___, 618 S.E.2d
241, 243 (2005) (holding that jurisdiction ceased where a trial
court ordered that the GAL and the attorneys were "'released fromfurther responsibility in [the] matter and [the] juvenile file
[was] hereby closed.'"); see also N.C. Gen. Stat. § 7B-201 (2003)
("When the court obtains jurisdiction over a juvenile, jurisdiction
shall continue until terminated by order of the court[.]"). Since
jurisdiction was terminated, the review order effectively
determined the action and prevented a judgment from which appeal
might be taken. Therefore, it was an appealable final order under
N.C. Gen. Stat. § 7B-1001(2). Cf. In re B.N.H., 170 N.C. App. ___,
611 S.E.2d 888, disc. review denied, 359 N.C. 632, 615 S.E.2d 865
(2005) (holding that a permanency planning order was not a final
order under N.C. Gen. Stat. § 7B-1001(3) where the order was an
initial order and merely repeated the previous directives of the
trial court); In re B.P., ___ N.C. App. ___, 612 S.E.2d 328 (2005)
(dismissing as interlocutory an appeal from a temporary order that
set a date for a future review of the permanency plan for two of
the appellant's children); In re Laney, 156 N.C. App. 639, 577
S.E.2d 377 (2003) (dismissing as interlocutory an appeal from a
temporary order which continued the matter for final disposition at
a later date). We therefore deny the motion to dismiss and address
the merits of respondent-father's appeal.
Respondent-father presents no argument for his assignment of
error ten, and it is deemed abandoned pursuant to N.C.R. App. P.
28(b)(6). Moreover, assignments of error two, three, four, and
five pertain to the permanency planning order that this Court
affirmed in the 1 November 2005 unpublished opinion. See In re
K.J.H. Therefore, we review the four assignments of error thatpertain to the review order and that are argued by respondent-
father on appeal: whether the trial court erred in (I) entering the
review order more than thirty days after the hearing; (II) making
findings of fact not supported by competent evidence; (III) finding
and concluding it was in K.J.H.'s best interest to grant
respondent-mother visitation; and (IV) awarding respondent-mother
visitation supervised only by the maternal grandparents.
Respondent-father first argues that the trial court committed
"prejudicial and reversible error" by entering the review order on
3 January 2005, more than thirty days after the 4 November 2004
Any order from a permanency planning review hearing shall be
entered no later than thirty days following the completion of the
hearing. N.C. Gen. Stat. § 7B-907 (2003).
(See footnote 1)
In the present case,
the order was entered two months after the hearing. Clearly, the
trial court erred by violating N.C.G.S. § 7B-907. However, a trial
court's violation of statutory time limits in a juvenile case isnot reversible error per se
Rather, a party must show prejudice
arising from the delay in order to warrant reversal. In re C.J.B.
___ N.C. App. ___, 614 S.E.2d 368 (2005).
A review of our recent cases on point
exemplifies that the need to show prejudice in
order to warrant reversal is highest the fewer
number of days the delay exists. And the
longer the delay in entry of the order beyond
the thirty-day deadline, the more likely
prejudice will be readily apparent.
. at ___, 614 S.E.2d at 370 (internal citations omitted)
(reversing an order that was entered five months after a hearing
terminating parental rights where the appellant alleged prejudice,
including delay in the appellate process, a "sense of closure" for
the juveniles, and the loss of records and transcripts); see also
In re T.L.T.
, ___ N.C. App. ___, 612 S.E.2d 436 (2005) (holding
that a seven-month delay was reversible error where the delay
prejudiced the respondent, the juvenile, the foster parents, and
the potential adoptive parents); In re L.E.B.
, 169 N.C. App. 375,
610 S.E.2d 424, disc. review denied
, 359 N.C. 632, 616 S.E.2d 538
(2005) (holding that a six-month delay was reversible error
the present case,
respondent-father's only allegations of prejudice
are that the trial court's error caused him to delay his appeal to
this Court by one month, and thereby allowed respondent-mother to
visit with K.J.H. while an appeal could have been pending. In
light of this Court's prior determinations on this issue, we are
not persuaded that sufficient prejudice befell either respondent-
father or K.J.H. to warrant a finding of reversible error. The
two-month delay between the hearing and entry of the order does notamount to reversible error by the trial court. This assignment of
error is overruled.
Respondent-father next argues that the trial court erred by
making findings of fact not supported by competent evidence.
Respondent-father assigns error to the following findings of fact:
8. That in March, 2003, [K.J.H.] was harmed
while in the care of both parents.
9. That [K.J.H.] was premature and had to
stay in the hospital for three weeks
10. That [K.J.H.] was colicky and difficult
to comfort when he was released to the
parents from the hospital.
11. That the mother returned to work
approximately seven weeks after the birth
of [K.J.H.] when the father was still
unemployed and the father took care of
[K.J.H.] while the mother worked and that
the time period of the injuries to
[K.J.H.] appear to correlate with this
12. That [K.J.H.] was also left with various
family members during the time his
injuries could have occurred.
. . . .
16. That the criminal charge [against
respondent-mother] has not been tried and
it is not expected to be tried in the
17. That since the July Court date, the
overnight visits conducted by the mother
have been favorable and have gone well.
. . . .
22. That according to psychological testing,
neither parent has a significant problem
at this time.
23. That neither parent appears to be violent
nor has a criminal record of violence.
24. That the State has recently offered
[respondent-mother] a misdemeanor plea
for assault, which the mother refused to
. . . .
26. That it takes [three and one-half] hours
for the mother to get from her home to
Wayne County where [K.J.H.] is residing.
Despite this distance, the mother has
traveled so that visits could take place.
She has also traveled this distance to
comply with the treatment ordered by the
27. That a Court has never ruled that the
mother has done anything wrong to cause
injuries to [K.J.H.]
28. That the mother admitted to law
enforcement officers that she had caused
injury to [K.J.H.] after she was told
that [K.J.H.] would stay in foster care
until someone reported to [DSS] how the
29. That the mother has recanted this
admission on the basis that it was only
made to keep [K.J.H.] from going into
30. That [K.J.H.] is safe with the mother at
. . . .
32. That it is in the best interest of
[K.J.H.] to have visitation with the
33. That the mother's visits can be
supervised by [the maternal grandparents]
as previously ordered.
. . . .
36. That [the mother] is a fit and proper
person to have visitation with [K.J.H.]under the terms set out herein.
Respondent-father presents no argument for findings 9, 10, 27,
and 29, and so abandons this assignment of error as to those
N.C.R. App. P. 28(b)(6). Finding 32 appears in the
order both as a finding of fact and as a conclusion of law to which
respondent-father assigns error. Finding 32 should properly be
labeled a conclusion of law, and we will treat it as such.
Carpenter v. Brooks
, 139 N.C. App. 745, 752, 534 S.E.2d 641, 646,
disc. review denied
, 353 N.C. 261, 546 S.E.2d 91-92 (2000).
Accordingly, we will address finding 32 in the next section of this
opinion in which we review the trial court's conclusions of law.
For the same reason, we will also address finding 36 as a
conclusion of law in the next section. Id
We now address those findings of fact which respondent-father
argues were not supported by competent evidence. A trial court's
findings of fact are conclusive on appeal when they are supported
by some competent evidence. In re C.E.L.
, ___ N.C. App. ___, ___,
615 S.E.2d 427, 430 (2005). If supported by some competent
evidence, the findings are conclusive even if some evidence
supports findings to the contrary. Id
Finding 8 is supported by competent evidence from the medical
report dated 6 March 2003 (the medical report), the DSS report
dated 3 April 2003 (the DSS report), and the GAL report dated 31
March 2003, each of which disclosed that K.J.H. suffered injuries
while in the legal custody of both parents who shared primary child
care responsibilities. Respondent-father assigns error to that part of finding 11
that states that K.J.H.'s injuries correlated with the time period
in which respondent-mother was at work and respondent-father
provided primary care for K.J.H. Finding 11 is supported by
respondent-mother's psychological evaluation and the medical
report. The psychological evaluation reports that respondent-
father provided primary care for K.J.H. while respondent-father was
unemployed. According to the medical report, the examining
physician was not able to determine the exact time frame in which
K.J.H.'s injuries occurred, but noted that because there were so
many broken bones of "different ages, . . . that [K.J.H.] was
" by a caretaker.
This evidence supports the
trial court's finding that "the time period of [K.J.H.'s] injuries
to correlate" with the time in which respondent-father
was unemployed. (emphasis added) Moreover, finding 11 is not
necessary to the trial court's ultimate determinations that
respondent-father should retain custody of K.J.H. and that it was
in K.J.H.'s best interest to have supervised visitation with
Finding 12 is supported by the medical report, the DSS report,
and respondent-mother's psychological evaluation, each of which
stated that family members helped care for K.J.H. Finding 16 is
supported by statements made by respondent-mother's attorney at the
review hearing that respondent-mother's criminal attorney had
reported that the State had made two plea offers, which respondent-
mother had declined. This evidence also supports finding 24, thatrespondent-mother refused to accept a misdemeanor plea offered by
the State. Moreover, respondent-father concedes in his brief that
respondent-mother's criminal charges of harming K.J.H. had not been
tried at the time of the review hearing.
Finding 17, that K.J.H.'s overnight visits with respondent-
mother "have been favorable and have gone well," is supported by
statements from respondent-mother's counsel, as well as by
statements from DSS. Respondent-mother's counsel stated at the
hearing that, according to respondent-mother, the visits were going
well and that K.J.H. "seem[ed] to enjoy the visits." DSS reported
at the hearing that the trial court had received a favorable home
study of the maternal grandparents' home from the Stanly County
Department of Social Services. DSS recommended that respondent-
mother's visitation continue and that the case be closed. 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[.]" N.C. Gen. Stat. § 7B-
907(b) (2003). Accordingly, statements by counsel and DSS were
properly before the trial court and constituted competent evidence
on which the trial court based finding 17. Respondent-father
points out that no evidence was presented by DSS in the form of
direct observations of the visits between K.J.H. and respondent-
mother. While we agree that an evaluation by DSS would have been
beneficial to the trial court's determination, we find other
competent evidence to support the trial court's finding. Respondent-father's argument as to finding 22 is substantially
similar to an argument raised in his prior appeal, that respondent-
mother has "significant" psychological problems. In the prior
opinion, we held that there was competent evidence in the record to
support the trial court's finding that respondent-mother had
"undergone a psychological evaluation and no serious problems
[were] determined." See In re K.J.H.
, ___ N.C. App. at ___, ___
S.E.2d at ___. The record before the trial court at the November
review hearing contained no additional evidence of respondent-
mother's mental health. Accordingly, respondent-father's argument
as to this finding is overruled.
Finding 23, that neither of the parents was violent, is
supported by competent evidence from respondent-mother's
psychological evaluation, which stated that "there was no
indication . . . of self-harmful, suicidal, or homicidal ideation,
intent, or action. . . . No unexpected problems are reported with
. . . impulse control." Moreover, respondent-mother recanted her
admission of harming K.J.H., and there had been no determination of
her guilt by a criminal court at the time of the review hearing.
Finding 26 is supported by respondent-mother's testimony at
the hearing. Moreover, the substance of finding 26 appeared in the
permanency planning order as a finding of fact from which
respondent-father did not appeal. Accordingly, we need not address
this finding. Similarly, the substance of finding 28 appeared in
the permanency planning order as a finding of fact from which
respondent-father did not appeal. While we need not address finding 28, we note that it is supported by respondent-mother's
psychological evaluation and the DSS report that noted that
respondent-mother felt pressured into confessing that she had
Finding 30, that K.J.H. was safe during supervised visits with
respondent-mother, was supported by the following: evidence that
the visitations were supervised by the maternal grandparents, who
received a favorable home study from the Stanly County Department
of Social Services; evidence that respondent-mother had no serious
psychological problems; and evidence that respondent-mother's
therapy sessions were terminated by respondent-mother's therapist.
The favorable home study of the maternal grandparents also supports
finding 33, that the maternal grandparents could supervise
visitation. Moreover, the trial court heard a recommendation by
DSS that the maternal grandparents were proper parties to supervise
visitation in their home.
Our review of the record on appeal shows each of the trial
court's findings is supported by competent evidence. Accordingly,
we find no error in any of the trial court's findings of fact and
overrule this assignment of error.
Finally, respondent-father argues that the trial court
committed reversible error in finding and concluding that, in light
of the criminal charges pending against respondent-mother, that
supervised visitation with respondent-mother was in K.J.H.'s best
interest. As noted above, respondent-father also assigns error tothe trial court's conclusion that respondent-mother was a fit and
proper person to have visitation with K.J.H.
A trial court's conclusions of law are upheld when they are
supported by findings of fact. In re Helms
, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997). In the present case, the trial
court's conclusion that respondent-mother was a fit and proper
person to have visitation with K.J.H. was supported by the trial
court's findings that respondent-mother had no criminal record,
attended parenting classes, attended therapy, and had no
significant psychological problems. These findings also support
the trial court's conclusion that it was in K.J.H.'s best interest
to grant respondent-mother visitation. In addition, the trial
court found that visitation had been going well, that K.J.H. was
safe during visitation, and that the maternal grandparents had
received a favorable home study. Accordingly, this assignment of
error is overruled.
Respondent-father's final assignment of error is that the
trial court "erred and abused its discretion" in awarding
respondent-mother visitation supervised by the maternal
grandparents. For the reasons stated above, we uphold the trial
court's conclusion of law that it was in the best interests of
K.J.H. to have visitation with respondent-mother supervised by the
maternal grandparents. Respondent-father provides no additional
legal argument specific to his claim of an abuse of discretion.
Accordingly, this assignment of error is overruled. Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).