IN RE: J.G., M.A., W.C. JR.,
and A.A.
Iredell County
Nos. 03 J 203, 205, 206,
207
Gary C. Rhodes, for respondent-appellant father
.
HUDSON, Judge.
On 29 October 2003, the Iredell County Department of Social
Services (“DSS”) filed petitions alleging that minor children J.G.,
M.A., W.C., and A.A. were neglected. In January 2004, the trial
court adjudicated the children as neglected and ordered that they
be placed in the legal and physical custody of DSS. At a review
hearing on 1 June 2004, the court changed the initial plan of
reunification to guardianship of J.G. and M.A. with relatives and
to termination of parental rights (“TPR”) and adoption for A.A. andW.C. Respondent mother appeals as to all of the children and
respondent father appeals as to his two children, W.C. and J.G.
For the reasons discussed below, we dismiss respondent father's
appeal and affirm the decision of the trial court as to respondent
mother.
The record shows that around 7:00 p.m. on 24 October 2003, the
father of E.S., who is not the subject of this appeal, found E.S.
and the four children who are the subject of this appeal home alone
at respondent mother's house. He called the Statesville Police
Department, who contacted DSS. A DSS social worker arrived at the
home around 8:00 p.m. and when respondent mother had not returned
home by 10:00 p.m., the social worker placed the children with an
aunt and uncle. Respondent mother called the social worker around
4:30 a.m. and said that she had gone out to borrow money for food
and that her car had broken down. The following day, respondent
mother signed a safety plan with DSS agreeing to leave the children
with relatives until risk could be removed from the home. DSS then
filed a petition alleging the children were neglected, in that they
did not receive proper care, supervision, or discipline from
respondents and that they lived in an environment injurious to
their welfare. DSS alleged that respondent mother had left the
children home alone with minimal food, did not inquire into their
whereabouts until 4:30 a.m., had neglected the children in thepast, and had past positive drug screen tests.
On 20 January 2004, respondent mother and father stipulated
that the children were neglected based upon the facts alleged in
the petition. The trial court thus entered an adjudication and
disposition order finding all of the children to be neglected as
alleged. The court ordered that respondent mother attend parenting
classes, undergo a psychological evaluation, have a substance abuse
assessment, and complete all treatment recommendations; it ordered
respondent father to enter a family services case plan and to
follow through with its objectives. The court also ordered that
the plan of care be a concurrent plan of reunification with parents
and guardianship with relatives.
The court conducted a review hearing on 1 June 2004 and found
that respondent mother had not followed through with her family
services case plan, in that she did not follow the recommendations
of her assessments, had not seen her counselor, had been
inconsistent in seeing her substance abuse therapist and her
psychiatrist, had refused or failed to submit to drug screens, was
in child support arrears, and had failed to maintain stable
housing. The court also found that respondent mother's visitations
with the children had been disruptive and that she did not accept
responsibility for the current status of her children. Regarding
respondent father, the court found that he had failed to maintainstable employment and housing, was in child support arrears, had
failed to enter into a family services case plan, had failed to
complete domestic violence counseling, and had failed to visit with
his children. The court ordered that reunification efforts with
respondent parents cease and that the plan for M.A. and J.G. was
guardianship with relatives and that the plan for W.C. and A.A. was
TPR and adoption.
We first note that
respondent mother appeals pursuant to N.C.
Gen. Stat. § 7B-1001 (2004), which provides that any “final order”
in a juvenile matter may be appealed. Id. It provides that a
final order includes “[a]ny order of disposition after an
adjudication of abuse, neglect or dependency.” N.C. Gen. Stat. §
7B-1001 (3). Although this statute has recently been amended, the
amended version applies only to petitions or actions filed on or
after 1 October 2005. Because the petition here was filed prior to
this date, we apply the statute in effect at the time of filing,
and related case law.
This Court has previously held that an order changing the
disposition from reunification to TPR “fits squarely within the
statutory language of 7B-1001.” In re Weiler, 158 N.C. App. 473,
477, 581 S.E.2d 134, 136-37 (2003).
Cf., In re L.D.B. ___, N.C.
App.___, ___, 626 S.E.2d 697, ____ (2006)
; In re B.N.H. 170 N.C.
App. 157, 161, 611 S.E.2d 888, 890, disc. review denied, 359 N.C.632, 615 S.E.2d 865 (2005) (both dismissing as interlocutory
appeals brought under N.C. Gen. Stat. § 7B-1001 which were from
initial permanency planning orders, did not change the plan from
reunification to adoption,
and repeated previous directives of the
court)
.
Here, as in Weiler, respondent mother appeals from a
subsequent review order changing the plan from reunification to TPR
for two of the children, and thus we conclude that her appeal is
properly before us pursuant to N.C. Gen. Stat. § 7B-1001 (3).
Respondent mother first argues that several of the trial
court's findings of fact are not supported by competent evidence.
In her brief, respondent challenges twelve specific findings of
fact, but she did not assign error to eight of these
. These
unchallenged findings of fact are binding on appeal. See In re
Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). One of the
four challenged findings of fact, number ten, pertains
only to
respondent father. Thus, we review the following three challenged
findings of fact as to respondent mother:
5.
The Respondent Mother has refused to
participate in drug screens requested of her
by the DSS. Further, despite having some
income from employment and tax refunds, the
mother has accumulated child support
arrearages and has yet to pay a fee to the
Carolina Child Program which prevents her from
completing further work with the program.
7. The mother has consistently denied
responsibility for failing to complete herfamily services case plan, was often evasive
and non-responsive to questions posted to her
and otherwise did not satisfy the court that
she takes any responsibility for her present
status or that she is willing to take timely
corrective action.
8. Visitations with the Respondent Mother
have been disruptive to the extent that the
visit had to be terminated early. The mother
admits to missing one to two visits because
she was ill.
On appeal, we review orders from juvenile neglect proceedings
to determine whether there is competent evidence in the record to
support the findings and, in turn, whether the findings support the
conclusions of law. In re Eckard., 148 N.C. App. 541, 544, 559
S.E.2d 233, 235, disc. review denied, 356 N.C. 163, 568 S.E.2d 192
(2002). Where there is some evidence to support the trial court's
findings, we are bound by such findings even if the evidence might
sustain findings to the contrary. N.C. Gen. Stat. § 1A-1, Rule 52
(2003); In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 252-53
(1984). “In a nonjury trial, it is the duty of the trial judge 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.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d
362, 365 (2000).
Respondent mother asserts that in making its findings the
trial court improperly relied on written reports by DSS and theGuardian ad Litem (“GAL”), without taking testimony by the authors,
and that thus they are not supported by competent evidence.
We
disagree. This Court has previously rejected the argument that
“the trial court erred in basing its decision on facts in a DSS
court summary and a guardian ad litem report which were not
admitted into evidence during the planning review hearing.” In re
Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 389-90 (2003). As
noted by the Ivey court,
N.C. Gen. Stat. § 7B-901 states that
“[t]he dispositional hearing may be informal and the court may
consider written reports or other evidence concerning the needs of
the juvenile.” Id. at 402, 576 S.E.2d at 390.
After considering
this and other relevant statutes, the Court in Ivey concluded that
the statutes
“lead to but one conclusion: In juvenile proceedings,
trial courts may properly consider all written reports and
materials submitted in connection with said proceedings.
” Id.
(citing In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638
(1983).
Respondent mother acknowledges that such materials may be
submitted, but argues that the trial court may not delegate its
fact-finding duties. In support of this argument, she cites In re
Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003), and In re D.L.,
166 N.C. App. 574, 603 S.E.2d 376 (2004).
In D.L. the Court held
that a written summary by DSS could not form the sole basis for thetrial court's findings of facts. 166 N.C. App. At 582-83, 603
S.E.2d at 382.
Here, unlike in D.L., the Court also considered the
GAL report, and more importantly, respondent mother's own
testimony. In Harton, this Court concluded that the trial court
failed to find the ultimate facts because it made a single finding
of evidentiary fact and merely adopted the DSS and GAL reports as
its remaining findings; the Court remanded for specific findings.
156 N.C. App. at 660, 577 S.E.2d at 337.
After a careful review of
the record, we conclude that although the trial court based some of
the challenged findings on the written reports, it also considered
respondent's testimony, and did not merely adopt the written
reports as its findings, as in Harton. We conclude that the
challenged findings are supported by competent evidence.
In her other arguments, respondent mother essentially re-
argues her contention that the findings were not supported by
competent evidence. She contends that because the findings are not
supported by competent evidence, the court could not properly base
its conclusions of law on such findings. Similarly, she argues
that there was “absolutely no evidence from which the trial court
could make any of the statutorily required findings of fact.”
Because we conclude that the findings of fact are adequately
supported by competent evidence, we overrule these assignments of
error as well. We now turn to respondent father's appeal, which we must
dismiss because of numerous violations of the rules of appellate
procedure
. It is well-established that our rules of appellate
procedure are mandatory and “failure to follow these rules will
subject an appeal to dismissal.” Steingress v. Steingress, 350 N.C.
64, 65, 511 S.E.2d 298, 299 (1999). Our Supreme Court recently
reiterated that it is not the role of this Court to “create an
appeal for an appellant.” Viar v. N.C. DOT, 359 N.C. 400, 402,
610 S.E.2d 360, 361 (2005). Here, respondent father failed to
state the grounds for appellate review in his brief, as required by
Rule 28(b)(4) (2004). As evidenced in our discussion of the
grounds for review of respondent mother's appeal, this issue is of
particular import in an appeal of a juvenile order. Respondent
father also failed to comply with Rule 28(b)(6) (2004), which
requires that each question raised in the brief be followed by “a
reference to the assignments of error pertinent to the question,
identified by their numbers and by the pages at which they appear
in the printed record on appeal.” Id. Furthermore, respondent
father failed to assign error to specific findings of fact. See
N.C. R. App. P. 10(c)(2003). “On appeal from a judgment containing
findings of fact and conclusions of law, the appellant must except
and assign error separately to each finding or conclusion that he
or she contends is not supported by the evidence, then state whichassignments support which questions in the brief.” Concrete Serv.
Corp. v. Investors Group, Inc., 79 N.C. App. 678, 40 S.E.2d 755
(1986) (citing rules 10 and 28). Because of these violations of
the rules
, we conclude that we must dismiss respondent father's
appeal.
Affirmed as to respondent mother; dismissed as to respondent
father.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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