IN THE MATTER OF: Buncombe County
J.P. No. 03 J 23
C. Reid Gonella and Renee Alt, for petitioner-appellee
Buncombe County Department of Social Services.
Judy N. Rudolph, for petitioner-appellee Guardian ad Litem.
Charles W. McKeller, for respondent-appellant.
WYNN, Judge.
Under North Carolina law, the district court may order the
cessation of parental reunification efforts “if the court makes
written findings of fact that: (1) Such efforts clearly would be
futile or would be inconsistent with the juvenile's health, safety,
and need for a safe, permanent home within a reasonable period of
time.” In re Weiler, 158 N.C. App. 473, 478, 581 S.E.2d 134, 137
(2003) (citation omitted). In this case, because the trial court
made sufficient findings of fact to support its conclusion to cease
reunification efforts, we affirm the trial court's order.
J.P. was born to S.D. and Respondent on 25 March 1999. The
couple later separated but shared custody of J.P. under an “OrderPursuant to Memorandum of Judgment” entered in district court on 20
September 2002. Under the terms of the order, Respondent had
primary custody of J.P. S.D. had custody for three weekends plus
one additional overnight stay per month.
On 28 January 2003, the Buncombe County Department of Social
Services (DSS) filed a juvenile petition, alleging that J.P.
“lives in an environment injurious to [his] welfare.”
Specifically, the petition alleged that Respondent “has been
beating his mother while the children are present[,]” and that J.P.
reported “that [Respondent] was beating him, and that he is scared
of [Respondent].” DSS substantiated neglect on 10 December 2002,
“based on finding of a history of domestic violence between [S.D.]
and [Respondent], with current threats of violence and physical
altercation when J[.P.] is exchanged” pursuant to the parents'
joint custody order. The petition accused Respondent of having
unsupervised contact with J.P., in violation of the safety
assessment prepared by the social worker and signed by Respondent.
The petition further noted that each parent accused the other of
crack cocaine use and that Respondent informed a social worker
that “there might be a little something in [his] system” due to his
undercover work with the Transylvania County Sheriff. When asked
to submit to random drug screens as part of his case plan,
Respondent allegedly cursed the social worker, threatened to sue
DSS, and claimed “he was 'working with the DA busting crack
dealers'” and “would have some 'stuff' in his system from time to
time[.]” After a hearing on non-secure custody held 23 May 2003, the
district court placed the child in the custody of DSS, granted the
parents' supervised visitation, and ordered Respondent to “comply
with the request of [DSS] that he shows he is sober and not using
illegal substances” and to “complete an anger management program.”
The court held a seven-day hearing on 30 May 2003, see N.C. Gen.
Stat. § 7B-506 (2004), and entered an order continuing DSS's
custody of J.P., approving a placement with his paternal
grandmother, and ordering Respondent to complete a program in anger
management and domestic violence and “submit to a drug screen
specific to cocaine and shall continue drug screens on a regular
basis and provide the results to [DSS].”
J.P. was adjudicated a neglected juvenile in an order dated 10
September 2003. The district court found that Respondent “denies
but does not contest that . . . J.P. is a neglected child based on
the allegations contained in the juvenile petitions.” It noted,
however, that Respondent “has had at least 2 or 3 negative drug
screens.” In its disposition, the court ordered J.P. to remain in
DSS custody and allowed Respondent supervised visitation. The
court further ordered Respondent to do the following: (1) submit to
a substance abuse assessment and psychological evaluation and
follow any resulting recommendations; (2) attend parenting classes;
(3) participate in the SAFE program; (4) submit to random drug
tests; and (5) pay child support as ordered.
In an order entered 14 November 2003, the district court
established a permanent placement plan for J.P. of “reunificationwith the parents.” The order includes the following findings
regarding Respondent's compliance with the court's 10 September
2003 disposition:
12. That [Respondent] has completed services
for his substance abuse treatment. However,
he still needs to complete the SAFE program
and attend parenting classes and his
psychological evaluation. [Respondent] stated
that he will do these things. [He] did have a
positive drug screen for marijuana.
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19. That the Court is not impressed with the
lack of speed on the part of [Respondent].
That the SAFE counselor is unable to provide
insight and the psychological evaluation and
the parenting classes are not done yet. That
[Respondent] had a positive drug screen after
denial of any drug problem and when he knew he
would be tested.
The court otherwise left in place its prior decree regarding the
child's custody arrangement.
In a review order entered 9 February 2004, the court noted
additional recalcitrance by Respondent, as follows:
10. . . . [Respondent] completed his substance
abuse treatment but due to allegations that
[he] was paying off his counselor for clean
screens, [DSS] is concerned about the validity
of services that were provided. [DSS]
requested that [Respondent] complete a drug
screen at Keystone Labs in Asheville. This
screen was positive for cocaine. . . .
[Respondent] has completed parenting classes.
[He] still has not completed his psychological
evaluation. He had an appointment scheduled
for October 17, 2003 but did not show.
[Respondent] has been ambivalent about
attending batterer treatment at SAFE.
[Respondent] is not accepting any
responsibility for his behaviors.
* * * 14. That [Respondent] informed the Court that
he is scheduled to begin [substance abuse]
treatment at Mountain Laurel Mental Health.
The Court is concerned about [his] lack of
progress and informed him time is not on his
side. . . .
A subsequent review order entered 11 May 2004, included additional
findings of Respondent's noncompliance:
9. . . . [Respondent] has been negligent in
attending his substance abuse assessment
appointments. [He] is dealing with a cocaine
addiction and is currently not receiving any
treatment at all. [DSS] does not feel secure
in stating that [he] is not using simply
because he had a negative drug screen for
cocaine in January of 2004. [Respondent] is
attending group at SAFE with Larry Goodwin and
Mr. Goodwin reports that he is seeing some
progress from [Respondent]. Also since the
last court hearing [Respondent] did complete
his psychological evaluation. This evaluation
revealed some underlying issues that [he] will
need to address in a therapeutic setting.
* * *
18. . . . [T]hat the SAFE program is not going
to be the complete way of dealing with
[Respondent]'s diagnosed Intermittent
Explosive Disorder. [He] should contact [his
therapist] and determine what additional
programs/counseling he needs to address his
diagnosis. He has not completed his new
substance abuse assessment nor complied with
the requests by [DSS] for random drug screens.
[Respondent] has not been compliant with prior
court orders regarding treatment.
Despite these findings, the court maintained a permanent plan of
reunification with both parents. However, it removed J.P. from his
placement with the paternal grandmother, finding that she allowed
Respondent unsupervised visitation with the child and that she
expressly refused to comply with the court's orders.
In a review order entered 22 October 2004, the district courtfound that J.P. was now living in a specialized foster home. The
court noted progress by Respondent in adhering to his substance
abuse psychological treatment but expressed concern about
Respondent's cancellation of visitations with J.P. and his lack of
participation in J.P.'s therapy and nonattendance at Child and
Family Team meetings. The court “admonishe[d Respondent] to be
more consistent with visitation[,]” and ordered him “to contact
J[.P.'s] therapist and begin participating in J[.P.'s] therapy
pursuant to the therapist's recommendations.” It further ordered
that he “should make an effort to attend the Child and Family Team
meetings.” The court authorized unsupervised visitation for
Respondent “once he has begun to have contact with J[.P.'s]
therapist on a weekly basis, attends team meetings regarding J[.P.]
on a monthly basis, [and] continues in treatment for Intermittent
Explosive Disorder and substance abuse[.]”
The district court held another review hearing on 15 November
2004. Based on the testimony at the hearing and the unfavorable
reports from DSS and the guardian ad litem regarding Respondent's
deceptive and noncompliant behavior, the court entered an order on
29 December 2004, ceasing efforts to reunify J.P. with Respondent
and terminating Respondent's visitation with the child. The court
supported its decision with the following findings:
15. . . . During August and September
[Respondent] missed several visitations with
J[.P.] at the Family Visitation Center . . .
on August 14, August 28, and September 11,
2004, and claimed it was because he had to
work. . . . [A]lthough he did work on
September 11, 2004, he did not work on the
other dates. He also missed a visit onSeptember 18, 2004, due to the weather. On
September 25, 2004, he missed his visitation
because he did not get a drug screen. These
cancellations are devastating to the minor
child when he knows visits are scheduled but
they do not occur. . . .
16. . . . [Respondent] missed his substance
abuse groups on August 16, and August 23,
2004, and when questioned about his absence,
[he] stated that he missed group because his
boss threatened him that if he left work to
attend group, he would be fired. When
contacted by [DSS] his employer stated that
they have never threatened [Respondent] . . ..
[DSS] also learned that [Respondent] worked a
regular 8-hour day on August 16, 2004, which
would not have caused him to miss his group
session. [He] did not work on August 23, 2004.
17. . . . [O]n August 9, 2004, [Respondent]
was asked to submit to an observed urine
screen and he stated he could not give a
sample at that time. Always having consistent
weekly attendance, [Respondent] missed the
following two Relapse Prevention groups on
August 16 and 23, 2004, respectively. He came
back into group on August 30, 2004 and
informed Pat Menser that due to being
homophobic, he could not do an observed urine
screen with one of our male staff members . .
. .
18. Due to concerns about [Respondent]
failing to provide urine screens and the
possibility of relapse during the month of
August of 2004, [DSS] first requested a hair
follicle screen from [him] on October 12,
2004. His attorney reported that [Respondent]
would submit to this screen on the day of the
Child and Family Team meeting on October 21,
2004. On October 21, 2004, [Respondent]
arrived at the team meeting with noticeably
shorter hair. He reported he had gone to
Zytec Labs and tried to get a hair screen and
was told that his hair was too short . . . for
an accurate screen. He then reported that he
had a urine screen instead. [DSS] was very
specific that any drug screens should be
collected at Keystone Labs. [Respondent]'s
attorney . . . relayed the information that if
the hair on his head was too short thatKeystone would proceed in the following order
to collect a hair specimen: arm, leg, chest,
underarm, and then pubic hair. [Respondent]
did not inform his attorney at that time that
he shaved his body hair. He did not submit to
a hair screen on October 21 or 22, 2004, but
finally showed up for his screen on October
28, 2004. When Keystone Labs asked him to get
into a gown so that a male staff member could
determine where to take a sample, [Respondent]
reported that his attorney told him that they
could only take hair from his head and that he
would have to talk to his attorney about using
his arm hair. He refused to get into a gown
and reported to the staff member that he
shaves his body hair. He left the collection
site, then returned after three hours and
allowed an arm hair sample to be obtained. On
November 10, 2004, [DSS] received notice that
the screen was negative.
* * *
20. . . . Even if he is not using at this
point, [Respondent] has not been honest about
his recovery and this calls into question his
ability to maintain sobriety. [His
psychotherapist] reported that [he] had scored
on the low end of Anti-Social Personality
Disorder when he was being evaluated. . . .
[Respondent] appears to have an unstable
personality that could lead to making poor
decisions in parenting a small child and
increase the risk of relapse by using illegal
substances.
* * *
26. John Novinsky with Keystone Labs . . .
advised the court that it appears that
[Respondent]'s arm hair sample was adequate. .
. . Because the tested sample was not head
hair, he was unable to tell with any certainty
whether or nor [Respondent] relapsed during
August or September of 2004.
* * *
30. [Respondent's girlfriend, Lisa Smith]
testified that she asked [him] to shave his
body hair and that he has done so since May of
2004.
* * *
36. The court finds that [Respondent] has not
made reasonable compliance with court orders.
He failed to meet with J[.P.]'s therapist
regularly and has only attended one treatment
team meeting. He missed his substance abuse
groups on August 16 and 23, 2004. The minor
child, J[.P.], has been in the custody of
[DSS] for 539 days. [Respondent]'s lack of
progress is due to the degree of deception and
lack of responsibility he has displayed. [He]
has participated in drug screens, however, he
has failed to obtain drug screens at the
requested times and places. Further, his
actions reflect that he engaged in behaviors
to avoid getting drug screens . . .. The
court finds Ms. Smith's testimony regarding
[Respondent] shaving his body hair is not
credible . . .. The court finds that
[Respondent] has not shown any progress and he
continues to be deceptive with all parties and
the court. It is not possible to return the
minor child to the home of [Respondent] within
six months . . ..
Based on its findings, the court concluded that “[e]fforts to place
the minor child J.P. with [Respondent] clearly would be futile or
be inconsistent with the child's health, safety and need for a
safe, permanent home within a reasonable period of time.” It
ordered that DSS be “relieved of further reunification efforts with
[Respondent].” Further finding it “possible to return the minor
child[] to the home of the mother within the next 6 months,”
however, the district court maintained reunification as J.P.'s
permanent plan. Respondent filed timely notice of appeal from the
order.
____________________________________________
Before addressing the merits of Respondent's appeal, we note
that DSS has filed a motion to dismiss, arguing that a permanencyplanning review order which merely ceases its obligation to make
efforts toward reunification is not a “dispositional order” subject
to appeal under N.C. Gen. Stat. § 7B-1001(3) (2004). We disagree.
Under the Juvenile Code, a respondent parent has a right of appeal
from, inter alia, “[a]ny order of disposition after an adjudication
that a juvenile is abused, neglected, or dependent; or [a]ny order
modifying custodial rights.” N.C. Gen. Stat. § 7B-1001(3), (4)
(2004) (emphasis added). The instant order altered the existing
permanent placement plan with respect to Respondent by ceasing
reunification efforts on his behalf. Compare Weiler, 158 N.C. App.
at 477, 581 S.E.2d at 137 (“An order that changes the permanency
plan [from reunification to termination of parental rights] is a
dispositional order that fits squarely within the statutory
language of section 7B-1001.”) with In re B.N.H., __ N.C. App. __,
__, 611 S.E.2d 888, 891, disc. review denied, 359 N.C. 632, 615
S.E.2d 865 (2005) (“In Weiler, the permanency planning order on
appeal changed the plan from reunification to adoption. The order
on appeal here is not such an order, . . . because it repeats the
previous directives of the court that reunification be ceased.”).
It also terminated his visitation with the child. Accordingly,
Respondent had a right to appeal this order under section 7B-1001
of the North Carolina General Statutes. See Weiler, 158 N.C. App.
at 477, 581 S.E.2d at 137 (citing In re Eckard, 144 N.C. App. 187,
547 S.E.2d 835 (2001)). Accordingly, we deny DSS' Motion to
Dismiss Appeal.
On appeal, Respondent argues that the trial court erred in (1)exercising subject-matter jurisdiction over the juvenile, and (2)
finding sufficient grounds from reunification to termination.
In his first argument on appeal, Respondent contends the
Buncombe County district court lacked subject matter jurisdiction
in this cause, inasmuch as J.P. resided primarily in Transylvania
County with Respondent at the time the juvenile petition was filed.
We disagree.
“The district court has exclusive, original jurisdiction over
any case involving a juvenile alleged to be abused, neglected, or
dependent.” In re E.C., __ N.C. App. __, __, 621 S.E.2d 647, 652
(2005) (citing N.C. Gen. Stat. § 7B-200(a) (2003)). Although
Respondent complains the district court made no specific findings
of fact regarding its subject matter jurisdiction, his failure to
raise the issue in the district court or request such
jurisdictional findings relieved the court of the burden to enter
them. Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d
792, 797 (1987) (citations omitted). In each of its orders,
including the order now on appeal, the court found that it had
jurisdiction over the parties and subject matter. Absent an
affirmative showing to the contrary in the record on appeal, its
jurisdiction is presumed. Id. (quoting Dellinger v. Clark, 234
N.C. 419, 424, 67 S.E.2d 448, 452 (1951)); see also In re Estate of
Davis, 7 N.C. App. 697, 700, 173 S.E.2d 620, 622, aff'd, 277 N.C.
134, 176 S.E.2d 825 (1970).
In support of his jurisdictional argument, Respondent relies
upon the venue provision of the Juvenile Code, which provides that“[a] proceeding in which a juvenile is alleged to be abused,
neglected, or dependent may be commenced in the district in which
the juvenile resides or is present.” N.C. Gen. Stat. § 7B-400
(2004). However, “venue is not jurisdictional” and is subject to
waiver. Jones v. Brinson, 238 N.C. 506, 510, 78 S.E.2d 334, 338
(1953) (citation omitted). Moreover, although Respondent avers
that J.P.'s primary residence was in Transylvania County at the
time DSS filed its petition, there is nothing in the record to show
that J.P. was not either residing with his mother or simply
“present” in Buncombe County when the juvenile petition was filed.
N.C. Gen. Stat. § 7B-400. Therefore, the record does not show that
venue was improper, notwithstanding J.P.'s primary county of
residence. We further note that the issue of venue is not properly
before this Court. Although Respondent filed a motion to change
venue on 19 February 2003, the record lacks any showing that
Respondent sought a hearing on his motion or otherwise objected to
venue at any stage of the proceedings. He did not challenge venue
at the permanency planning review hearing; nor is the issue
addressed in the instant order. Having failed to press his motion
in district court, Respondent waived any defense of improper venue.
See Johnson v. Hampton Indus., Inc., 83 N.C. App. 157, 158, 349
S.E.2d 332, 333 (1986); Miller v. Miller, 38 N.C. App. 95, 97, 247
S.E.2d 278, 279 (1978).
Respondent next contends the district court failed to make
sufficient findings of fact to support its conclusion that further
reunification efforts by DSS “would be futile or would beinconsistent with the juvenile's health, safety, and need for a
safe, permanent home within a reasonable period of time[.]” N.C.
Gen. Stat. § 7B-507(b)(1) (2004). He argues that the court merely
repeated the allegations found in the DSS and guardian ad litem
reports and “quot[ed] the statutory language [of N.C. Gen. Stat. §
7B-507(b)(1)] verbatim without stating the specific fact or facts
found to support the statement.” While acknowledging the findings
of his non-compliance with the district court's previous orders,
Respondent avers the instant order “does not make any reference to
how these problems are inconsistent with [J.P.]'s health, safety,
and need for a permanent home.”
Appellate review of a permanency planning order is limited to
whether there is competent evidence in the record to support the
findings and 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 192-93 (2002). The district
court's findings of fact are binding on appeal if supported by
competent evidence. In re H.W., 163 N.C. App. 438, 443, 594 S.E.2d
211, 213, disc. review denied, 358 N.C. 543, 599 S.E.2d 46 (2004).
For purposes of our review, findings to which Respondent did not
except are deemed to be supported by competent evidence. Koufman
v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Under section 7B-907(b) of the North Carolina General
Statutes, the district court must “make written findings on all of
the relevant criteria” prescribed for a permanency planning review.
In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)(quoting N.C. Gen. Stat. § 7B-907(b)). The court may consider the
written reports submitted by DSS and the guardian ad litem, see In
re Ivey, 156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003); N.C.
Gen. Stat. § 7B-907(b) (2003), but may not satisfy its fact-finding
obligation by incorporating these reports wholesale into its order.
See In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004);
see also N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2005) (requiring
court to “find the facts specially”). Nor may the court “simply
'recite allegations,' but must through 'processes of logical
reasoning from the evidentiary facts' find the ultimate facts
essential to support the conclusions of law.” Harton, 156 N.C.
App. at 660, 577 S.E.2d at 337 (quoting In re Anderson, 151 N.C.
App. 94, 97, 564 S.E.2d 599, 602 (2002)). Moreover, in order to
allow effective appellate review of its rulings, the trial court
must find sufficient evidentiary facts to demonstrate a
deliberative basis for its findings of the ultimate facts germane
to the issues at bar. See Quick v. Quick, 305 N.C. 446, 451, 290
S.E.2d 653, 657 (1982).
At a permanency planning review hearing, the district court
may order the cessation of efforts to reunify the juvenile with the
respondent parent “if the court makes written findings of fact
that: (1) Such efforts clearly would be futile or would be
inconsistent with the juvenile's health, safety, and need for a
safe, permanent home within a reasonable period of time.” Weiler,
158 N.C. App. at 478, 581 S.E.2d at 137 (quoting N.C. Gen. Stat. §
7B-507(b)). We conclude the district court made the requisitefindings. As recited above, the court entered detailed findings of
Respondent's ongoing failure to attend scheduled visitations with
J.P. and meetings with his substance abuse group, as well as the
extraordinary means Respondent employed to avoid drug screens.
Additional findings recount Respondent's seemingly habitual
dishonesty in explaining his recalcitrant behavior and his refusal
to take responsibility for his actions. The court entered
additional findings regarding the effect of Respondent's
psychological disorder on his decision-making. Moreover, contrary
to Respondent's argument on appeal, we find a clear logical nexus
between the court's findings and its ultimate finding or conclusion
that Respondent's continuing failure to be consistent in his
visitations with J.P., address his own substance abuse issues, and
take responsibility for his actions, even after 539 days of DSS's
custody of the child, presented a substantial risk of harm to J.P.
if he were returned to Respondent. Unlike the conduct of the
respondents in Weiler, 158 N.C. App. at 477, 581 S.E.2d at 137, and
In re Eckard, 144 N.C. App. 187, 547 S.E.2d 835, these behaviors
bear directly upon Respondent's ability to provide a safe and
stable living environment for J.P. See In re Davis, 116 N.C. App.
409, 414, 448 S.E.2d 303, 306, disc. review denied, 338 N.C. 516,
452 S.E.2d 808 (1994); In re Johnson, 70 N.C. App. 383, 389, 320
S.E.2d 301, 305-06 (1984).
Affirmed.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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