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.
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.
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).
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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