An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
IN THE MATTER OF:
L.B. Harnett County
No. 04 J 128
Appeals by respondent mother and respondent father from order
entered 14 July 2005 by Judge Resson O. Faircloth in Harnett County
District Court. Heard in the Court of Appeals 8 June 2006.
E. Marshall Woodall and Duncan B. McCormick, for petitioner-
appellee Harnett County Department of Social Services.
Elizabeth Myrick Boone, for petitioner-appellee Guardian ad
Annick Lenoir-Peek, for respondent mother-appellant.
Susan J. Hall, for respondent father-appellant.
J.O. (respondent mother) and A.B. (respondent father)
appeal from order entered ceasing reunification efforts with their
minor child, L.B., and changing L.B.'s permanent plan to adoption.
In 1999, respondents moved to the United States illegally from
Mexico. Respondents initially left L.B. in Mexico with her
maternal grandmother. In 2003, L.B. was brought to the United
States illegally to live with her parents and four siblings.
Respondent mother took L.B. to a hospital for injuries related
to a fall on 8 July 2004. Due to significant bruising on L.B.'sface, arm, back, and legs, a busted lip, and lack of proper child
care arrangement, hospital staff contacted the Harnett County
Department of Social Services (DSS), who filed a petition
alleging neglect. During a forensic examination, L.B. stated her
mother, father, and brother had caused the bruises. A medical
examination revealed twenty separate injuries consistent with non-
accidental trauma. L.B. was placed in foster care, where she has
remained since July 2004.
L.B. was adjudicated abused and neglected on 22 October 2004.
The court held a dispositional hearing on 12 November 2004. DSS
scheduled visitation for respondents on Thursdays from 2:00 p.m.
until 3:00 p.m.
A permanency planning hearing was held on 13 May 2005, and the
court entered a permanency planning review order on 14 July 2005.
The court found L.B. had adjusted well to her foster home and had
made progress in school. L.B. told the social worker she had
unhappy feelings about respondents. L.B.'s guardian ad litem
reported respondent father's work schedule interfered with
visitation. DSS's report states:
Ms. Ocampo [regularly] comes each week for
visitation. She usually brings her son A.B.
with her. Due to A.B. being present she
cannot give undivided attention to L.B.
Usually the social worker prompts or suggests
to L.B.'s mother to participate with L.B., ie
come sit by L.B., or L.B. come over here
near Mom and talk to her about school. Most
of the visit is spent with no verbal
interaction between L.B. and her parent or
parents. . . . It is interesting to note, L.B.
tends to be more open to her mother who was
found to be the abuser than she does to her
father. L.B. tends to exhibit passiveaggressive behavior [sheepish grin] when she
rejects her father by not talking to him or
[by] refusing to have physical contact with
Mr. Bahena states he loves his little girl and
wants her to come home to live with him;
however, his actions do not appear to match
his words. Since the first of the year, Mr.
Bahena visited January 20, 2005. This was his
first visit since November 18, 2004. His
further visit was February 10, 2005. Last
court session was February 11, 2005, he was
present. No further visits until March 31,
2005 with L.B. [sic] He did attend the
permanency planning meeting March 16, 2005 and
stated at that meeting he was going to make
visiting L.B. a priority. March 31, 2005 was
the last visitation he attended to this
The court made the following specific findings of fact:
(1)the parents had not followed through on activities set forth in
the Family Services Case Plan; (2) DSS made parental referrals to
Lee-Harnett Mental Health Center and Tri County for available
mental health counseling and psychological treatment. The parents
failed to seek services at these facilities; (3) [t]he juvenile
and her parents are illegal aliens and do not qualify for Medicaid
or some other assistance due to this illegal status; (4)
respondents have failed to consistently participate in the program
at the Multicultural Community Development Services (MCDS) Family
Support Center. Notwithstanding encouragement by the social
worker, they have not made themselves available in a timely
manner; (5) respondents had participated in eight hours of
Assessments; (6) neither parent has paid any support for the
juvenile; (7) respondents have four other children living in
their home, and all parties, social workers, guardian ad litem, andother service providers agree that these other children are well
cared for; (8) L.B. was identified as a 'target child' by Dr.
Sharon Cooper, and this factor combined with the ongoing failure of
the parents to appropriately bond with the juvenile make this an
area of ongoing concern for the DSS and GAL; (9) [t]here appears
to be no relatives who will agree to take the child into their
respective home; (10) DSS has worked with the parents since the
removal of the child in July, 2004 - nearly 10 months. The parents
have made no appreciable progress in improving their parental
skills and responsibilities with this juvenile; (11) [i]t appears
to the court that a continuation of efforts by DSS to extend the
services currently offered to the parents would be useless; (12)
[i]t is not anticipated that the child will be returned to the
parents within the next six (6) months; and (13) [i]t is in the
best interest of the juvenile that her custody remain with DSS for
care and placement.
The court concluded [t]he child's plan of care and placement
should be changed to one of adoption. Respondents appeal.
Respondent mother argues the trial court erred by changing
L.B.'s case plan from reunification to adoption because the
findings of fact and conclusions of law are not supported by
competent evidence. Respondent father argues the trial court erred
when it concluded L.B.'s case plan should be changed to adoption
because the findings of fact do not support the conclusions of law.
Respondent father also argues the trial court erred when it failedto reduce its order to writing within the thirty days required by
Respondent father abandoned his assignments of error numbered
1, 3, 4, 6, 7, 8, 11, 12, 13, 23, and 30. Respondent mother
abandoned her assignments of error numbered 1, 2, and 3. N.C. R.
App. P. 28(b)(6) (2005) provides, [a]ssignments of error not set
out in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.
III. Standard of Review
All dispositional orders of the trial
court after abuse, neglect and dependency
hearings must contain findings of fact based
upon the credible evidence presented at the
hearing. If the trial court's findings of fact
are supported by competent evidence, they are
conclusive on appeal. In a permanency planning
hearing held pursuant to N.C. Gen. Stat. ch.
7B, the trial court can only order the
cessation of reunification efforts when it
finds facts based upon credible evidence
presented at the hearing that support its
conclusion of law to cease reunification
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003).
The trial court's conclusions of law are reviewable de novo
on appeal. Starco, Inc. v. AMG Bonding and Ins. Services, 124
N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
IV. Permanent Plan
Respondents argue the trial court erred when it concluded
L.B.'s case plan should be changed to adoption and assert the
findings of fact do not support the conclusions of law and neither
are supported by competent evidence. This Court stated in In re Harton, under N.C. Gen. Stat. §
7B-907, a trial court is required to conduct a permanency planning
hearing in every case where custody of a child has been removed
from a parent within twelve months of the date of the original
custody order. 156 N.C. App. 655, 658, 577 S.E.2d 334, 336
(2003). Also, [s]ection 7B-907(b) requires a trial court to make
written findings on all of the relevant criteria as provided in the
statute. Id. at 660, 577 S.E.2d at 337.
N.C. Gen. Stat. § 7B-507 (2005) provides that a court may
cease reunification efforts with the parents if the court finds
further 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.
A. N.C. Gen. Stat. § 7b-907
N.C. Gen. Stat. § 7B-907 (2005) provides:
(b) At any permanency planning review, the
court shall consider information from the
parent, the juvenile, the guardian, any foster
parent, relative or preadoptive parent
providing care for the child, the custodian or
agency with custody, the guardian ad litem,
and any other person or agency which will aid
it in the court's review. The 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 and the most appropriate disposition.
At the conclusion of the hearing, if the
juvenile is not returned home, the court shall
consider the following criteria and make
written findings regarding those that are
(1) Whether it is possible for the juvenile to
be returned home immediately or within thenext six months, and if not, why it is not in
the juvenile's best interests to return home;
(2) Where the juvenile's return home is
unlikely within six months, whether legal
guardianship or custody with a relative or
some other suitable person should be
established, and if so, the rights and
responsibilities which should remain with the
(3) Where the juvenile's return home is
unlikely within six months, whether adoption
should be pursued and if so, any barriers to
the juvenile's adoption;
(4) Where the juvenile's return home is
unlikely within six months, whether the
juvenile should remain in the current
placement or be placed in another permanent
living arrangement and why;
(5) Whether the county department of social
services has since the initial permanency plan
hearing made reasonable efforts to implement
the permanent plan for the juvenile;
(6) Any other criteria the court deems
The trial court's order contains findings of fact in
accordance with the six requirements of the statute.
1. Juvenile's Return Home
The trial court found DSS had worked with respondents for ten
months. The trial court also found respondents appear to be just
going through the motion of participating in the reunification
plan. It appears to the court that a continuation of efforts by DSS
to extend the services currently offered to the parents would be
useless. The trial court also found respondents failed to make
progress on the plan and concluded it was in L.B.'s best interest
to change the plan to adoption. Regarding L.B.'s possible return home, the trial court found
substantial progress on the part of respondents would not be made
within a reasonable time, and [i]t is not anticipated that the
child will be returned to the parents within the next six (6)
2. Legal Guardianship with a Relative
The trial court found [t]here appears to be no relatives who
will agree to take the child into their respective home.
The trial court found that adoption should be pursued and that
respondents objected to the change in the plan to adoption.
4. Current Placement
Because the trial court found that L.B. is not likely to
return to respondents' home in the next six months, the trial court
considered whether L.B. should remain in her current placement.
N.C. Gen. Stat. § 7B-907(b)(4). The trial court found L.B. is
doing well in her present placement, is in good health, is
progressing in her school endeavors and is improving in her
relationships with others.
5. Reasonable Efforts and Other Relevant Criteria
The trial court found DSS has made reasonable efforts in
carrying out the plan of the court and in attempting to prevent the
continued need for placement of this child in foster care; however,
the failure of the parents to make appropriate progress on the plan
of reunification has precluded those efforts. The court alsofound DSS has exercised reasonable efforts to make appropriate
permanent plans for this child's care and placement.
The trial court considered other relevant criteria including
that the child was adjudicated abused and neglected in that the
juvenile was physically injured by the respondent mother and was
allowed to live in an environment injurious to her welfare and did
not receive proper care, supervision and discipline from her
B. N.C. Gen. Stat. § 7B-507
N.C. Gen. Stat. § 7b-507(b) (2005) provides:
In any order placing a juvenile in the custody
or placement responsibility of a county
department of social services, whether an
order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
(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;
If the court determines the juvenile is not to be returned
home, the court must make the following written findings:
(1) the juvenile's continuation in or return
to the juvenile's own home would be contrary
to the juvenile's best interest;
(2) whether a county department of social
services has made reasonable efforts to
prevent or eliminate the need for placement of
the juvenile, unless the court has previously
determined under subsection (b) of this
section that such efforts are not required or
(3) whether a county department of social
services should continue to make reasonable
efforts to prevent or eliminate the need for
placement of the juvenile, unless the court
has previously determined or determines under
subsection (b) of this section that such
efforts are not required or shall cease;
(4) the juvenile's placement and care are the
responsibility of the county department of
social services and that the agency is to
provide or arrange for the foster care or
other placement of the juvenile; and
(5) May provide for services or other efforts
aimed at returning the juvenile to a safe home
or at achieving another permanent plan for the
The trial court made findings of fact regarding all of the
statutory factors found in N.C. Gen. Stat. § 7B-507(b). Based upon
its findings of fact, the trial court concluded, [p]lacement of
the child with parents would be contrary to the child's welfare.
The court also concluded, [i]t is in the best interest of the
juvenile for her custody to remain with [DSS] for placement as
mentioned in the findings; and the child's plan of care and
placement should be changed to one of adoption.
The trial court may order the cessation of reunification
efforts when it finds facts based upon credible evidence presented
at the hearing that support its conclusion of law to cease
reunification efforts. In re Weiler, 158 N.C. App. at 477, 581
S.E.2d at 137. Here, the trial court's findings of fact and
conclusions of law were based in part upon the court reports from
the social worker and the guardian ad litem and direct testimoniesfrom DSS social worker Virginia Rouse (Ms. Rouse) and MCDS
director Robert Green (Mr. Green).
Ms. Rouse testified that respondents have attended MCDS but
have not fully complied with that program. Ms. Rouse also
testified that DSS referred respondents to counseling to work
on their relationship and different problems. They have failed to
comply with that. . . They have not gone. According to Ms. Rouse
respondents have failed to pay child support.
Mr. Green testified he observed respondents with L.B. and
there was an absence of a healthy closeness and responsiveness.
There was a lack of ability as far as nurturing [L.B.]. One of
the cross examiners asked Mr. Green, I believe part of the problem
you've had in being able to make an adequate assessment of this has
been that they haven't been real cooperative, isn't it? Mr. Green
responded, That's correct, sir. There have been times where the
family actually called and canceled the classes because they were
unable to make it, and that is correct, sir.
The trial court's findings of fact are supported by
[credible] evidence, and the findings of fact support the
conclusions of law. Id. These assignments of error are overruled.
V. Order in Writing
Respondent father argues the trial court erred when it failed
to reduce its order to writing, sign, and enter it within the time
prescribed by statute. N.C. Gen. Stat. § 7B-907 mandates, [a]ny [permanency planning
order] shall be reduced to writing, signed, and entered no later
than 30 days following the completion of the hearing.
Regarding the late filing of termination orders, this court
has held a delay of the entry of order of six months was highly
prejudicial to respondent-mother, the minors, and the foster
parent. In re L.E.B., K.T.B., 169 N.C. App. 375, 380, 610 S.E.2d
424, 427, disc. rev. denied, 359 N.C. 632, 616 S.E.2d 538 (2005).
Respondent-mother, the minors, and the foster
parent did not receive an immediate, final
decision in a life altering situation for all
parties. Respondent-mother could not appeal
until entry of the order. If adoption
becomes the ordered permanent plan for the
minors, the foster parent must wait even
longer to commence the adoption proceedings.
The minors are prevented from settling into a
permanent family environment until the order
is entered and the time for any appeals has
Id. at 379, 610 S.E.2d at 426-27.
This Court has found 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. In re C.J.B., M.J.B., 171 N.C. App. 132, 135, 614
S.E.2d 368, 370 (2005).
Here, the trial court heard evidence on 13 May 2005 and
entered its order on 14 July 2005. In open court on 13 May 2005,
the trial court changed the plan from reunification to adoption.
After the hearing, DSS's attorney drafted and circulated a proposed
order. Respondent mother's attorney drafted a proposed counterorder. The parties' attorneys failed to agree upon the findings of
fact. On 6 July 2005, DSS's attorney moved the trial court to
conduct a hearing on 8 July 2005 to resolve differences and make
findings of fact. The court conducted a hearing on 8 July 2005,
and the trial court signed and entered the permanency planning
review order on 14 July 2005.
Respondent father failed to show how the thirty-two day delay
beyond the thirty days statutory maximum prejudiced him. While
this Court does not condone the late entry of orders beyond the
required statutory periods in any action, in light of respondent's
failure to show any prejudice, this assignment of error is
overruled. In re K.D.L, _ N.C. App. _, _, 627 S.E.2d 221, 224
The trial court's findings of fact are supported by competent
evidence, and the findings of fact support the conclusions of law.
In re Weiler
, 158 N.C. App. at 477, 581 S.E.2d at 137. Respondent
father has failed to argue or show any prejudice from the trial
court's failure to reduce its order to writing and file within the
statutory thirty days time frame. The trial court's order is
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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