IN THE MATTER OF:
Transylvania County
N.G., A.H., and K.G., No. 04 J 41, 42, 43
Minor Children.
H. Paul Averette for petitioner-appellee.
Michael E. Casterline for respondent-appellant mother.
John M. Kirby for appellee-guardian ad litem.
ELMORE, Judge.
This appeal arises from the district court's order, entered 27
July 2005, changing respondent mother's permanent plan with respect
to her children from reunification to adoption, and ordering that
the Department of Social Services (DSS) begin proceedings to
terminate her parental rights. After careful review, we affirm the
order of the trial court.
On 3 June 2004, DSS filed petitions alleging that N.G., A.H.,
and K.G. (collectively, the children) were neglected, and an order
for non-secure custody was entered. The minor children were ages
four years, three years, and eight months, respectively, when the
petitions were filed. Respondent was married to B.H. at that time,who was the father of A.H. and K.G. N.G.'s father did not
participate and was not represented in the proceedings.
The petition alleged that respondent was overheard cursing at
her children, that she was heard threatening N.G. with foster care
and telling him that she did not want to care for him, that A.H.'s
bottles were spoiled and dirty, and that B.H. was unable to
properly care for the children while respondent was hospitalized
for a drug overdose. The children were placed in their maternal
aunt's home per the non-secure custody order, but were removed
following a 13 September 2004 hearing in which the parties
stipulated to DSS allegations of neglect in that home, as well.
The children were then placed in a foster home, at which the
parents were allowed supervised visitation.
A review and permanency planning hearing was scheduled and
held 11 July 2005. After hearing evidence, the trial judge ordered
that the permanent plan for N.G. be shifted from reunification to
adoption. He also ordered that the permanent plan for A.H. and
K.G. be changed from reunification to adoption with respect to
respondent; his order continued their plan of reunification with
their father. Finally, the trial judge ordered that visitation
between respondent and the children cease and that DSS begin
proceedings to terminate respondent's parental rights. It is from
these orders, entered 27 July 2005, that respondent now appeals.
The Guardian ad Litem (GAL) in this case urges the Court to
hold that there is no appealable matter currently before it. The
GAL notes a recent case in which this Court stated: The present order . . . changed the
disposition from reunification with the mother
to termination of parental rights. An order
that changes the permanency plan in this
manner is a dispositional order that fits
squarely within the statutory language of
section 7B-1001. Thus, the appeal is properly
before us and petitioner's motion to dismiss
is denied.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 136-37 (2003)
(internal citation omitted). However, the GAL asserts that the
Weiler decision has found little favor, directing the Court's
attention to subsequent case law. The GAL is correct; this Court
has criticized In re Weiler, stating, “We . . . limit the holding
of Weiler to the specific facts of that case, and decline to extend
its reasoning further.” In re B.N.H., 170 N.C. App. 157, 162,
611 S.E.2d 888, 891 (2005). Indeed, we continue to “respectfully
disagree with the holding in Weiler, and express our concern that
an expansive interpretation and application of G.S. § 7B-1001(3)
may paralyze our juvenile courts' ability to function.” Id. at
161, 611 S.E.2d at 890-91. Nevertheless, we are bound by the
reasoning of Weiler. In In re B.N.H., we noted, “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 . . . .” Id. at 161-62, 611 S.E.2d at 891. The case
currently before us is just such an order, and, as such, it is
governed by the narrow confines of the Weiler decision.
Respondent first contends that the trial court erred by
changing the permanent plan for A.H. and K.G. to termination and
adoption as to her, while maintaining a plan of reunification withthe father. Because respondent offers no convincing authority for
the proposition that a plan cannot be changed for one parent and
not the other, this contention is without merit.
It is unclear exactly what respondent is arguing. She
essentially seems to rely on two basic assertions. The first of
these is that the termination of her parental rights is
unnecessary. On the contrary, the court listed a number of
findings leading it to the conclusion that termination was
necessary, including respondent's inappropriate language and
conduct in front of her children, her inability to obtain stable
and appropriate housing, her lack of gainful employment and dim
prospects for the attainment of such, and her refusal or inability
to appear for scheduled appointments.
Her second assertion is that the trial court's order will
result in her children becoming “legal orphans.” Her argument
seems to be that the children have little chance for adoption, and
so terminating her rights will not be in their best interest. She
ignores the fact that the father will remain, however, thus
preventing the children from becoming “legal orphans.” More
importantly, neither of these lines of argument flow from
respondent's assignment of error. “[The] 'scope of appellate
review is limited to the issues presented by assignments of error
set out in the record on appeal; where the issue presented in the
appellant's brief does not correspond to a proper assignment of
error, the matter is not properly considered by the appellate
court.'” Walker v. Walker, ___ N.C. App. ___, ___, 624 S.E.2d 639,641 (2005) (quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449
S.E.2d 10, 11 (1994)).
In addition, respondent cites no authority for her assignment
of error. Nowhere in her brief is there any authority, or even
argument, for why it is illegal to change respondent's plan to
termination while maintaining the father's plan as reunification.
“Assignments 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.” State v. McNeill, 360 N.C.
231, 241, 624 S.E.2d 329, 336 (2006) (quoting N.C.R. App. P.
28(b)(6) and citing State v. Augustine, 359 N.C. 709, 731 n.1, 616
S.E.2d 515, 531 n.1 (2005)). Accordingly, respondent's first
assignment of error fails.
Respondent next argues that the trial court erred in changing
the plan for N.G. to adoption and ordering that proceedings
terminating her parental rights be instituted without considering
whether placement with a relative was possible. Because we find
that the trial court did, in fact, consider familial placement,
this argument is without merit.
It is true that N.C. Gen. Stat § 7B-907(b)(2) requires that
the trial court consider “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 parents.” N.C. Gen. Stat § 7B-907(b)(2)
(2005). In this case, the trial court noted that the children were
not adequately cared for by their maternal aunt, with whom they hadoriginally been placed. The possibility of alternative familial
placement was addressed when the children were removed from their
maternal aunt's care in a previous order entered 19 October 2004 by
Judge C. Randy Pool. Judge Pool listed in his findings of fact
testimony that “there are no family members who can properly care
for the children.” “While the permanency planning order does not
contain a formal listing of the § 7B-907(b) (1)-(6) factors,
expressly denominated as such, among its . . . comprehensive
findings of fact, we conclude the trial court nevertheless did
consider and make written findings regarding the relevant §
7B-907(b) factors.” In re J.C.S., 164 N.C. App. 96, 106, 595
S.E.2d 155, 161 (2004). The fact that the trial court made no
formal mention of the possibility of a familial placement in his
own findings of fact does not lead this Court to ignore judicial
findings of fact made less than a year before. Because we find
that alternative familial placement was considered by the trial
court, respondent's assignment of error fails. Accordingly, we
affirm the district court's order.
Affirmed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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