IN THE MATTER OF:
A.M.Z.
Johnston County
No. 04 J 163
Holland & O'Connor, by Jennifer S. O'Connor, for petitioner-
appellee Johnston County Department of Social Services.
Elizabeth Myrick Boone, for Guardian ad Litem.
Winifred H. Dillon, for respondent-mother-appellant.
JACKSON, Judge.
A.M.Z. is the child of Mary Alice T. (“Respondent”) and
Liborio I. who have never married. Johnston County Department of
Social Services (“JCDSS”) became involved with respondent and
A.M.Z. on 10 September 2004 and substantiated neglect on the part
of respondent.
Respondent mother has a lengthy history of involvement with
social services, as she has been involved in at least nine
investigations with at least six substantiations by departments of
social services in multiple counties. In February of 2004, JCDSS
was involved in an investigation with respondent when she fled toanother county and used an alias to avoid JCDSS and law enforcement
due to outstanding warrants. At the time, respondent had ten
children who did not receive remedial care and were not in school.
It was during this time that five of respondent's children and a
grandchild living with her died in a house fire while in her
custody. The remaining five children were injured seriously and,
after extensive treatment, continue to suffer illness from smoke
inhalation as well as other psychological and physical
disabilities. The surviving children were taken into foster care
by Onslow County Department of Social Services (“OCDSS”) where they
have remained since September of 2004.
(See footnote 1)
Initially, the five
children were placed into custody due to respondent's
incarceration. However, an ongoing investigation by OCDSS revealed
that her daughters were being sexually abused by their brothers and
by their mother's male friend, later identified by the daughters as
Liborio I.
While her five older children were in foster care through
OCDSS, respondent returned to Johnston County and continued her
relationship with Liborio I. She became pregnant with A.M.Z. but
did not notify any of her social workers about the pregnancy. At
the time of A.M.Z.'s birth, respondent had not completed her case
plan with OCDSS and had an ongoing case with OCDSS. OCDSS allowed
only supervised visits between respondent and her sons, and did not
allow any visitation between respondent and her daughters. Basedupon this history, JCDSS assumed custody of baby A.M.Z. due to a
substantial risk of injury or abuse.
In an order filed 22 December 2004, the trial court
adjudicated A.M.Z. neglected and dependent. Respondent was not
present, but consented to the adjudication through her attorney.
JCDSS established a case plan with respondent in which she agreed
to complete Family Pride parenting classes, complete OCDSS's home
study, complete a psychological evaluation and follow all
recommendations, complete counseling through Harbor domestic
violence groups, attend visitations with her children as allowed,
attend all mental health appointments and take prescribed
medications, attend family therapy as recommended by OCDSS, and
maintain employment and stable housing. A permanency planning
order was entered on 23 February 2005 which continued custody of
A.M.Z. with JCDSS and continued reunification efforts with both
parents. On 27 April 2005, a permanency planning review order was
entered which continued custody of A.M.Z. with JCDSS and continued
reunification efforts only with respondent.
A permanency planning review hearing was held on 8 August
2005, at which respondent appeared, but Liborio I. did not. After
considering testimony from social workers from JCDSS and OCDSS, as
well as counselors for respondent, the court found that respondent:
had been terminated from the Family Pride Parenting program without
completing the program due to lack of attendance even though she
had been involved with it for more than twelve months; stopped
attending mental health therapy even though her counselorrecommended continued therapy; did not address stress management as
recommended by her psychological evaluation; had not consistently
maintained employment; had not made any progress on her case with
OCDSS for her five older children in the last eighteen months; and
that even after domestic violence classes, she resumed her
relationship with Liborio I., who had been involved in domestic
violence disputes with her.
The court also found that respondent, while aware that Liborio
I. had been identified by her daughters as being the perpetrator of
sexual abuse against them, resumed her relationship with him and
was in fact living with him at the time of the hearing. The court
found that respondent lied to her case workers about resuming this
relationship and only after she was confronted by the workers did
she admit they had been living together for one to two months. The
court found that respondent refused to move to Onslow County where
her other five children were located despite efforts by OCDSS and
JCDSS to assist her in reunification with those children, and that
respondent requested that OCDSS keep her five children in foster
care for another year so that OCDSS could work with Liborio I. and
respondent could continue her relationship with him. The court
found that respondent was aware that A.M.Z.'s father, Liborio I.,
had not addressed any of the issues that led to the removal of
A.M.Z. including parenting and domestic violence issues. The court
also specifically found that respondent's continued relationship
with Liborio I. was a risk to all of her minor children and thatrespondent had a overall lack of understanding of the significant
needs of the minor children.
After the hearing on 8 August 2005, the trial court entered an
order permitting JCDSS to cease reunification efforts with
respondent and change the permanent plan for A.M.Z. to adoption.
From this order respondent appeals.
We begin by noting that respondent has included twenty-eight
assignments of error in the record on appeal, however she has
presented arguments as to only three of them in her brief.
Therefore, those assignments of error for which no argument has
been presented are deemed abandoned. N.C. R. App. P. 28(b)(6)
(2006).
Respondent first contends a portion of the trial court's
finding of fact number three is not supported by sufficient
evidence. Specifically, respondent challenges the finding that
“The Onslow County DSS has substantiated [Liborio I.] as sexually
abusing [respondent's] older daughter. [Liborio I.] has failed to
addressed [sic] any sex offender issues as well.”
Rule 10 of our appellate rules of procedure provides that “the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal in accordance
with this Rule 10.” N.C. R. App. P. 10(a) (2006). In addition,
following each question presented by an appellant in their brief,
they must reference the specific assignment of error which pertains
to the question presented and subsequent argument. N.C. R. App. P.
28(b)(6) (2006). “Assignments of error not set out in theappellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.” Id.
Respondent's assignment of error number five, to which this
portion of respondent's appeal is noted to pertain to, states “With
respect to paragraph 3 of the court's 'Findings', those findings
contained therein which are findings of fact and which relate to
Respondent mother, are not supported by competent evidence.” Thus,
by virtue of her assignment of error number three, respondent
challenged only those findings contained in finding of fact three
which relate to her. Her assignment of error does not in any way
also challenge the findings which are found in paragraph three of
the trial court's order which pertain to Liborio I. Therefore, the
findings of fact which respondent failed to challenge in her
assignment of error are deemed to be supported by competent
evidence and are binding on appeal. In re L.A.B., __ N.C. App. __,
__, 631 S.E.2d 61, 64 (2006) (quoting Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991)).
Accordingly, as respondent has presented an argument which was
not properly preserved and is outside the scope of her assignment
of error, we dismiss this assignment of error. We also note that
respondent has failed to present any argument in her brief
challenging the specific findings of fact which relate to her, thus
all of those findings are deemed binding on appeal. See N.C. R.
App. P. 28(b)(6) (2006).
Respondent next contends the trial court's conclusions of law
that “[i]t is not in the juvenile[']s best interest to return tothe custody of either parent” and “[t]he best plan to achieve a
safe, permanent home within a reasonable period of time is:
adoption[,]” are not supported by the evidence or the court's
findings of fact.
On appeal,
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 Chapter 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 efforts.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003)
(internal citations omitted). However, we review a trial court's
conclusions of law de novo. In re D.H., __ N.C. App. __, __, 629
S.E.2d 920, 922 (2006) (quoting Starco, Inc. v. AMG Bonding and
Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)).
Respondent assigned error to the trial court's findings found only
in paragraphs three through ten, twelve, fourteen, and nineteen of
the permanency planning review order, however she failed to present
arguments in her brief in support of those assignments of error.
Thus they are deemed abandoned, and are binding on appeal. N.C. R.
App. P. 28(b)(6) (2006). Also, respondent failed to assign error
to the trial court's remaining five findings of fact, therefore
these findings are deemed conclusive and also are binding onappeal. See In re L.A.B., __ N.C. App. at __, 631 S.E.2d at 64;
N.C. R. App. P. 28(b)(6) (2006).
“The purpose of the permanency planning hearing shall be to
develop a plan to achieve a safe, permanent home for the juvenile
within a reasonable period of time.” N.C. Gen. Stat. § 7B-907(a)
(2005). A trial court may order that reunification efforts with a
child's parents cease when the court finds as fact that “[s]uch
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[.]” N.C. Gen. Stat. § 7B-
507(b)(1) (2005).
In the instant case, DSS repeatedly attempted to work with
respondent, however their efforts were hampered by respondent's
continued noncompliance and lack of participation in meeting the
goals of her family services case plan. Respondent was terminated
from the Family Pride Parenting program due to her lack of
attendance over a course of twelve months, and she unilaterally
decided to stop attending her recommended mental health therapy.
In addition to failing to maintain consistent employment,
respondent also continued to maintain a relationship with Liborio
I., A.M.Z.'s father. Not only did respondent and Liborio I. have
a history of domestic violence, but sexual abuse allegations
against Liborio I. by one of respondent's older daughters had been
substantiated. The court specifically found that respondent “has
placed her relationship with [Liborio I.] over that of her minorchildren which places this child at risk of harm.” The court also
found
that due to the mother's inability to address
the issues, which led, not only to this
juvenile's removal, but her older five
children's removal by the Onslow County DSS,
who has been working with the mother for the
last eighteen months, this minor child would
be placed at risk of harm if returned to the
mother's care immediately or within the next
six months.
Therefore, based upon the trial court's findings of fact,
which are deemed conclusive on appeal, we hold the trial court did
not err in concluding that it is not in the best interest of A.M.Z.
that she be returned to respondent's custody at the present time.
We also hold the trial court did not err in ordering that
reunification efforts with respondent cease and that the permanent
plan for A.M.Z. be changed to that of adoption. The findings of
fact support the trial court's conclusions of law, and thus
respondent's assignment of error is overruled.
Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***