An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 November 2006
IN THE MATTER OF: Chatham County
R.B. No. 01 J 124
Appeal by respondent mother from order entered 24 September
2005 by Judge M. Patricia DeVine in Chatham County District Court.
Heard in the Court of Appeals 18 October 2006.
Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe,
for petitioner-appellee Orange County Department of Social
Poyner & Spruill, LLP, by Bryn D. Wilson, for petitioner-
appellee Guardian ad Litem.
Leslie C. Rawls, for respondent-appellant.
B.B. (respondent) appeals from order entered ceasing
reunification efforts with her minor child, R.B., and changing
R.B.'s permanent plan to termination of parental rights and
adoption. We dismiss respondent's appeal.
Respondent gave birth to R.B. in August 1992. In 1998,
respondent and R.B. relocated from Oklahoma to Hillsborough, North
Carolina to care for respondent's terminally ill mother.
On 20 March 2001, R.B. was admitted to UNC Hospital's Child
Psychiatric Unit for dangerous behavior. Pediatric psychiatrists
at UNC Hospital diagnosed R.B. with symptoms of ADHD, mental
retardation, primordial dwarfism, developmental delays, and alanguage disorder. R.B. was discharged from UNC Hospital on 6
On 7 June 2001, R.B. was readmitted to the UNC Hospital's
Child Psychiatric Unit. Hospital staff referred R.B. to the Orange
County Department of Social Services. In July 2001, UNC Hospital
discharged R.B. into respondent's care.
In August 2001, respondent and R.B. relocated to Chatham
County. While in Chatham County, R.B. threatened to stab his
school's principal with a pencil. On 1 November 2001, a
delinquency petition was filed against R.B. because he had set fire
to the home where respondent and he lived, which was owned by
respondent's brother. Three people were present in the residence
at the time of the fire.
On 15 November 2001, the trial court conducted a hearing on
R.B.'s delinquency petition. The trial court placed R.B. in the
non-secure custody of Chatham County Department of Social Services
(DSS). The trial court ordered a medical evaluation for R.B.
On 10 January 2002, the trial court conducted a hearing and
found R.B. needed one-on-one supervision. The trial court found
respondent was unable to provide this level of care. The trial
court ordered R.B. to remain in the custody of DSS. R.B. has been
residing in a residential treatment center since January 2002.
On 24 January 2002, the trial court conducted a hearing and
found R.B. attended a self-contained classroom and was doing
extremely well. At the hearing, respondent indicated her desire toreturn to Oklahoma. The trial court ordered R.B. should remain in
On 11 April 2002, the trial court conducted a review hearing
and found that it would be contrary to R.B.'s best interest for him
to return home with respondent. The trial court ordered that
R.B.'s custody remain with DSS.
On 13 June 2002, the trial court conducted a review hearing
and found R.B. had done very well in school and will move to the
4th grade next fall. The trial court found respondent visited
R.B. on Saturdays, but frequently did not stay the allotted time.
Respondent had not followed through on counseling for her parenting
skills or mental health. The trial court found respondent was not
responding appropriately, and whether or not reunification efforts
continue [should] be evaluated. . . . The trial court ordered
R.B. to remain in DSS's custody.
On 14 November 2002, the trial court conducted a review
hearing and found respondent had become more reliable. The trial
court allowed respondent to spend Thanksgiving with R.B. The trial
court ordered R.B. to remain in DSS's custody.
On 13 February 2003, the trial court conducted a review
hearing and found respondent had not followed through with her
recommended therapy. Respondent had not cooperated with other DSS
professionals in a consistent manner since the last court review.
The trial court found, [s]he has consistently missed appointments,
and not followed the visitation rules[.] The trial court ordered
R.B. to remain in DSS's custody. The trial court also ordered DSSwas relieved of reunification efforts with the juvenile's
On 20 March 2003, respondent relocated to Oklahoma to reside
with her stepmother and stepfather. She did not tell R.B. that she
was leaving North Carolina. On 8 May 2003, the trial court
conducted a hearing and found R.B. was doing very well in his
current setting, and his school work [was] satisfactory. The
trial court found respondent had moved back to Oklahoma and did not
tell R.B. of her relocation. Respondent failed to respond to
service providers. The trial court found that further attempts for
DSS to work with respondent were futile and not in R.B.'s best
interest. The trial court ordered R.B. to remain in DSS's custody.
The trial court also ordered adoption as the permanent plan for
R.B. and a petition to be filed to terminate respondent's parental
Between March and June 2003, respondent met Kevin Blocker
(Blocker) on the internet and respondent relocated to Illinois to
live with him. In June 2003, respondent made arrangements to
travel to North Carolina for a final visit with R.B. On 19 June
2003, respondent, Blocker, and Blocker's son arrived in North
Carolina. Respondent visited R.B. and told him she would never
return to North Carolina.
On 11 September 2003, the trial court conducted a hearing and
found respondent had come for a closing visit, and brought another
child with her. The trial court found, [respondent] told [R.B.]
she would see him when he was eighteen[.] The trial court alsofound DSS had filed a petition to terminate respondent's parental
rights and was attempting to serve respondent at her address in
Oklahoma. The trial court ordered R.B. to remain in DSS's custody.
On 11 March 2004, the trial court conducted a hearing and
found DSS had made reasonable efforts to work toward the permanent
plan of adoption. The permanent plan continued to be adoption. In
September 2004, respondent returned to North Carolina for a court
date on an unrelated matter and arranged for R.B. to stay with her
and Blocker overnight at a hotel. On 30 November 2004, the trial
court conducted a hearing and ordered that the permanent plan for
R.B. be adoption, concurrent with the possibility of reunification
On 22 September 2005, the trial court entered a custody order
after a permanency planning review. The trial court found: (1)
the best plan of care for the juvenile to achieve a safe,
permanent home is adoption, and that plan can be achieved within a
reasonable period of time and (2) [a] proceeding to terminate the
parental rights of Respondent Father and Respondent Mother is
necessary to achieve the permanent plan of adoption. The trial
court entered an order concluding R.B.'s best interest required
DSS's custody to continue. Respondent appeals.
Respondent assigned six errors on appeal in the record.
Respondent's brief asserts two of these assignments as follows:
(1) the trial court erred when it ordered respondent should only
have supervised contact with her minor child and (2) the trialcourt erred when it relieved DSS of reunification efforts and
changed the permanent plan to termination of parental rights and
adoption. Respondent neither argues nor cites any authority for
the other four assignments of error. These assignments of error
are deemed abandoned. N.C.R. App. P. 28(a) (2006).
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 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)
(citation omitted). The trial court's 'conclusions of law are
reviewable de novo on appeal.' In re D.M.M., ___ N.C. App. ___,
___, 633 S.E.2d 715, 716 (2006) (quoting Starco, Inc. v. AMG
Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211,
IV. Constitutional Error not Preserved
Respondent's sole argument in her brief asserts the trial
court violated her due process rights in determining R.B.'s best
interest required cessation of reunification efforts with her.
Respondent failed to raise this issue at the permanency planning
review hearing. A constitutional issue not raised before the trial court will
generally not be considered for the first time on appeal. State v.
Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) ([A]
constitutional question which is not raised and passed upon in the
trial court will not ordinarily be considered on appeal.); see
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)
(Defendant may not swap horses after trial in order to obtain a
thoroughbred upon appeal.). Respondent's due process argument and
her sole argument on appeal is not properly before us.
V. Failure to Assign Error
Respondent also failed to properly assign error to this
argument on appeal. [T]he 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). Respondent failed to assign any error to her due
process argument. Alternatively on this basis, her sole argument
is not properly before us.
Respondent also failed to assign error to any of the trial
court's findings of fact. When the trial court's findings of fact
are not excepted to on appeal, they are not reviewable. Brown v.
Board of Education, 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967);
see Dealers Specialities, Inc. v. Neighborhood Housing Services,
Inc., 305 N.C. 633, 635-36, 291 S.E.2d 137, 139 (1982) (when
appellant has failed to take a valid exception to the findings of
fact, the court's findings of fact are presumed to be supported by
competent evidence, and are binding on appeal). Substantial evidence in the record supports the trial court's
findings of fact. The trial court's findings of fact are binding
on respondent's appeal. The findings of fact properly support the
trial court's conclusions of law and its order that: (1)
respondent shall not be permitted to have contact with R.B., except
under the supervision and guidelines set out by the residential
treatment center and DSS and (2) DSS is relieved of reunification
Respondent failed to argue any of her assignments of error on
appeal. Respondent also failed to argue constitutional due process
violations at the trial court, and cannot argue them for the first
time on appeal. Respondent also failed to properly assign any
error to due process violations on appeal. Respondent's sole
argument is not properly before us. Respondent's appeal is
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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