An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-484


Filed: 2 January 2007

                            Wayne County
R.B. and A.M.,                     No. 04-JA-244            
Minor Children                    No. 04-JA-245

    Appeal by Respondent-mother from permanency planning orders filed 23 November 2005 by Judge R. Les Turner in Wayne County District Court. Heard in the Court of Appeals 19 October 2006.

    Jeffrey L. Miller for Respondent-Appellant.

    E.B. Borden Parker for Petitioner-Appellee.

    Amanda A. Volz for Guardian ad Litem-Appellee.

    STEPHENS, Judge.

    Respondent-Appellant (“Respondent”) is the mother of R.B. and A.M., the juveniles who are the subject of this appeal.   (See footnote 1)  In separate juvenile petitions, filed 10 November 2004, the Wayne County Department of Social Services (“DSS”) alleged that both juveniles were neglected in that they live “in an environment injurious to [their] welfare.” Specifically, the petitions alleged that “[t]here was an ex parte order entered in Wayne County in 2003concerning Domestic Violence between [Respondent] and [A.M.'s father]. [Respondent] previously had a registered sex offender living in the home, which led to the removal of L.B.” A hearing regarding these children was held in Wayne County District Court on 29 November 2004. After the hearing, in two orders filed 7 January 2005, each addressing an individual child, the Honorable Rose Vaughn Williams found that Respondent admitted that, at the time of the filing of the petition, each juvenile “was a neglected juvenile and that there were sufficient facts for the Court to make such findings.” The trial court thus found the juveniles to be neglected, but continued custody with Respondent, “provided she complies with this order.” Judge Williams then ordered Respondent to:
        [A]ttend therapy with the juvenile, L.B., when the therapist deems it necessary for her to do so.
        [C]omplete a psychological evaluation and follow the recommendations made by the evaluator.
        [C]ooperate with . . . [DSS] and the guardian ad litem.
        [A]ttend and successfully complete anger management classes.
        [A]ttend parenting classes.
        [S]ubmit to random drug tests.
        [F]acilitate the visitation between and among all of her children.

On 6 January 2005, Respondent was scheduled to appear before Judge Williams at a review hearing regarding her progress and the welfare of her children. However, Respondent failed to attend the hearing and the trial court found that she “was not present in Court and the Court does not know the whereabouts of [Respondent] nor the juvenile[s].” Judge Williams found further that Respondent “hasnot complied with the previous order[s] of the Court[,]” and ordered the matter continued until 20 January 2005. Respondent again failed to appear for the 20 January 2005 hearing, and Judge Williams ordered that the children be placed in the nonsecure custody of DSS.
    Respondent then appeared at the 27 January, 14 April, and 8 August 2005 hearings in which custody was continued with DSS. After the 27 January 2005 hearing, the Honorable Joseph E. Setzer, Jr. authorized DSS to place each child in the home of Steven and Doris Johnson, R.B.'s grandfather and step-grandmother. At the conclusion of the 8 August 2005 hearing, the Honorable R. Les Turner ordered the permanency planning hearing to be held on 27 October 2005. At that hearing, the evidence tended to show the following:
    Tammy Oxendine, a foster care social worker for DSS, testified that during a previous hearing, Respondent provided DSS with her alleged home address and a telephone number for her employer. However, when Ms. Oxendine attempted to verify this information, she learned that Respondent did not live at the address she provided, and that her employer's phone had been disconnected. Ms. Oxendine testified further that she had had contact with Respondent since the previous hearing, but Respondent never informed her that her address had changed or that her employer's phone had been disconnected.
    Respondent testified that she had provided DSS her current address and that she has received mail from DSS at her currentresidence. She also indicated that she provided DSS with her telephone contact numbers, including a number for a cellular phone. Her new residence, in which she has lived for four months, has three bedrooms, a living room, a kitchen, and a bathroom. It is a wood and brick structure and she lives in the home with her father, when he is in Wayne County. Respondent testified that R.B. and A.M. would have their own bedroom in the house. Respondent testified further that she works at a laundry business called the Laundry Room, and that Ms. Oxendine could not locate the business because it is in the process of moving to Wilson County. Although the Laundry Room is changing locations, Respondent's continued employment has been confirmed by her employer. Overall, Respondent feels that she is able to care for her children.
    With regard to visitation the testimony indicated that, during a supervised visit three weeks earlier, Respondent left before the visit could begin because, according to Respondent, “Mrs. Johnson would not let her have any contact with the children and . . . was embarrassing her in front of other people at the park[.]” During her testimony, Ms. Oxendine explained that Mrs. Johnson would not allow the children to visit with Respondent because the court had required supervised visitation and a DSS worker had yet to arrive. More generally, Ms. Oxendine indicated that “[s]ome of the visits have gone very well.” However, during some scheduled visits, R.B. has asked Ms. Oxendine “how much longer the visit was because he wanted it to end.” There have been “visits where the children just didn't interact with [Respondent].” During their last two visits,the children have informed Ms. Oxendine that they desired to be with the Johnsons. The children seem bonded with the Johnsons and seem to be happy to have some stability in their lives. Respondent testified that she has had sporadic visits with her children, and that her phone contact with her children has been reduced over time.
By previous court order, Respondent was required to complete individual therapy, attend anger management, complete a psychological evaluation, maintain stable housing, and maintain employment. By the time of the hearing, she had completed most requirements, but had failed to complete a psychological evaluation. Ms. Oxendine testified that she was recommending guardianship of the children, rather than reunification with Respondent, because Respondent had not completed a psychological evaluation and because she could not determine whether Respondent's housing situation was stable or whether she was employed.
    With regard to the psychological evaluation, Respondent testified that, although her evaluator had difficulty acquiring information from DSS, she took a psychological test but the evaluator informed her that “it wouldn't be in [her] best interest for him to submit anything.” Since then, Respondent has made an appointment for a psychological evaluation with another service provider, called Eastpointe, but the woman with whom she made the appointment subsequently went on maternity leave. Respondent has taken no further action to comply with the court orders on this issue since March or April 2005.    Ms. Oxendine testified further that the agency was recommending guardianship of the children with the Johnsons and that although they are not “blood relatives” to all of the children, they do not treat A.M. differently than they treat R.B. At the end of the hearing, in orders filed 23 November 2005, Judge Turner determined that the permanent plan regarding each juvenile “is changed to custody of the juvenile remaining with Steven and Doris Johnson with Steven and Doris Johnson being designated as guardians[.]” From this order, Respondent appeals. We affirm the order in part, vacate the order in part, and remand the case to the trial court.

    As a preliminary matter, we must address Respondent's “Motion to Dismiss and Strike Petitioner-Appellee DSS' [sic] Brief” filed 23 August 2006. In support of her motion, Respondent contends that because the brief submitted by DSS “was not timely filed or served, and no extension of time for filing was granted by the Court of Appeals[,]” the brief should be stricken and dismissed. We disagree.
    Under Rule 13 of the North Carolina Rules of Appellate Procedure,
        (a) . . . .
        (1) [w]ithin 30 days after appellant's brief has been served on an appellee, the appellee shall similarly file and serve copies of his brief.

        . . . .

        (c) If an appellee fails to file and serve his brief within the time allowed, he may not beheard in oral argument except by permission of the court.

N.C. R. App. P. 13(a)(1); 13(c). In this case, Respondent's brief was served on DSS, by mail, on 11 May 2006. Rule 27 of the North Carolina Rules of Appellate Procedure provides that “[w]henever a party has the right to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.” N.C. R. App. P. 27(b). Therefore, under Rule 13 and Rule 27, DSS was required to serve its brief on Respondent by 13 June 2006. However, DSS's brief was not filed in this Court until 3 July 2006 and was not served on Respondent until 30 June 2006, in clear violation of Rule 13, thus subjecting DSS to appropriate sanctions. However, as this case, pursuant to Rule 30(f), was not scheduled for oral argument, the appropriate sanction under Rule 13 (disallowing oral argument of appellee whose brief is not timely filed and served) is not applicable. Therefore, we may only impose sanctions, including striking the brief, under Rule 25 and Rule 34.
    While this Court takes violations of the appellate rules very seriously, because this case deals with guardianship of juveniles and because Respondent did not allege that she suffered any prejudice from the delay in being served with DSS's brief, we choose not to impose sanctions upon DSS's counsel. However, we caution DSS's attorney that the proper approach would have been to move the Court for an extension of time in which to file and serve the brief or, alternatively, to move the Court to deem the brieftimely filed and served. Respondent's “Motion to Dismiss and Strike Petitioner-Appellee DSS' [sic] Brief[,]” on Rule 13 grounds, is denied.

    Respondent first contends that the trial court erred by finding that she failed to comply with prior court orders requiring her to limit each juvenile's contact with Josh Ryan, a registered sex offender. Specifically, she argues that because the trial court did not order her to eliminate contact between these juveniles and Josh Ryan until after the 8 August 2005 hearing, and because there was no new evidence presented after that hearing that Respondent had violated this order, the order of the trial court should be reversed. We disagree.
    When this Court reviews permanency planning orders, we determine whether findings required by statute have been made, whether the conclusions of law are supported by these findings, and whether the trial court abused its discretion in making its dispositional determination. See N.C. Gen. Stat. § 7B-907 (2005). While Respondent's position is correct that this particular finding of fact is not supported by the evidence, because we believe that there are sufficient other findings to support the trial court's ultimate determination, we find her argument without merit. That is, even absent the trial court's finding regarding Respondent's violation of prior court orders prohibiting contact between Josh Ryan and her children, there exist other findings, based on clear, cogent and convincing evidence, that fully support the trialcourt's ultimate determination. For example, Judge Turner's findings that Respondent failed to undergo a court-ordered psychological evaluation, prematurely left a scheduled visit with her children three weeks before the permanency planning hearing, and had not conquered her anger problems, standing alone, are sufficient to warrant changing the permanent plan for the juveniles. Accordingly, this assignment of error is overruled.
    By her next argument, Respondent contends that the trial court abused its discretion in ordering her to undergo a psychological evaluation and erred by finding that she had not previously complied with the trial court's order directing such an evaluation.
    Under North Carolina law,
        [a]t the dispositional hearing or a subsequent hearing the court may determine whether the best interests of the juvenile require that the parent . . . undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication or the court's decision to remove custody of the juvenile from the parent[.] If the court finds that the best interests of the juvenile require the parent . . . [to] undergo treatment, it may order that individual to comply with a plan of treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent . . . upon [the parent's] compliance with the plan of treatment.

N.C. Gen. Stat. § 7B-904(c) (2005). In In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600 (2000), this Court determined that a trial court properly ordered a parent to undergo a psychologicalevaluation when it was determined that the parent was aware that her daughter was being abused and then acted in a manner which further compromised her daughter's welfare.
    In this case, in the 10 November 2004 petition, the allegations levied by DSS against Respondent included claims that Respondent exposed her children to domestic violence and that she placed her children in a compromising position by living with a sex offender. Court reports demonstrate that Respondent compounded this problem by continuing her contact with the sex offender and instructing her children to lie about their interactions with him. Further, during the 29 November 2004 hearing, Respondent “admitted that at the time of the filing of the petition, [each] juvenile was a neglected juvenile and that there were sufficient facts for the court to make such a finding.” Based on the serious nature of these allegations, Respondent's concession that her children were neglected, and this Court's holding in Cogdill, we hold that the trial court did not err in ordering Respondent to undergo a psychological evaluation.
    Additionally, at the hearing, Respondent's own testimony supported the trial court's determination that Respondent had failed to comply with the court's previous order that she undergo a psychological or psychiatric evaluation and comply with the recommendations of the evaluator. Therefore, we overrule this assignment of error.
    By her third argument, Respondent contends that the trial court failed to make sufficient findings of fact to support its permanency planning order, as required by N.C. Gen. Stat. § 7B- 907(b). Specifically, Respondent contends that the trial court erred by failing to make findings on: (1) why it was not in the juveniles' best interest to be returned home, (2) why guardianship with a relative or other suitable person should or should not be established, (3) whether the children should remain in their current placement or be placed elsewhere once the court determined that it was unlikely they would be returned home within six months, and (4) whether DSS made reasonable efforts to implement the permanent plan for the juveniles.
    In permanency planning proceedings, North Carolina law requires the following:
        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 relevant:
            (1)     Whether it is possible for the juvenile to be returned home immediately or within the next 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 parents;
            (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 necessary.

N.C. Gen. Stat. § 7B-907(b) (2005). In In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005), superceded by statute as stated in In re T.R.P., ___ N.C. ___, ___ S.E.2d ___ (Nov. 17, 2006) (No. 629A05), this Court determined that this section of the Juvenile Code does not require a permanency planning order to contain a formal listing of the § 7B-907(b)(1)-(6) factors, “as long as the trial court makes findings of fact on the relevant § 7B-907(b) factors[.]” Based on our review of Judge Turner's permanency planning orders, we believe that he considered all the relevant section 7B-907(b) criteria and made appropriate findings in his orders regarding them. In his permanency planning order handling R.B.'s disposition, Judge Turner made the following relevant findings of fact   (See footnote 2)  :
        14.    That the mother has been ordered to undergo a psychological evaluation but has not done so.
        15.    That the mother went to Dr. Scott Allen, but Dr. Allen did not complete the psychological evaluation although headministered some tests. The mother informed the Court that she had taken other tests. The mother called to make an appointment at Eastpointe for a psychological evaluation but was [told] that the person with whom she had an appointment was on maternity leave. The mother believes this was done in March or April of 2005, and she has not been contacted again by Eastpointe, nor has she contacted Eastpointe to see if the individual has returned from maternity leave or whether there is someone else that can conduct the evaluation.

            . . . .

        19.    That in describing the home where she now lives, the mother stated that her father stayed with her when he is in Wayne County and that she had room for this juvenile.

            . . . .
        27.    That the mother left a visit approximately 3 weeks ago because the social worker was not present on time and the custodian would not allow the mother to have contact with the juvenile until the social worker arrived. The social worker and the mother talked by telephone and the social worker informed the mother she would be at the visit and was running less than 5 minutes late.
        28.    That it does not appear to the Court that the mother has conquered her anger problems.
        . . . .

        31.     That the juvenile is well bonded with the current custodians[.]
        32.     That Steven and Doris Johnson are fit and proper persons to have the continued custody of the juvenile and to be designated as the guardian of the juvenile.
        33.     That the petitioner recommends that the permanent plan for the juvenile be changed from reunification to placementand guardianship with Steven and Doris Johnson.

        . . . .

        35.     That the Johnsons have added two bedrooms to their home to ensure that the juvenile and the half-siblings of the juvenile have a place with them.

These findings are sufficient to meet the requirements under N.C. Gen. Stat. § 7B-907(b). Specifically, we hold that (1) the requirements under section 7B-907(b)(1) are met by findings of fact 14, 15, 19, 27, and 28; (2) the requirements under section 7B- 907(b)(2) are met by findings of fact 31, 32, 33, and 35; (3) the requirements under section 7B-907(b)(3) are implicitly met by findings of fact 31, 32, 33, and 35; and (4) the requirements under section 7B-907(b)(4) are met by findings of fact 31, 32, 33, and 35.
    With respect to Respondent's argument that the trial court erred by not making any findings under N.C. Gen. Stat. § 7B- 907(b)(5), we hold that because this was the initial permanency planning hearing, there was no permanent plan with which DSS had to comply. Respondent's arguments regarding the sufficiency of the trial court's findings are without merit.
    However, Respondent additionally argues that the trial court erred in the visitation decision it made, by determining “[t]hat visitation between [each] juvenile and the mother shall be supervised by the custodians and shall be in the discretion of the custodians, but shall not be unreasonably prevented.” We agree and therefore remand this case to the trial court to amend the order.     In In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971), this Court held that “when visitation rights are awarded, it is the exercise of a judicial function. We do not think that the exercise of this judicial function may be properly delegated by the court to the custodian of the child.” The rationale underlying this decision is that when the discretion to provide visitation is granted to the custodian of a child, it may “result in a complete denial of the right[.]” Id. Based on the direction provided by this Court in Stancil, we hold that the trial court erred by leaving visitation within the discretion of the Johnsons. We thus vacate that portion of the court's permanency planning order and remand this case to the trial court to issue a new order on visitation between Respondent and her children consistent with this opinion and the Stancil holding.

    By her final argument, Respondent contends that the trial court erred by considering and incorporating reports and summaries from DSS and from the guardian ad litem as a finding of fact in its order. Respondent argues that the trial court included findings from DSS reports that were “patently incorrect because each DSS report was simply a template copy restating information from past reports[,]” and that “the actual findings stated by the Court without the incorporat[ed] finding[s] are insufficient under 7B-907 to cease reunification efforts and to establish guardianship.” We find this argument without merit.
    In North Carolina,        [a]t 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.

N.C. Gen. Stat. § 7B-907(b) (2005). When conducting a juvenile proceeding, the trial court is permitted to consider all materials, including written reports, that have been submitted in connection with the proceeding. In re J.S., 165 N.C. App. 509, 598 S.E.2d 658 (2004). However, “the trial court may not delegate its fact finding duty.” Id. at 511, 598 S.E.2d at 660 (citing In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003)). Specifically, “the trial court should not broadly incorporate these written reports from outside sources as its findings of fact.” J.S., 165 N.C. App. at 511, 598 S.E.2d at 660.
    In this case, Respondent argues generally that the trial court erred by incorporating the DSS and guardian ad litem reports and that “[i]t is difficult to assess how much weight the court gave in its decision and disposition to those matters . . . which were purportedly read and incorporated in the order, but which were not articulated in its order.” Respondent's argument is without merit. We hold that the trial court properly incorporated DSS and guardian ad litem reports and properly made independent findings of fact, included in the permanency planning order, based on these reports. Moreover, these findings are sufficient to support the trial court's ultimate determination, and there is no evidence that Judge Turner relied on information from the reports that he then failedto include as a finding of fact in his order. Accordingly, this assignment of error is overruled.
    The order of the trial court is
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).
    The judges concurred and submitted this opinion for filing prior to 31 December 2006.

Footnote: 1
    Respondent is also the mother of an additional juvenile, L.B., who is the subject of an appeal in COA06-483. Although the appeals regarding R.B. and A.M. and their sibling were filed separately, there was only one hearing at the trial court which resolved the issues for all three juveniles.
Footnote: 2
    Identical findings can be found in A.M.'s order in Findings of Fact 15, 16, 20, 28, 29, 32, 33, 34, and 36.

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