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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-551
NORTH CAROLINA COURT OF APPEALS
Filed: 6 February 2007
IN RE:
J.S. and C.S.
HENDERSON COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner,
v
.
Henderson County
No. 02 J 103, 104
M.M.,
Respondent.
Appeal by respondent from judgment entered 10 November 2005 by
Judge Athena F. Brooks in Henderson County District Court. Heard
in the Court of Appeals 1 November 2006.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall for
respondent-appellant.
Djuana L. Swann, for petitioner-appellee.
Parker, Poe, Adams & Bernstein L.L.P., by R. Bruce Thompson
II, for Guardian ad Litem.
ELMORE, Judge.
Respondent mother appeals from the Review and Permanency
Planning Orders entered 10 November 2005 by the district court, in
which efforts to reunify two juveniles, J.S. and C.S., with
respondent were ceased and the court's plan to achieve a safe,
permanent home for the juveniles within a reasonable period of time
was changed to termination of parental rights so that the children
might subsequently be placed for adoption. The district court changed the permanency plan for these two
children because respondent failed to fulfill the requirements of
previous court orders, the fulfillment of which was a prerequisite
to respondent regaining custody or placement of the children.
Requirements that were unfulfilled at the time of the permanency
planning review include:
a. Mother tested positive for methamphetamine
on 11/07/04, 6/13/05;
b. Mother has not completed her parenting
assessment and evaluation by a licensed
psychologist;
c. Mother did not complete the relapse
prevention class . . .
d. Mother did complete a substance abuse
assessment but has not attended any group
sessions except for two.
e. Mother had a criminal complaint filed
against her by the father . . . for Assault
with a Deadly Weapon.
f. Mother was arrested for possession of
Methamphetamine
In addition, the district court found as a matter of fact that
[i]t is not possible (and certainly not likely) that the juvenile
can safely and lawfully be returned to a parent within six months
of this hearing, given the requirements of the N.C. Juvenile Code.
The district court further found that [e]fforts to reunify the
juvenile with a parent would be futile.
In her brief, respondent includes five arguments, which are
insufficient to vacate the permanency planning order entered 10
November 2005. This Court does not review respondent's fifth
issue, which was withdrawn during oral arguments. In her first, third and fourth arguments, respectively,
respondent claims that her constitutional and due process rights
were violated by the numerous inaudible portions of the transcript,
that the district court erred by ceasing reunification efforts with
respondent without making the findings of fact required by North
Carolina General Statutes section 7B-907(b), and that the district
court failed to make sufficient findings of fact as required by
North Carolina General Statutes section 7B-907 to support the entry
of the permanent plan of adoption.
Respondent contends that these errors constitute plain error,
citing Rule 10(c)(4) of the North Carolina Rules of Appellate
Procedure, which states:
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless may be
made the basis of an assignment of error where
the judicial action questioned is specifically
and distinctly contended to amount to plain
error.
N.C.R. App. P. 10(c)(4). This plain error rule has not been
expanded to civil cases in general or to child custody cases in
particular. In re B.D., 174 N.C. App. 234, 245, 620 S.E.2d 913,
920 (2005) (quoting In re Gleisner, 141 N.C. App. 475, 479, 539
S.E.2d 362, 365 (2000)).
Although respondent improperly uses plain error as the
standard of review we nevertheless choose to address these three
issues on the merits.
I.
In her first assignment of error, respondent asserts that her
constitutional and due process rights to pursue an appeal were
violated by the existence of numerous inaudible portions of the
transcript. Respondent lists a significant number of
unintelligible portions of the transcript in her brief, and asserts
that [t]he defects in the transcript originate with the poor
quality of the audiotape recording, which cannot be helped,
corrected, or overcome by any person or by any means.
Our Supreme Court has granted a defendant a new trial where
meaningful appellate review . . . is completely precluded by the
entirely inaccurate and inadequate transcription of the trial
proceedings and that no adequate record can be formulated.
State
v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984),
writ of
cert. denied,
Sanders v. North Carolina, 498 U.S. 1051 (1991)
.
However,
Sanders involved a transcript so incomplete and
inaccurate that one could not distinguish between transcript error
and reliable trial testimony reporting.
State v. McLaughlin, 323
N.C. 68, 108, 372 S.E.2d 49, 75 (1988). This Court has held that
where the transcript, despite its imperfections, is not so
inaccurate as to prevent meaningful review by this Court, the
assertion that the recordation of juvenile court proceedings are
inadequate to protect juvenile's rights is properly overruled.
In
re Hartsock, 158 N.C. App. 287, 293, 580 S.E.2d 395, 399 (2003)
(internal quotations omitted). We hold that the transcript was
adequate to provide meaningful review by this Court. Accordingly,
we overrule this assignment of error.
II.
In her second argument, respondent contends the district court
lacked subject matter jurisdiction to enter a permanent plan
because it failed to enter said plan within the time required by
North Carolina General Statutes section 7B-907(a). This statute
requires a trial judge to hold a permanency planning hearing
within 12 months after the date of the initial order removing
custody. The record indicates the district court held the hearing
twelve months and sixty-six days after the date of the initial
order. However, this Court has held that time limitations in the
Juvenile Code are not jurisdictional in cases such as this one and
do not require reversal of orders in the absence of a showing by
the appellant of prejudice resulting from the time delay.
In re
C.L.C., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005).
Respondent fails to show that she suffered prejudice as a result of
the time delay. Accordingly, we overrule this assignment of error.
III.
In her third assignment of error, respondent argues that the
trial court ceased reunification efforts with respondent without
making the findings of fact required by N.C. Gen. Stat. § 7B-
507(b). North Carolina General Statutes section 7B-507(b) provides
in relevant part:
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, adispositional 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
that:
(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
N.C. Gen. Stat. § 7B-507(b) (2005). The statute lists three other
findings of fact that would also negate the requirement of
reasonable efforts by the court.
Id.
Reunification efforts in this matter were ceased pursuant to
the Review and Permanency Planning Orders filed 10 November 2005.
Finding of Fact 48 states that [e]fforts to reunify the juvenile
with a parent would be futile, under the circumstances of this
case. Respondent argues that Finding of Fact 48 is insufficient
to meet the requirements of N.C. Gen. Stat. § 7B-507(b) and
contains no finding of any ultimate facts necessary to support the
conclusion of law that reasonable efforts should cease. However,
it appears from the extensive record as well as the trial judge's
previous findings of fact that competent evidence exists in the
record to support Finding of Fact 48 as well as the conclusion of
law that reunification efforts would be futile under the
circumstances and should cease. Accordingly, we overrule this
assignment of error.
IV.
In her final assignment of error, respondent argues that the
trial court did not make sufficient findings of fact as required by
N.C. Gen. Stat. § 7B-907 to support the entry of the permanent plan
of adoption. North Carolina General Statute section 7B-907
provides in pertinent part:
(b) . . . At the conclusion of the [permanency
planning] hearing, if the juvenile is not to
be 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.
(c) At the conclusion of the hearing, the
judge shall make specific findings as to the
best plan of care to achieve a safe, permanent
home for the juvenile within a reasonable
period of time. . . . If the juvenile is not
returned home, the court shall enter an order
consistent with its findings that directs the
department of social services to make
reasonable efforts to place the juvenile in a
timely manner in accordance with the permanent
plan, to complete whatever steps are necessary
to finalize the permanent placement of the
juvenile, and to document such steps in the
juvenile's case plan.
N.C. Gen. Stat. § 7B-907 (2005).
Appellate review of a permanency planning order is limited to
whether there is competent evidence in the record to support the
findings and the findings support the conclusions of law.
In re
J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004). In this
case we must determine whether the trial judge made sufficient
findings of fact to support the entry of the permanent plan of
adoption. Findings of Fact 41 through 48 meet the requirements of
N.C. Gen. Stat. § 7B-907 because they state (1) that the trial
court was unaware of any relative into whose custody the juvenile
could be released; (2) [i]t is not possible (and certainly not
likely) that the juvenile can safely and lawfully be returned to a
parent within six months of this hearing, given the requirements of
the N.C. Juvenile Code; (3) [a]s the Juvenile's return home
within six months is unlikely, adoption should be pursued in this
matter; (4) [a]s the Juvenile's return home within six months is
unlikely, the Juvenile's current placement should remain the same;
(5) plaintiff made reasonable efforts . . . to eliminate the need
for the placement of the juvenile, and to reunify the juvenile witha parent; and (6) [e]fforts to reunify the juvenile with a parent
would be futile, under the circumstances of this case.
These findings clearly meet the requirements of the statute,
and support the conclusion of law that the trial court's plan to
achieve a safe, permanent home for the Juvenile within a reasonable
period of time should be the termination of the parental rights of
the parents of the juvenile, so that the juvenile may subsequently
be placed for adoption. Accordingly, we overrule this assignment
of error.
For the foregoing reasons, the district court's decision is
Affirmed.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).
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