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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-698


Filed: 5 June 2007


                                Chatham County
                                No. 04 J 04

    Appeal by respondent from judgment entered 17 January 2006 by Judge M. Patricia DeVine in Chatham County District Court. Heard in the Court of Appeals 10 January 2007.

    Richard Croutharmel for appellant-respondent.

    Alexandra S. Gruber for appellee Guardian ad Litem.

    ELMORE, Judge.

    Respondent, the father of four-year-old S.J.G., appeals a 17 January 2006 permanency planning order placing guardianship of S.J.G. with her foster parents, the Martins.
    S.J.G. was adjudicated dependent at age nine months because of her mother's substance abuse problems. The mother, A.M.B., who is not a party to these proceedings, signed a voluntary boarding agreement placing S.J.G. in the custody of Chatham County Department of Social Services (DSS). S.J.G. was then placed into foster care with the Martins. Respondent, W.O., is listed as the father on the original juvenile petition filed by DSS in 2004.
    Respondent initially denied paternity, explaining that his relationship with the mother was a “one time” situation and that she was promiscuous, casting doubt on her claim that he was thefather of S.J.G. A.M.B. has two other children by a different father. Respondent eventually took a paternity test in January, 2005, and the results indicated that respondent is S.J.G.'s biological father. Respondent missed three appointments to take the paternity test before finally submitting his sample. A DSS report indicates that respondent was unreachable by telephone, and notices were sent by mail. Respondent indicated that it would be difficult for him to care for S.J.G. because he has a heart condition. Respondent is unemployed because of this condition, but collects disability.
    Respondent's sister, M.A.B., attended the 30 June 2005 permanency planning meeting for S.J.G. and her two half-siblings. She was the only family member present at the meeting, and stated that she would like to provide a placement for S.J.G., and, to eventually adopt her. M.A.B. is a licensed foster parent and has two grown children of her own. She is a homemaker and is also on disability because of a hip replacement. She indicated that the disability would not affect her ability to parent S.J.G., who, at the time, was a toddler.
    At the 11 August 2005 permanency planning hearing, DSS recommended that the permanent plan for S.J.G. be custody with M.A.B. Its report stated that
        [M.A.B.] is willing and eager to raise S.J.G. The . . . family is very large and primarily reside [sic] in the Sampson area. They all are a support system to each other, and report spending time together having cookouts and visiting one another. They envision and want S.J.G. to grow up with her biological andsignificantly large extended family and be part of her African American heritage.

        [M.A.B.] was in the process of becoming MAPP certified prior to becoming aware of S.J.G.'s existence. . . . It is significant to mention that [M.A.B.] has volunteered to care for S.J.G. without any of the monetary benefits afforded to foster parents. . . . [M.A.B.] has appropriate housing and a room prepared for S.J.G. The home is already child proof. [W.O.] plans to be actively involved in the rearing of S.J.G. [M.A.B.] has called this [social worker] on a regular basis to inquire about the wellbeing of S.J.G.
    S.J.G.'s Guardian ad Litem (GAL), however, recommended that custody and placement authority of S.J.G. remain with DSS because of S.J.G.'s attachment to her foster family. The GAL's 11 August 2005 report states that S.J.G.'s initial meeting with respondent and M.A.B. was “shocking and confusing for S.J.G. The GAL believes in order for S.J.G. to be placed in the care of her aunt, many more supervised visits should occur.” The GAL recommended that more supervised visits occur consistently with M.A.B. to further establish a relationship between child and aunt.
    The trial judge, in an order entered 27 September 2005, concluded that it was “in the best interest of S.L.G. [sic] that her permanent plan be changed to custody with a relative.” The judge also noted in her findings of fact that S.J.G. had been “placed in a loving and dedicated foster home” and “is very attached to her foster parents.”
    Before the 20 December 2005 permanency planning review, DSS again recommended that the permanent plan for S.J.G. be custody with M.A.B. The DSS reports indicate that the increased visitationwent well, and that W.O. and M.A.B. “traveled almost two hours each week to visit with S.J.G. and have shared that they will continue to visit with her should she need a slower transition to a permanent placement with them. . . . [M.A.B.] also would like S.J.G. to maintain her relationship with her foster parents.”
    The DSS report also addressed special considerations, including the effect of a trans-racial adoption (S.J.G. is black and her foster parents are white), concluding that:
        Depending on what evidence-based research one consults, there is information to support both S.J.G. being adopted by the foster parents as well as S.J.G. being placed with relatives. However, what is consistent was the fact that a child age 2-3 years old will have a difficult time transitioning to a new placement/environment, but that the transition can take place.

    The GAL again recommended that S.J.G. not be placed with M.A.B., suggesting instead that her permanent plan be guardianship by her foster parents with “a legally bound visitation plan with the biological family.” The GAL concluded that he found
        no compelling reason to uproot [S.J.G.] from the only parents she knows and place her with [her] biological aunt. If this transition occurred, I believe it would cause disruption in S.J.G.'s early attachment stage and pose great risk factors for negative developments. Such a transition in this point of her life could stimulate regression in S.J.G.'s attachment abilities, emotional development and capability to establish independence. She would be losing her “mother” and “father” and be placed in a vulnerable situation where she may choose not to attach to other caregivers. I believe her existing relationship and attachment with the Martins takes precedence over a potential new one, even if biological.
    The GAL also included a legal memorandum, which states that before disposition, the statutes give preference to placement with a relative, unless it is contrary to the best interests of the child. The memorandum further states, however, that after the disposition phase, “[t]he two alternatives for the court of either continuing the child in the current placement or moving the child to an alternate placement are on equal footing. . . . [T]here is not the preference for a placement with a relative.”
    Three letters in support of the Martins are also included in the record. These letters are from S.J.G.'s daycare providers and the parent of another child at the daycare. All emphatically opine that the Martins have been excellent parents to S.J.G. and should retain custody of her.
    The trial court, in its 17 January 2006 order, agreed with the GAL and ordered that the permanent plan be guardianship. The order placed guardianship with the Martins and ordered increasing visitation between S.J.G. and her biological family. The order also released DSS as a party.
    Respondent presents this Court with a single question for review: Did the trial court commit reversible error and violate respondent's substantial rights when it made guardianship of this child to the foster parents the permanent plan? Specifically, respondent assigns error to many of the trial court's findings of fact and conclusions of law. “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 theconclusions of law.” In re R.A.H., ___ N.C. App. ___, ___, 641 S.E.2d 404, 408 (2007) (citations omitted). “We review the trial court's conclusions of law de novo.” In re T.K., 171 N.C. App. 35, 43, 613 S.E.2d 739, 744 (2005) (citations omitted).
    Defendant first assigns error to finding of fact No. 1, which states that the trial court “heard substantially different and a great deal more information in this case than was available and presented at the last permanency planning hearing held on August 11, 2005.” Although defendant correctly asserts that the order does not indicate what information the finding relies upon, we find that there was competent evidence to support the finding, including the two reports from the GAL, as well as letters on behalf of the Martins.
    Defendant next objects to findings of fact Nos. 4 and 5, which state that S.J.G. “has had no meaningful relationship with her father and her Aunt,” and that “[d]iscovery of [W.O.]'s paternity was 'accidental'” and resulted only “after a number of missed appointments.” Again, we disagree. DSS noted that it “will still take S.J.G. some time to feel comfortable and get adjusted to her biological father and paternal aunt,” and the GAL noted that “[i]t has taken S.J.G. time to warm up to [M.A.B.].” Although we agree that it is unclear what is meant by discovery of paternity being “accidental,” there was competent evidence to support the trial judge's conclusion that respondent missed several appointments.
    Respondent next refutes finding of fact No. 8, that “legal custody or guardianship with a relative is not in the child's bestinterests.” In light of the extensive reports filed by the GAL, we disagree. The GAL's recommendation, although at odds with DSS's recommendation, was supported by adequate reasoning and competent evidence upon which the trial judge could base this finding of fact.
    Finally, respondent argues that findings of fact Nos. 9 through 12 “contain conclusions of law rather than findings of fact.” “A 'conclusion of law' is a statement of the law arising on the specific facts of a case which determines the issues between the parties.” In re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999). “'[I]f [a] finding of fact is essentially a conclusion of law . . . it will be treated as a conclusion of law which is reviewable on appeal.'” R.A.H., ___ N.C. App. at ___, 641 S.E.2d at 410 (citations omitted) (alteration in original). However, when such conclusions are fully supported by the findings of fact, their mislabeling is inconsequential. Id.
        We acknowledge that the classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment, or the application of legal principles, is more properly classified a conclusion of law. Determination that a child is not receiving proper care, supervision, or discipline, requires the exercise of judgment by the trial court, and is more properly a conclusion of law.

Everette, 133 N.C. App. at 85-86, 514 S.E.2d at 525 (citations and quotations omitted).
    We agree with respondent's contentions concerning findings of fact Nos. 10 and 12, and the last sentence of finding of fact No.9. These three findings of fact, which follow, are better categorized as conclusions of law under the Everette standard:
        9.    . . . It is in [S.J.G.'s] best interests to achieve a safe, permanent home to remain with [the] Martin[s] as her base and to have guaranteed increasing visitation with her Aunt [M.A.B.] and extended biological family.

        10.    It is in the child's best interest that the plan articulated by Dr. Mary Baker- Sinclair be the permanent plan, specifically that S.J.G. be placed in the guardianship of [the] Martin[s]; and that S.J.G. have a relationship with her biological family facilitated by regular, ongoing and increasing visitation with her Aunt [M.A.B.] and her extended biological family to eventually include overnight visitation. The plan is set forth herein below.

        12.    The best plan for S.J.G. to achieve a safe, permanent home and which is in the child's best interests is for guardianship to be established with [the] Martin[s] with a plan in place to ensure ongoing, increasing visitation between S.J.G. and her Aunt [M.A.B.] and [W.O.] as devised by Dr. Mary Baker-Sinclair with input from the Martins and from [M.A.B.] and [W.O.]. This plan is to be created and put in place in January, 2006 with approval of the Court; and shall be reviewed in December, 2006. The plan may be revised from time to time as S.J.G. grows older and her needs change.

    However, we further hold that the mislabeling is inconsequential because, although these findings of fact are more properly labeled conclusions of law, they are adequately supported by the remaining findings of fact. The remaining findings of fact include the following: S.J.G. had been in foster care for two years of her thirty-one months of life; she did not meet W.O. or M.A.B.until August, 2005; at the time, S.J.G. had not developed a meaningful relationship with W.O. or M.A.B.; M.A.B. is “feisty and energetic,” but “suffers from a disability in the form of double hip-replacements”; it is a risk to S.J.G. “to uproot her from the only stable base she has ever known, specifically residing with [the Martins';” and “[t]he risk of ongoing detriment is real.” We hold that these facts adequately support those portions of findings of fact Nos. 9, 10, and 12, which should have been categorized as conclusions of law.
    Accordingly, the decision of the trial court is affirmed.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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