IN RE: S.J.G.
Chatham County
No. 04 J 04
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.
Affirmed.
Judges MCGEE and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***