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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-976


Filed: 15 May 2007

In The Matter Of:

C.D.L.,                         Catawba County
A Minor Child.                    No. 04 J 271

    Appeal by Respondents from order entered 11 April 2006 by Judge Burford A. Cherry in Catawba County District Court. Heard in the Court of Appeals 10 April 2007.

    M. Victoria Jayne for Respondent-Appellant Mother.

    Hartsell & Williams, P.A., by Christy E. Wilhelm, for Respondent-Appellant Father.

    Lauren Vaughan for Petitioner-Appellee Catawba County Department of Social Services.

    STEPHENS, Judge.

    Respondent-Mother and Respondent-Father (collectively “Respondents”) are the biological parents of the juvenile who is the subject of this appeal. In a juvenile petition filed 4 November 2004, the Catawba County Department of Social Services (“DSS”) alleged that C.D.L. was a neglected and dependent juvenile. Specifically, DSS alleged that C.D.L. was neglected because Respondent-Mother “failed to get the child to school resulting in him missing 39 days of school and being tardy 65 times in the 2003/2004 school year.” Additionally, DSS contended that Respondent-Mother
        left the child with relatives for unspecified periods of time without giving her whereaboutsor when she will return to get the minor child. The Mother also did not make an adequate plan to pick up the minor child from the bus stop after school, which is located in [a] highly used traffic route.

The juvenile petition contained additional allegations regarding the actions and physical condition of Respondent-Mother's husband, a man who was married to Respondent-Mother at the time of C.D.L.'s birth, and therefore, presumed to be the father (“Presumptive Father”) of the juvenile.
    After a hearing, by order filed 18 January 2005, the Honorable Burford A. Cherry ordered C.D.L. placed in the nonsecure custody of DSS with physical placement with Presumptive Father's mother. The case continued in Catawba County District Court, and following an adjudicatory hearing held 14 March 2005, in an order entered 13 May 2005, Judge Cherry found, inter alia, that Respondent-Mother alleged that Respondent-Father was the biological father of C.D.L. Judge Cherry then concluded that C.D.L. was a neglected and dependent juvenile and placed the juvenile in the legal custody of DSS. Judge Cherry also ordered Respondent-Mother, Presumptive Father and C.D.L. to participate in paternity testing. Genetic testing performed by Laboratory Corporation of America on 24 May 2005 determined that Presumptive Father is not the biological father of C.D.L. After Respondent-Mother, Respondent-Father and C.D.L. participated in a paternity test, Laboratory Corporation of American reported that with regard to Respondent-Father and C.D.L., “the probability of paternity is 99.99%[.]”    On 30 August 2005, a permanency planning hearing was held before Judge Cherry. After this hearing, in an order filed 6 March 2006, Judge Cherry determined that “reunification efforts with the Mother shall cease” and that “the permanent plan for the minor child shall be adoption, with a concurrent plan of guardianship, by [Presumptive Father's parents], the maternal grandmother or the maternal aunt.” Following a review hearing held 14 March 2006, in an order filed 11 April 2006, Judge Cherry ordered guardianship of C.D.L. placed with Presumptive Father's parents. From this order, Respondents appeal. We affirm the order of the trial court.

    By their first argument, Respondents contend that the trial court committed reversible error by failing to timely enter the permanency planning order filed 6 March 2006 after a hearing held 30 August 2005. Since Respondents did not appeal from the 6 March 2006 order and have not petitioned this Court to issue its writ of certiorari to review this order, this assignment of error is dismissed.
    Rule 3 of the North Carolina Rules of Appellate Procedure provides in relevant part that “[t]he notice of appeal required to be filed and served . . . shall designate the judgment or order from which appeal is taken and the court to which appeal is taken[.]” N.C. R. App. P. 3(d). “Failure to comply with the requirements of Rule 3 of our Rules of Appellate Procedure requires the dismissal of [an] appeal as this rule is jurisdictional.” In re I.S., 170 N.C. App. 78, 84, 611 S.E.2d 467, 471 (2005)(citations omitted). In this case, each Respondent's individual notice of appeal clearly states that appeal is from the Permanency Planning Review Order filed 11 April 2006. Respondents' notices of appeal do not mention the trial court's order of 6 March 2006. Additionally, the record on appeal does not indicate that Respondents had previously noticed appeal from the 6 March order nor had Respondents petitioned this Court for certiorari. Therefore, the propriety of the 6 March 2006 order is not properly before this Court. Accordingly, this assignment of error is dismissed.
    By their next and final argument, Respondents contend that the findings of fact contained in the trial court's permanency planning review order do not satisify the requirements of N.C. Gen. Stat. § 7B-907(b)(4), and that the findings of fact are not supported by the evidence offered at the permanency planning review hearing. Respondents additionally argue that the trial court committed reversible error by not giving Cortney and Tony Godfrey, who are maternal relatives of the juvenile, placement preference over Presumptive Father's parents who, as established by Presumptive Father's paternity test, are not related to the juvenile. We disagree.
    Under North Carolina law, at the conclusion of a permanency planning hearing, “[w]here the juvenile's return home is unlikely within six months,” the trial court must consider and make relevant findings regarding “whether the juvenile should remain in thecurrent placement or be placed in another permanent living arrangement and why[.]” N.C. Gen. Stat. § 7B-907(b)(4) (2005). This Court recently recognized that we do not require a formal listing of the section 7B-907(b) factors as long as the relevant factors are considered and pertinent findings of fact are made by the trial court. In re L.B., ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 2, 2007) (COA06-483). “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.” In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) (citing In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997)). “This Court is 'bound by the trial court's findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.'” In re B.P., 169 N.C. App. 728, 732-33, 612 S.E.2d 328, 331 (2005) (quoting In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984) (citations omitted)).
    In this case, the trial court made the following relevant findings of fact:
        5.    The minor child continues to do well in the placement with his [presumptive] paternal Grandmother, Janet Lutz. He attends Southwest Elementary School and is receiving tutoring services.
        6.    The minor child has had weekend visits in the home of Cortney and Tony Godfrey. Janet Lutz has been concerned about C.D.L.'s need for consistency and has reported that C.D.L. had some difficulty adjusting to the differing rules in the two households.
        7.     The counselor at Southwest Elementary has reported that Janet Lutz has supportedthe minor child's education in “an exemplary manner.” Ms. Lutz maintains regular contact with the teacher and counselor, and the minor child's attendance and tardiness have drastically improved since placement with [Ms.] Lutz. As of February 10, 2006, the minor child had perfect attendance and no tardies.
        8.     The minor child continues in therapy at Family NET. The therapist reports that Janet Lutz has done “a fantastic job of trying to support C.D.L. [through] issues with school, his biological father, mother, and custody.” He reports that [Ms.] Lutz has been involved in every level of treatment with C.D.L., has brought him to appointments and has been willing to participate in any way requested. The therapist has also reported that the minor child's difficulties and stunted progress of late are a symptom of his stress and confusion associated with the custody battle between [Ms.] Lutz and the Godfreys. It is the recommendation of C.D.L.'s therapist that the custody issue be resolved so that C.D.L. can realize some relief from such stress.
        9.     The Court has previously established a permanent plan of guardianship with Janet Lutz, and there is no evidence before this Court that this plan is no longer in the best interest of the minor child.
        10.     After considering the homestudy conducted by and the testimony given by Phillip Borrero regarding Cortney and Tony Godfrey, the Court finds that certain important information was not provided to Mr. Borrero by the Godfreys in the process of the most recent homestudy, particularly with regard to the family's previous Child Protective Services History and Cortney Godfrey's medical conditions and history.
These findings of fact are sufficient to meet the requirements of section 7B-907(b)(4). Additionally, after a review of the record and transcript in this case, we conclude that the trial court's findings of fact are supported by competent evidence. Specifically, findings of fact 5 and 6 are supported by a report submitted by social workers providing services to C.D.L. and the testimony of Cortney Godfrey. Findings of fact 7 and 8 are supported by letters and email correspondence sent by a school counselor, C.D.L.'s teacher, and a therapist employed at Family Net, where C.D.L. is receiving therapy. Finding of fact 9 is supported by previous orders of the trial court, and finding of fact 10 is supported by the home study report submitted by Mr. Borrero and the testimony of Mr. Borrero, Cortney Godfrey and Tony Godfrey.
    Relying on In re L.L., 172 N.C. App. 689, 616 S.E.2d 392 (2005), Respondents also argue that the trial court erred in failing to first find that it was not in C.D.L.'s best interests to be placed with the Godfreys before placing him with Mr. and Ms. Lutz. This argument is without merit.
    In North Carolina, “[a]t the conclusion of the [permanency planning] 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 time. The judge may . . . make any disposition authorized by G.S. 7B-903[.]” N.C. Gen. Stat. § 7B- 907(c) (2005). Section 7B-903 provides in relevant part that:
        In placing a juvenile in out-of-home care under this section, the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that theplacement is contrary to the best interests of the juvenile.

N.C. Gen. Stat. § 7B-903(a)(2)(c)(2005) (emphasis added). In L.L., this Court remanded for further findings when the trial court placed a juvenile with non-family members before determining that “placing L.L. with [family members] . . . was not in L.L.'s best interests.” L.L., 172 N.C. App. at 703, 616 S.E.2d at 400. In that case, the trial court made findings regarding the home situation and income level of the relatives seeking custody of L.L., as well as the non-relatives' concerns with the potential placement of L.L. with those relatives, but did not make sufficient ultimate findings to address the best interests question. Indeed, this Court noted that the only two findings of fact which addressed the placement issue merely recited the relatives' and non- relatives' “views,” but drew “no factual conclusion[]” whether placement with the relatives was required under section 7B- 903(a)(2)(c). Id. at 704, 616 S.E.2d at 401. Importantly, the L.L. trial court made no findings whether the relatives seeking custody could meet the preliminary requirement under section 7B-903 of being willing and able to provide proper care and supervision for L.L. in a safe home. Id.
    By contrast here, in his permanency planning order Judge Cherry found that:
        After considering the homestudy conducted by and the testimony given by Phillip Borrero regarding Cortney and Tony Godfrey, the Court finds that certain important information was not provided to Mr. Borrero by the Godfreys in the process of the most recent homestudy, particularly with regard to the family'sprevious Child Protective Services History and Cortney Godfrey's medical conditions and history.

Implicit in this finding is the trial court's determination that, based on the study conducted on the Godfrey's home and the information that was provided to and withheld from the investigator, Judge Cherry could not find that the Godfreys were able to care for C.D.L. in a safe home. The statute plainly requires this determination before the trial court reaches the issue of placing the juvenile with relatives versus non-relatives. N.C. Gen. Stat. § 7B-903(a)(2)(c). For this reason, Judge Cherry did not need to reach the question of whether placement with the Godfreys was contrary to C.D.L.'s best interests. Accordingly, Respondents' argument is without merit.
    For the reasons stated, Respondents' first assignment of error is dismissed and the order of the trial court is affirmed.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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