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
Lauren Vaughan for Petitioner-Appellee Catawba County
Department of Social Services.
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
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
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
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
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
, 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
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
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
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
, 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-
at 704, 616 S.E.2d at 401. Importantly, the
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
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
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.
APPEAL DISMISSED IN PART AND AFFIRMED IN PART.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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