IN THE MATTER OF: Wake County
J.D. No. 04 J 233
Wake County Human Services, by Albert Singer, for petitioner.
Terry F. Rose, for respondent-mother.
Robin Strickland, for respondent-father.
Richard Croutharmel, for Guardian ad Litem.
LEVINSON, Judge.
By order entered 12 May 2006, the trial court ordered that
custody of J.D., a minor child, be changed from Wake County Human
Services (WCHS) to his father, Randy D. The trial court also
ordered that J.D.'s mother, Rachel D. (respondent), have consistent
visitation with J.D. Respondent appeals. We affirm.
WCHS filed a juvenile petition on 30 April 2004, alleging
neglect because J.D. was living in an injurious environment and did
not receive proper care, supervision, or discipline from his
parents. J.D.'s home situation leading up to 30 April 2004 was
chaotic and violent. Further, J.D. had trouble in school; was
impulsive and physically aggressive with his peers; had difficultystaying “on task”; and had a history of lying and stealing. On 30
April 2004, WCHS removed J.D. from his parents' care, took him into
WCHS custody, and placed him in an emergency foster home. After a
few days, J.D. was moved to a therapeutic foster home.
J.D. was adjudicated as a neglected juvenile on 4 August 2004,
on the grounds that he lived in an environment injurious to his
well-being due to domestic violence and concerns about his parents'
mental health. A case plan was developed with J.D.'s parents
following the adjudication. The record suggests the trial court
conducted periodic reviews and permanency planning hearings between
August 2004 and May 2006, the details of which are not contained in
the record. According to court summaries, J.D.'s parents separated
immediately after WCHS removed J.D. from their care, and both
parents began working on case plans with WCHS to effect
reunification with J.D.
In June 2005, the trial court granted Randy D. unsupervised
visits with J.D. and changed respondent's visits from supervised to
monitored. About that same time, J.D.'s behavior worsened; he
became disrespectful of adults and regularly struck other children,
lied, and stole items.
In late October 2005, J.D. was removed from his therapeutic
foster home because he became a danger to himself and others. In
or around that time, J.D. was evaluated by adolescent psychiatric
and psychological specialists. His assessment was completed in
November 2005, at which time he was diagnosed with
attention-deficit/hyperactivity disorder (ADHD), oppositionaldefiant disorder, generalized anxiety disorder with psychotic
features, and dysthymic disorder. On 16 January 2006, J.D. was
placed in a residential treatment program at the Children's
Treatment Center (CTC).
The trial court conducted a permanency planning hearing, which
is the subject of this appeal, on 2 May 2006. At the time of the
hearing, J.D. was still enrolled at the CTC. The following
evidence was presented at the hearing: Rena Bendancourt, the WCHS
social worker involved with this case, submitted a written court
summary and testified it was her recommendation that J.D.'s father
be awarded custody of J.D., that J.D. continue to receive his
treatment at CTC, and that J.D. continue to receive his case
management services. Bendancourt testified that since WCHS's first
involvement with the family, J.D.'s father had “always been very
cooperative” with the agency; completed all of the services and
recommendations requested by the agency and ordered by the court;
maintained stable employment and a stable home environment;
attended meetings with the treatment team at CTC regarding J.D.'s
care; and followed the recommendations of the CTC treatment team
when J.D. had home visits with him.
Bendancourt testified respondent was difficult when the agency
initially became involved in the case and had been more cooperative
in the year preceding the hearing. She further testified
respondent participated in a substance abuse assessment, completed
the Women's Pretreatment 1 and 2, participated in a domestic
violence group, and completed her psychological evaluation. Bendancourt testified that respondent had not always complied with
her case plan to attend individual therapy, but that this was not
entirely her “fault.” Respondent had not been to individual
therapy since February of 2006. According to Bendancourt,
respondent has had difficulty obtaining stable housing.
Specifically, respondent had lived in three separate residences
from Thanksgiving 2005 until the hearing in May 2006. In addition,
Bendancourt testified she had concerns that respondent's medical
issues may interfere with her ability to consistently parent J.D.
Tom Sheller, a clinical supervisor/therapist at CTC, testified
J.D. was beginning to make progress and estimated J.D. may be able
to go home in six months. He further testified J.D.'s visits with
his parents had been going well and both of J.D.'s parents had been
cooperative with the program.
Avis Dublin, J.D.'s case manager, testified she had been
providing case management services to J.D. since October 2005.
Although she had not worked much with either of J.D.'s parents, she
testified she had worked with J.D.'s father more than respondent.
Dublin believed J.D. would continue to need her services for the
indefinite future and she had “no doubt” that J.D.'s father would
continue to use her services if he was given custody of J.D.
Because Dublin had not had enough contact with respondent, she was
unable to ascertain whether or not respondent would continue her
services if respondent was given custody of J.D.
Larry Tombaugh, J.D.'s guardian ad litem, testified it was his
recommendation that legal custody of J.D. remain with WCHS and thata permanent plan of reunification with one of J.D.'s parents
continue to be pursued. Based upon J.D.'s behavior in the past,
Tombaugh was concerned that J.D's behavior would change if he was
informed that one of his parents was given legal custody of him
even if he remained at CTC. Tombaugh testified he had concerns
about the stability of respondent's housing environment because
“she has no claim on [the] residence” in which she currently
resides and because she had moved several times in the six months
leading up to the hearing. He “cautiously advocate[d] for
[respondent to have] unsupervised visitation” with J.D. as long as
it was being monitored. Tombaugh testified that if the trial court
continued to have hearings in this matter, his concerns about
giving legal custody to one of J.D.'s parents would be reduced.
Both of J.D.'s parents also testified at the hearing.
Respondent testified that she was taking care of a mentally
handicapped woman with whom she was currently living.
By order entered 12 May 2006, the trial court awarded custody
of J.D. to his father; granted respondent unsupervised visitation;
ordered both parents to continue to engage in therapy; and ordered
that J.D. continue to reside at CTC and receive case management
services until his treatment team determined he could successfully
reside in the community. The trial court also maintained
jurisdiction over the matter and scheduled a review hearing on 17
October 2006. Respondent appeals.
In her sole assignment of error on appeal, respondent contends
“[t]he trial court abused its discretion when it gave sole legalcustody of the minor child to the minor child's father rather than
awarding joint custody to the mother and father.” We disagree.
The purpose of a permanency planning hearing is “to develop a
plan to achieve a safe, permanent home for the juvenile within a
reasonable period of time.” N.C. Gen. Stat. § 7B-907(a) (2005).
“The judge may . . . make any disposition authorized by G.S. 7B-903
including the authority to place the child in the custody of either
parent or any relative found by the court to be suitable and found
by the court to be in the best interest of the juvenile.” N.C.
Gen. Stat. § 7B-907(c) (2005).
It is well-established that “the fundamental principle
underlying North Carolina's approach to controversies involving
child neglect and custody . . . [is] that the best interest of the
child is the polar star.” In re Montgomery, 311 N.C. 101, 109, 316
S.E.2d 246, 251 (1984). “'In determining the best interests of the
child, the trial court should consider the parents' right to
maintain their family unit, but if the interest of the parent
conflicts with the welfare of the child, the latter should
prevail.'” In re T.K., 171 N.C. App. 35, 39, 613 S.E.2d 739, 741
(quoting In re Parker, 90 N.C. App. 423, 431, 368 S.E.2d 879, 884
(1988)), aff'd, 360 N.C. 163, 622 S.E.2d 494 (2005).
Respondent has not assigned error to any of the trial court's
findings of fact. Thus, the trial court's findings are conclusive
on appeal. See In re J.D.S., 170 N.C. App. 244, 250, 612 S.E.2d
350, 354 (trial court's findings of fact binding on this Court
where no assignments of error were made to particular findings),cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005). Here, the trial
court made the following findings of fact:
2. That the father has completed his
psychological evaluation and has been engaged
in therapy, has completed a substance abuse
assessment and participated in a pre[-]
treatment group, has maintained a stable home
and employment, and has attended treatment
team meetings regarding [J.D.] He has been
cooperative with the staff at the group home
in which the child has lived since January,
2006. The director of the group home believes
that the father will cooperate with the
recommendations of the staff of the home and
the treatment team. The case manager for the
child also believes the father will be
cooperative with the recommendations of the
treatment team.
3. That the mother who presented as being
difficult to work with at the outset of this
case, has cooperated with the agency. She has
completed her psychological evaluation, but
has not engaged in therapy since February,
2006. She also completed a domestic violence
group and pre[-]treatment group. The mother
has attended treatment team meetings and the
professionals working with the child believe
she will be cooperative with treatment
recommendations regarding the minor child.
4. That the mother has had difficulty in
maintaining a stable home environment having
moved into three separate residences since
Thanksgiving of 2005, and there are concerns
about her recurring medical issues. The court
also has concerns that the mother has taken on
the responsibility of caring for an adult with
mental handicaps, which would make it more
difficult for her to assume responsibility of
full time care of the minor child.
5. That the parents have improved their
communication since the initiation of this
action. However, because of their inability
to get along and the domestic violence in the
past, the Court finds that it is not in the
child's best interest for the Court to grant
the parties joint custody. The child needs
consistent structure and a sense of order, andthere is a risk that if the parents have joint
custody they will not be able to make
important decisions together concerning the
child.
6. That although both parents have made
substantial progress in regard to the orders
of this Court, the Court feels the child's
interests would be best served in the custody
of the father, who has maintained a stable
home and employment.
7. That the child's current placement at the
Children's Treatment Center in Laurinburg, NC
and his receiving certain services including
case management will not be jeopardized if the
court transfers custody from Wake County Human
Services to one of the parents.
8. That the child's placement in residential
treatment is meeting his needs and remaining
in this therapeutic environment and receiving
case management services are in the child's
best interests at this time.
9. That the father is capable of making
informed decisions concerning the health,
education, and general welfare of the child.
Here, respondent contends the trial court erred by granting
sole legal custody of J.D. to J.D.'s father rather than awarding
them joint legal custody. Respondent asserts that “[j]oint legal
custody would allow [her] to participate in decision making
activities concerning the child . . . [and] would further
facilitate communication between the parents rather than having the
father be in a position of more authority than the mother.”
On this record, we cannot conclude the trial court abused its
discretion in determining it was in J.D.'s best interest not to
award the parents joint legal custody. We therefore overrule this
assignment of error.
Affirmed.
Chief Judge MARTIN and Judge McCullough concur.
Report per Rule 30(e).
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