Respondent raises five issues on appeal.
Respondent first argues that the trial court erred when it
conducted a permanency planning review and ordered the cessation of
reunification efforts with respondent when the order was based on
a finding of fact that the child was adjudicated dependent, but the
adjudication order did not meet the statutory requirements. The
court's permanency planning review order relies on a finding of
fact that the juvenile was adjudicated dependent. Respondent
challenges the order, asserting that the finding is based on aMemorandum Juvenile Order that does not comply with statutory
requirements for adjudicatory hearings as described in N.C.G.S. §§
7B-805 and 7B-807.
The Memorandum Juvenile Order was filed on 17 June 2005.
Respondent's notice of appeal was filed on 20 June 2006. The
Memorandum Juvenile Order contained both an adjudication order
(that the juvenile was dependent) and a disposition order that
legal custody would remain with DSS but that physical custody would
be given to the juvenile's paternal uncle and aunt. The previous
version of N.C.G.S. § 7B-1001, effective until 1 October 2005
[R]eview of any final order of the court in a
juvenile matter under this Article shall be
before the Court of Appeals. Notice of Appeal
shall be given in writing within 10 days after
entry of the order. . . . A final order shall
include: . . . (3) Any order of disposition
after an adjudication that a juvenile is
abused, neglected, or dependent.
N.C. Gen. Stat. § 7B-1001(a) (2003). Under the statute, respondent
was required to appeal from the order within ten days. She failed
to do so.
Respondent argues that, even though she did not appeal the
order immediately after it was entered, the statutory shortcomings
of the order render it invalid. In a similar situation, this Court
held that a trial court's failure to state the standard of proof
used in making a determination of abuse or neglect constitutes
error, but [b]ecause no appeal was taken or other relief sought
from the . . . order, it remained a valid final order which was
binding in the later proceeding on the facts regarding abuse andneglect which were found to exist at the time it was entered. In
, 87 N.C. App. 189, 193-94, 360 S.E.2d 458, 460-61
(1987). Likewise, in this case, regardless of whether the court
committed error in the order adjudicating the juvenile dependent,
it is a valid order and was binding on the court during the
permanency planning review hearing.
Respondent's second argument is that certain findings of
fact are not supported by the evidence, and certain conclusions of
law are not supported by the findings of fact. Respondent also
argues that the trial court failed to make the requisite findings
before ceasing reunification efforts. Our standard of review is as
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.
If the trial court's findings of fact are
supported by competent evidence, they are
conclusive on appeal. In a permanency
planning hearing held pursuant to Chapter 7B,
the trial court can only order the cessation
of reunification efforts when it finds facts
based upon credible evidence presented at the
hearing that support its conclusion of law to
cease reunification efforts.
In re Weiler
, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003)
(citations omitted). Furthermore, [t]he presumption is in favor
of the correctness of the proceedings in the trial court, and the
burden is on the appellant to show error. In re Moore
, 306 N.C.
394, 403, 293 S.E.2d 127, 132 (1982) (internal citations omitted).
Respondent challenges the following findings of fact as not
supported by the evidence:
[Respondent] was in the United States for
a brief period of time during December, 2005
and January, 2006. She did not visit with
C.K.P. or contact the Department of Social
Services during this time. She did attempt to
visit her daughter, however, the visit was
cancelled due to [respondent's] obvious
The Department has assessed the risk
level to C.K.P. of future neglect or abuse as
low since she resides in a safe home with her
paternal uncle and aunt . . . . If C.K.P. was
under the care of [respondent] her risk level
would be high due to [respondent's] extensive
history of alcohol abuse.
[Respondent] has still not provided
Onslow County Department of Social Services
with documentation of the circumstances of her
deportation, despite numerous requests.
The court finds that the Onslow County
Department of Social Services has made
reasonable efforts to finalize a permanency
plan for the juvenile.
These findings are supported by the competent evidence where
the testimony at the hearing recounted respondent's trip to the
United States in late 2005, where the record documented
respondent's history of alcohol abuse, where the record revealed no
documentation of the circumstances of respondent's deportation
except for one letter from the American Consul in Stockholm stating
that respondent was deported due to an overstay, and where the
record showed DSS's active involvement in finding a permanent home
for C.K.P. As supported by the competent evidence, these findings are conclusive on appeal. See Weiler
, 158 N.C. App. at 477, 581
S.E.2d at 137.
Respondent also challenges five of the trial court's
conclusions of law. We hold that each of the challenged
conclusions are supported by the trial court's findings of fact.
Any findings of fact not assigned as error are presumed to be
correct and supported by the evidence. Moore
, 306 N.C. at 404, 293
S.E.2d at 133.
Respondent first challenges the trial court's conclusion that
reasonable efforts have been made toward pursuing the case plan of
legal guardianship with [the juvenile's paternal uncle and aunt].
This conclusion is supported by the findings that DSS has made
reasonable efforts to finalize the permanency plan and the best
plan of care to achieve a safe, permanent home for the juvenile
within a reasonable period of time is guardianship.
Respondent next challenges the conclusion that a return of
the juvenile to the home of her mother at this time would be
contrary to the welfare and best interest of the juvenile. This
conclusion is supported by the court's findings that respondent was
in the United States during December 2005 and January 2006 and did
not visit with C.K.P. or contact DSS during that time, that if
C.K.P. were under respondent's care her risk level would be high
due to respondent's alcohol abuse, and that respondent has not
provided care for the juvenile in over four years.
Respondent next challenges the conclusion that efforts to
reunite the juvenile with her mother would be futile; however, shedid not assign error to this statement. Furthermore, this
conclusion is actually a finding of fact, as we have addressed with
respect to respondent's argument that the court did not meet the
standard set out under N.C.G.S. § 7B-507(b).
Respondent further challenges the conclusion that the case
plan of legal guardianship with [the paternal uncle and aunt] is
the plan most likely to achieve permanence for the child in the
most reasonable manner. This conclusion is supported by findings
that [t]he case social worker observed C.K.P. to be bonded and
attached to paternal uncle and aunt . . . . C.K.P. stated that she
is happy in their home and that she feels comfortable. The social
worker observed appropriate interaction between C.K.P. and [her
uncle and aunt]. In support of its conclusion, the court also
found that risk to the juvenile would be low if placed with her
uncle and aunt and high if she were placed with respondent. The
court further found that the paternal uncle and aunt have both
stated their desire to provide long term care for C.K.P. and that
the juvenile's return home is unlikely to occur within six months.
Ultimately, respondent challenges the court's conclusion that
the Onslow County Department of Social Services has made reasonable
efforts to finalize a permanent plan for the juvenile and the Court
concludes that all the provisions set out below are in the best
interest of the juvenile and should be made the Order of the
Court. All of the findings discussed above support this
conclusion. Therefore, we affirm each of the trial court's
conclusions of law. Additionally, respondent argues that the court failed to make
one of the findings required by N.C.G.S. § 7B-507(b) before ceasing
reunification efforts. Section 7B-507(b) requires the court to
make a written finding of fact that one of four circumstances
apply, including that [reunification] efforts clearly would be
futile or would be inconsistent with the juvenile's health, safety,
and need for a safe, permanent home within a reasonable period of
time. N.C. Gen. Stat. § 7B-507(b) (2005). This conclusion is
actually a finding of fact, and so we review it as such. See
Gainey v. N.C. Dep't of Justice
, 121 N.C. App. 253, 257 n.1, 465
S.E.2d 36, 40 n.1 (1996) (Although denominated as a conclusion of
law, we treat this conclusion as a finding of fact because its
determination does not involve the application of legal
principles.). Findings to support the cessation of reunification
efforts must be based upon credible evidence presented at the
, 158 N.C. App. at 477, 581 S.E.2d at 137. The
credible evidence at the hearing revealed respondent's
inappropriate consumption of alcohol, her lack of cooperation with
DSS, and her lack of contact with C.K.P. This evidence was
sufficient for the court to find that reunification efforts would
be futile, and this finding satisfied the requirement of § 7B-
507(b); therefore, we find no error.
Respondent next argues that the trial court committed
reversible error when it failed to hold a permanency planning
review hearing within one year of the juvenile's custody being
removed from respondent. N.C.G.S. § 7B-907(a) requires, [i]n anycase where custody is removed from a parent . . ., the judge shall
conduct a review hearing designated as a permanency planning
hearing within 12 months after the date of the initial order
removing custody. N.C. Gen. Stat. § 7B-907(a) (2005). This
Court has held that use of the language 'shall' is a mandate to
trial judges, and that failure to comply with the statutory mandate
is reversible error. In re Eades
, 143 N.C. App. 712, 713, 547
S.E.2d 146, 147 (2001). However, this Court has also held, in
order to warrant reversal of a trial court's permanency planning
order for a violation of section 7B-907(a), an appellant must
demonstrate prejudice. In re L.B.
, ___ N.C. App. ___, ___, 639
S.E.2d 23, ___ (2007). Thus, the respondent must show more than
the court's failure to hold the review within twelve months, she
must also show resulting prejudice. In the present case, custody
of the child was removed on 25 February 2005, and the permanency
planning review was held on 19 April 2006, within fourteen months
of the juvenile's placement with DSS. Respondent made only one
assertion regarding prejudice arising from the court's actions.
She asserts: Respondent was prejudiced in that she could not give
notice of appeal from the adjudication or disposition orders.
Since this assertion could relate only to the 17 June 2005
memorandum adjudication and disposition order which was not timely
appealed as previously discussed, respondent has failed to show
that prejudice arose from the delay in hearing the permanency
planning review. We fail to conclude after reviewing the recordthat respondent was prejudiced by the court's delay in hearing the
permanency planning review.
Respondent next argues that the trial court committed
reversible error when it failed to hold a permanency planning
review within thirty days of relieving the petitioner of
reunification efforts. Our statutes require:
At any hearing at which the court finds that
reasonable efforts to eliminate the need for
the juvenile's placement are not required or
shall cease, the court shall direct that a
permanency planning hearing as required by
G.S. 7B-907 be held within 30 calendar days
after the date of the hearing and, if
practicable, shall set the date and time for
the permanency planning hearing.
N.C. Gen. Stat. § 7B-507(c) (2005). In addition to showing that
the trial court failed to follow the statute, respondent must show
that she was prejudiced by the error. See In re H.T.
, ___ N.C.
App. ___, ___, 637 S.E.2d 923, 928-29 (2006) (holding that failure
of the trial court to conduct a special hearing prior to the
adjudication hearing did not warrant reversal when
Respondent-father . . . made no specific showings or allegations
of prejudice stemming from any of these technical errors); see
also In re B.D.
, 174 N.C. App. 234, 240, 620 S.E.2d 913, 917 (2005)
(finding lack of notice of special hearing not to be reversible
error when respondents were unable to show they had suffered
prejudice). Although respondent properly set out the standard of
review in the present case, she failed to argue prejudice in the
brief and instead argued that the court abused its discretion. Absent a showing of prejudice, this assignment of error is overruled.
Respondent's final argument is that the trial court committed
reversible error when it failed to verify that the paternal
relatives understood the legal significance of the placement and
had adequate resources to care appropriately for the child.
Respondent cites N.C.G.S. § 7B-906(g), which states: If the court
. . . appoints an individual guardian of the person pursuant to
G.S. 7B-600, the court shall verify that the person receiving
custody or being appointed as guardian of the juvenile understands
the legal significance of the . . . appointment and will have
adequate resources to care appropriately for the juvenile.
Respondent argues that because the court failed to question the
paternal family to be sure they understood the legal significance
of caring for the juvenile and failed to make a finding that the
paternal family had adequate resources to care for the juvenile the
court violated the statutory requirement. Section 7B-906(g) does
not require the court to make specific findings, but requires the
court to verify. The court did not fail to meet the statutory
requirement where the court made a finding that [the paternal
uncle and aunt] have both stated their desire to provide long term
care for C.K.P. and where the evidence in the record demonstrated
that the paternal family had adequate resources to care for the
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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