Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1122

NORTH CAROLINA COURT OF APPEALS

Filed: 6 March 2007

IN THE MATTER OF:
C.K.P.,                         Onslow County
Minor child                        No. 05 J 73    

    Appeal by respondent from judgment entered 16 June 2006 by Judge Sarah C. Seaton in Onslow County District Court. Heard in the Court of Appeals 22 January 2007.

    Susan J. Hall for respondent-appellant.

    No brief filed for petitioner-appellee.

    No brief filed for Guardian ad Litem.

    MARTIN, Chief Judge.

    Juvenile C.K.P. was placed in the legal custody of Onslow County Department of Social Services (“DSS”) on 25 February 2005, following the death of her father one day earlier as a result of injuries sustained in an automobile accident. The juvenile's mother (respondent) has been living in Sweden since 2001, when she was deported for overstaying her visa. Upon taking the juvenile into custody, DSS attempted to contact respondent. The juvenile was temporarily placed in physical custody of family friends. DSS also began investigating whether the juvenile had other relatives living in the United States. A paternal uncle and aunt were located in North Carolina, and on 17 June 2005 the court adjudicated the juvenile dependent and ordered physical custody be changed to the paternal uncle and aunt. DSS made contact withrespondent, who was restricted from entering the United States until 2011 due to her previous overstay of her visa. Respondent sought a waiver to reenter the United States, and respondent did make a trip to the United States in December 2005 until January 2006. During that time, respondent attempted to visit the juvenile once; however, she made arrangements to arrive by taxicab, but when the driver indicated to the paternal uncle and aunt that respondent was intoxicated, they requested that the driver not bring respondent to visit with the juvenile. During respondent's time in the United States, she did not make contact with DSS about her case. The court held review hearings periodically during the interim. On 19 April 2006 the case came on for permanency planning review. On 16 June 2006, the court entered an order ceasing reunification efforts with respondent, appointing C.K.P.'s paternal uncle and aunt guardians of the juvenile, and ceasing further reviews of the matter.

___________________
    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 a“Memorandum 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 states:
        [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 re Wheeler, 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 follows:
        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 intoxication.

            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 hearing.” Weiler, 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 juvenile.
    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***