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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 February 2007
IN THE MATTER OF:
B.D. No. 95J316
Appeal by respondent from an order entered 9 May 2006 by Judge
John K. Greenlee in Gaston County District Court. Heard in the
Court of Appeals 22 January 2006.
Jill Y. Sanchez, for Gaston County Department of Social
Annick Lenoir-Peek for respondent-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Murray C.
Greason, III, for Guardian Ad Litem appellee.
Respondent-father (respondent) appeals from an order
granting guardianship of the juvenile and ceasing reunification
efforts. We affirm.
On 31 October 1995, the Gaston County Department of Social
Services (DSS) filed a petition alleging that B.D. was a
neglected juvenile, and the district court placed B.D. in the non-
secure custody of DSS on that date. Respondent was served with the
summons on 9 November 1995 and appeared and participated in the
juvenile court proceedings. B.D. was adjudicated a neglected
juvenile on 24 April 1997. Respondent was granted custody of thejuvenile pursuant to an order entered 30 June 1997, but the court
did not terminate its jurisdiction.
On 9 July 1998, DSS filed another petition. This petition
alleged that B.D. was a neglected and/or dependent juvenile. The
petition stated that respondent-father was incarcerated and had
failed to make an appropriate child care arrangement. DSS assumed
custody by non-secure custody order. Subsequently, B.D. was
adjudicated a dependent juvenile.
On 26 February 1999, an order was filed which ceased
reunification efforts and ordered that DSS proceed with a plan for
adoption. From 1999 through 2006, the court continued to hold
review hearings. DSS retained custody.
On 29 March 2006, DSS filed a motion for review. DSS
recommended that the trial court appoint B.D.'s foster parents as
DSS stated that B.D. had been placed in the same
foster home since 24 May 2002, and that the placement was in her
best interest. A hearing on the motion was held and the court
entered an order appointing B.D.'s foster parents as guardians.
Respondent contends the trial court committed reversible error
because it did not have subject matter jurisdiction. Specifically,
respondent asserts (a) that DSS failed to issue and serve a
summons; (b) that DSS failed to file an affidavit of status in
compliance with N.C. Gen. Stat. § 50A-9 (1989) (repealed effective1 October 1999), the statute in effect at the time of the filing of
the petition; and (c) that DSS failed to comply with the North
Carolina General Statutes because the petition alleging dependency
failed to list the address of B.D. We disagree.
Defendant contends that the court lacked jurisdiction because
no summons was issued or served. We disagree.
At the time of the filing of the initial petition, the North
Carolina General Statutes gave the district court exclusive,
original jurisdiction over any case involving a juvenile who is
alleged to be delinquent, undisciplined, abused, neglected, or
dependent. N.C. Gen. Stat. § 7A-523 (1995) (repealed effective 1
July 1999). Furthermore, the General Statutes provided:
When the court obtains jurisdiction over
a juvenile, jurisdiction shall continue until
terminated by order of the court or until he
reaches his eighteenth birthday. . . . Nothing
herein shall be construed to divest the court
of jurisdiction in abuse, neglect, or
N.C. Gen. Stat. § 7A-524 (1995) (repealed effective 1 July 1999).
The current version of the statute similarly provides for
continuing jurisdiction over juveniles. N.C. Gen. Stat. § 7B-
In the instant case, on 31 October 1995, an initial neglect
petition was filed, and the Clerk of Court issued a juvenile
summons to respondent. The summons was personally served on
respondent by the Sheriff on 9 November 1995.
Prior to the entry
of the order appealed from, no order had been entered closing thecase and terminating the court's jurisdiction, and B.D. had not yet
reached the age of eighteen. Thus, the court retained jurisdiction.
Therefore, we disagree with respondent's contention.
Respondent contends the trial court lacked jurisdiction
because petitioner failed to comply with the Uniform Child Custody
Jurisdiction Act (UCCJA). Specifically, respondent claims
petitioners failed to file an affidavit of status in accordance
with N.C. Gen. Stat. § 50A-9, and thus the trial court should have
dismissed the petition.
Our Supreme Court adopted a dissent from our Court where we
stated the requirements set forth by the [Uniform Child-Custody
Jurisdiction and Enforcement Act
(UCCJEA)] do not divest a court
of jurisdiction where . . . no other court has any claim to
jurisdiction over the action.
In Re Poole, 151 N.C. App. 472,
476, 569 S.E.2d 200, 202 (2002)
, rev'd per curiam, 357 N.C. 151,
579 S.E.2d 248 (2003)
. The UCCJEA, which became effective after
the UCCJA, has as one of its goals to [a]void jurisdictional
competition and conflict with courts of other States in matters of
child custody and to [p]romote cooperation with the courts of
other States to the end that a custody decree is rendered in that
State which can best decide the case in the interest of the
child[.] N.C. Gen. Stat. § 50A-101 (Official Comment) (2005)
UCCJA was a jurisdictional act relating to child
custody proceedings. Its purpose, among other things, was to
[a]void jurisdictional competition and conflict with courts ofother states in matters of child custody which have in the past
resulted in the shifting of children from state to state with
harmful effects on their well-being[.] N.C. Gen. Stat. § 50A-1
(1989) (repealed effective 1 October 1999).
Here, the case does not involve an interstate conflict. Any
purported failure to comply with the UCCJA did not divest the court
of its authority. Therefore, we disagree with respondent.
Respondent contends that the court lacked jurisdiction because
the petition alleging dependency failed to list the address of the
juvenile. However, the petition clearly stated that the juvenile
currently reside[s] with her maternal aunt and the aunt's address
was listed in the petition. Accordingly, we conclude that the
trial court had jurisdiction.
Respondent contends the trial court erred by entering an order
which failed to comply with N.C. Gen. Stat. § 7B-906 (2005).
Respondent claims that: (a) the trial court failed to make
sufficient findings in accordance with N.C. Gen. Stat. § 7B-906(c);
and (b) that the trial court failed to comply with N.C. Gen. Stat.
§ 7B-906(g). We address respondent's arguments in turn.
Respondent argues that the trial court failed to comply with
the requirements of N.C. Gen. Stat. § 7B-906(c). We disagree.
N.C. Gen. Stat. § 7B-906(c) provides that:
At every review hearing, the court shallconsider information from the parent, the
juvenile, the guardian, any foster parent,
relative, or preadoptive parent providing care
for the child, the custodian or agency with
custody, the guardian ad litem, and any other
person or agency which will aid in its review.
The court may consider any evidence, including
hearsay evidence as defined in G.S. 8C-1, Rule
801, that the court finds to be relevant,
reliable, and necessary to determine the needs
of the juvenile and the most appropriate
In each case the court shall consider the
following criteria and make written findings
regarding those that are relevant:
(1) Services which have been offered to
reunite the family, or whether efforts to
reunite the family clearly would be
futile or inconsistent with the
juvenile's safety and need for a safe,
permanent home within a reasonable period
(2) Where the juvenile's return home is
unlikely, the efforts which have been
made to evaluate or plan for other
methods of care.
(3) Goals of the foster care placement and
the appropriateness of the foster care
(4) A new foster care plan, if continuation
of care is sought, that addresses the
role the current foster parent will play
in the planning for the juvenile.
(5) Reports on the placements the juvenile
has had and any services offered to the
juvenile and the parent, guardian,
custodian, or caretaker.
(6) An appropriate visitation plan.
(7) If the juvenile is 16 or 17 years of age,
a report on an independent living
assessment of the juvenile and, if
appropriate, an independent living plan
developed for the juvenile.
(8) When and if termination of parental
rights should be considered.
(9) Any other criteria the court deems
N.C. Gen. Stat. § 7B-906(c).
Respondent's initial argument is that findings of fact numbers
five and six in the review order are whole-hearted adoptions of
DSS and guardian ad litem reports. However, respondent did not
assign error to these findings of fact. Thus, the finding of facts
are deemed supported by competent evidence and are conclusive on
appeal. In re L.A.B., ___ N.C. App. ___, ___, 631 S.E.2d 61, 64
Respondent next claims that the trial court made insufficient
findings regarding the provision of services. N.C. Gen. Stat.
§ 7B-906(c)(1). However, the trial court ordered in 1999 that
reunification efforts cease. Thus, a finding regarding services
offered to respondent towards reunifying him with B.D. was not
required because it was not relevant.
Respondent's next claim, regarding efforts at reunifying the
family, concern findings of fact numbers eight and nine. Again,
petitioner did not assign error to these findings of fact and they
are thus binding on appeal. In re L.A.B., ___ N.C. App. at ___,
631 S.E.2d at 64.
Furthermore, the court adopted a report from
DSS which stated that it [p]rovided paternal grandmother with
guidance and direction in an attempt to facilitate establishment of
a bond in a gradual process. However, the DSS report stated that
the grandmother made no efforts to introduce herself to B.D. Thus,there were sufficient findings made regarding this criteria.
Respondent's next claim concerns a lack of findings regarding
an appropriate visitation plan. N.C. Gen. Stat. § 7B-906(c)(6).
The record shows that respondent raised the issue of visitation at
the review hearing. In response, the court stated that
[v]isitation is not an issue until you're released from the
Department of Corrections. That's an issue that has to be raised
then. Thus, the court considered visitation, but because
respondent was currently incarcerated, the court declined to make
findings regarding an appropriate visitation plan because it was
not relevant at that time.
Respondent's next claim is that the trial court failed to
address whether termination of parental rights should be
considered. N.C. Gen. Stat. § 7B-906(c)(8). Respondent contends
that the court should have addressed why termination was not
appropriate. However, the record shows that DSS determined that
guardianship was in B.D.'s best interests, rather than termination,
because guardianship would allow her to continue in her current,
stable environment. Additionally, at the hearing, the court
explained to respondent that by not seeking termination, respondent
would have the right at some time in the future to come into
court, file a motion, and try and prove to the Court that you
should be part of her life again. Thus, even assuming arguendo
that the court's findings regarding this criteria was insufficient,
respondent can show no prejudice. Therefore, we conclude that the
trial court complied with N.C. Gen. Stat. § 7B-906(c).
Respondent also contends that the trial court failed to comply
with N.C. Gen. Stat. § 7B-906(g). We disagree.
The North Carolina General Statutes require the court to
verify that the person . . . 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. N.C. Gen. Stat. § 7B-906(g)
asserts that no inquiry was made. However, in a DSS report, DSS
stated that [t]he current foster parents are willing to accept
guardianship of this juvenile and have completed the application
requirements to be considered the legal risk adoptive placement.
Additionally, the guardian ad litem reported that [t]he foster
family has recently completed the process to become identified as
[B.D.'s] legal risk adoptive placement. Further, the report
stated that the guardian ad litem program supervisor had spoken
with the foster mother and she indicated that she and her husband
loved [B.D.] and wanted to adopt her, but they would accept
guardianship if the Court deemed that alternative appropriate. The
trial court adopted these reports in its findings.
DSS and the guardian ad litem recommended that guardianship was the
best option for B.D.
Accordingly, we conclude that the trial court
sufficiently complied with N.C. Gen. Stat. § 7B-906(g).
Respondent contends that the trial court erred by granting
guardianship of B.D. to her foster parents. Respondent claims thatguardianships are difficult to alter, and the court should have
chosen a less severe option that would have allowed him a chance to
parent B.D. in the future. Respondent contends that the court
should have simply awarded custody of B.D. to her foster parents.
The North Carolina General Statutes provide that:
(b) At any permanency planning review,
the court shall consider information from the
parent, the juvenile, the guardian, any foster
parent, relative or preadoptive parent
providing care for the child, the custodian or
agency with custody, the guardian ad litem,
and any other person or agency which will aid
it in the court's review. The court may
consider any evidence, including hearsay
evidence as defined in G.S. 8C-1, Rule 801,
that the court finds to be relevant, reliable,
and necessary to determine the needs of the
juvenile and the most appropriate disposition.
At the conclusion of the hearing, if the
juvenile is not returned home, the court shall
consider the following criteria and make
written findings regarding those that are
(1) Whether it is possible for the
juvenile to be returned home
immediately or within the next
six months, and if not, why it
is not in the juvenile's best
interests to return home;
(2) Where the juvenile's return
home is unlikely within six
months, whether legal
guardianship or custody with a
relative or some other suitable
person should be established,
and if so, the rights and
responsibilities which should
remain with the parents[.]
N.C. Gen. Stat. § 7B-907(b)(1)-(2) (2005).
Here, in accordance with N.C. Gen. Stat. § 7B-907(b)(1), thetrial court found that respondent was incarcerated and the
projected release date was in 2008. In regard to B.D.'s mother,
the court stated that DSS had been in contact with her, but that
she did not follow through on any of the things she was supposed to
do to be considered as a potential placement for B.D. Meanwhile,
the court found that B.D. had lived with her foster parents for
more than three years, and she continues to flourish in the foster
placement. In addition, the court found that it is in the best
interest of B.D. to remain in the physical and legal custody of DSS
for placement. Respondent did not assign error to any of these
findings and they are binding. We therefore hold that the trial
court properly concluded, after considering the criteria and making
the appropriate findings in accordance with N.C. Gen. Stat. § 7B-
907(b)(1) and (2), that guardianship with the foster parents should
be established. Accordingly, we affirm.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
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