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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 February 2007
IN THE MATTER OF: Catawba County
No. 99 J 338
A Minor Child.
Appeal by respondent-mother and intervenor-grandmother from
order entered 18 July 2006 by Judge C. Thomas Edwards in Catawba
County District Court. Heard in the Court of Appeals 22 January
Catawba County Department of Social Services, by J. David
Abernethy for petitioner.
Michael E. Casterline, for respondent-mother.
Cynthia Philips Goelling, for respondent-father.
D. Shawn Clark, for intervenor-grandmother.
Mary McKay, for Guardian ad Litem.
Respondent, the mother of the minor child Karen,
(See footnote 1)
intervenor, the child's grandmother, appeal from an order changing
the permanent plan for Karen from reunification with her father to
adoption. We dismiss grandmother's appeal and, after considering
the merits of mother's appeal, affirm the order.
Karen was born in October 1997. In November 1999 she was
adjudicated dependent, based on a petition filed 17 September 1999
by petitioner, Catawba County Department of Social Services (DSS).At the adjudication proceeding, respondent stipulated that her
substance abuse and alcohol abuse rendered her unable to parent
Karen. At the dispositional hearing, the court allowed respondent
to retain custody of Karen, and in September 2000 the court ceased
further reviews of the situation.
In April 2004 respondent began serving a six month prison term
for violation of probation. Karen was initially placed with the
intervenor. However, on 19 August 2004 a second petition was
filed, stating that respondent had an extensive criminal record and
was incarcerated for violation of probation. It also alleged that
DSS had substantiated a report of neglect and dependency, on the
grounds that intervenor allowed her son (Karen's uncle) to care for
the child and to drive her to school when he had been drinking
alcohol. A nonsecure custody order was issued, placing Karen in
the custody of DSS. In May 2005 Karen was adjudicated neglected
and dependent, and her custody was continued with DSS. On 28 June
2005 the trial court granted intervenor's motion to be joined as a
party to the proceeding in the role of caretaker.
After several continuances, the trial court issued an initial
permanency planning order on 21 November 2005. The order found,
inter alia, that a psychological evaluation of respondent had
resulted in a diagnosis of narcissism and an arrogant attitude; and
that respondent had no drivers' license and did not comprehend
how her actions led to the child's removal. The trial court also
found that the adult members of Karen's family continue to assert
their needs rather than the child's. The trial court directedthat the permanent plan for Karen be reunification with her father.
Permanency planning review orders were entered on 13 February 2006
and 25 April 2006, continuing custody with DSS, allowing visitation
by respondent and intervenor, and keeping the permanent plan as
reunification with the father. On 18 July 2006 the trial court
entered a permanency planning review order that changed the
permanent plan from reunification with Karen's father to adoption.
This order also changed mother's visitation with the juvenile.
From this order respondent and intervenor appeal.
After careful review, we dismiss intervenor's appeal for
significant violations of the North Carolina Rules of Appellate
Under N.C.R. App. P. 28(b)(4), an appellant's brief must
include a statement of grounds for appellate review.
Intervenor's purported Statement of Grounds for Appellate Review
simply cites N.C. Gen. Stat. § 7A-26, the statute that grants
appellate courts general jurisdiction over appellate matters. If
this were sufficient, then Rule 28(b)(4) would serve no purpose.
Intervenor fails to state the grounds for her right to appeal from
the specific order at issue, in violation of Rule 28.
Significantly, intervenor fails to cite any case law in
support of any of her arguments. Indeed, intervenor cites only
three authorities: (1) N.C. Gen. Stat. § 7A-26, granting appellate
courts general jurisdiction over appellate matters; (2) N.C. Gen.
Stat. § 7B-101(18), stating the definition of the term reasonableefforts; and (3) N.C. Gen. Stat. § 7B-907, which sets out
procedures to be followed in a permanency planning hearing. These
generalized citations fall far short of supporting any of the
specific positions advanced by intervenor in her brief.
N.C.R. App. P. 28(b)(6) states in relevant part that [t]he
argument shall contain a concise statement of the applicable
standard(s) of review for each question presented[.] Here,
intervenor sets forth five separate arguments in her brief. The
first two assert that certain findings of fact are not supported
by clear, cogent and convincing evidence. The third and fourth
arguments assert that certain conclusions of law are not supported
by the Findings of Fact or by the evidence in the record. The
fifth argument asserts that the trial court committed plain error
or abused its discretion by eliminating intervenor as a placement
option and by decreeing that adoption be the permanent plan. In an
apparent effort to comply with Rule 28(b)(6), intervenor makes the
singular assertion that the standard of review is abuse of
discretion without setting forth any statutory or common law
authority to support this standard of review. Of course, plain
error review does not apply to civil proceedings, In re L.M.C., 170
N.C. App. 676, 678, 613 S.E.2d 256, 257 (2005). And the clear and
convincing standard only applies to findings for adjudications
pursuant to N.C. Gen. Stat. § 7B-807 (2005) (adjudicating petitions
alleging abuse, neglect and/or dependency), and for findings
related to N.C. Gen. Stat. § 7B-1111 (2005) (adjudicating petitionsto terminate parental rights). In short, intervenor has not set
forth an accurate standard of review for each question presented.
As a result of intervenor's violations of the Rules of
Appellate Procedure, particularly her failure to set forth legal
authority in support of her arguments, review by this Court would
require us to construct intervenor's appeal. It is not the role
of the appellate courts, however, to create an appeal for an
appellant. Viar v. N.C. Dep't. of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005)
(citations omitted). The North Carolina Rules of Appellate
Procedure are mandatory and 'failure to follow these rules will
subject an appeal to dismissal.' Id. at 401, 610 S.E.2d at 360
(quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298,
Intervenor's appeal is dismissed.
Respondent Mother's Appeal
Respondent's sole argument on appeal is that the trial court
committed reversible error by failing to make certain findings of
fact required by N.C. Gen. Stat. § 7B-907 (2005).
Under Section 7B-907(b), at the conclusion of the [permanency
planning] hearing, if the juvenile is not returned home, the court
shall consider the following criteria and make written findings
regarding those that are relevant:
(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;
. . . .
(3) Where the juvenile's return home is unlikely
within six months, whether adoption should be
pursued and if so, any barriers to the
. . . .
Respondent argues that the trial court failed to make
specific written findings required by Section 7B-907(b)(1) as to
why it was not in the child's best interest to return home, and
failed to make findings about any barriers to Karen's adoption as
required by Section 7B-907(b)(3). We disagree.
Regarding the reasons why it was not in Karen's best interest
to return home, we note that the trial court's findings of fact
included, in pertinent part, the following:
The mother has reported that she works from
7:30 to 5:30 Monday through Thursday, and from
7:30 to 3:30 on Fridays, but no other details
are known. She is no longer attending classes
at CVCC. . . . She has no driver's license
She has completed parenting classes but is
unable to demonstrate lessons taught
scored low on tests for understanding of the
subject matter. The mother continues to
display narcissistic behavior
. She admitted
that she relapsed and used cocaine in March of
. Her drug and alcohol screens have been
negative except for her most recent test in
which she tested at 0.48% and 0.44 % blood
. . . . [She] is dependent on others
for every aspect of everyday life and is
unable to care for the child
. Further efforts
with her to prevent or eliminate the need for
placement clearly would be futile and
inconsistent with the child's health, safety,
and need for a safe, permanent home within a
reasonable period of time.
(emphasis added). Respondent's assertion, that the trial court
failed to state any reasons why it was not in Karen's best interestto return home, is simply erroneous in light of this and other
Respondent also asserts that the trial court failed to make
findings regarding any barriers to the juvenile's adoption.
by changing the permanent plan . . . to
adoption, the trial court necessarily
determined it was not in the children's best
interests to return home within the next six
months, pursuant to § 7B-907(b)(1); . . .[and]
that adoption should be pursued despite the
presence of potential barriers thereto,
pursuant to § 7B-907(b)(3)[.] . . . After a
careful review of the permanency planning
order, we conclude that . . . the trial court
has made sufficient findings of ultimate facts
concerning each of the § 7B-907(b) factors.
While the permanency planning order does not
specifically identify any of these findings as
being made pursuant to any of the § 7B-907(b)
factors, we do not read Harton
to so require,
as long as the trial court makes findings of
fact on the relevant § 7B-907(b) factors[.]
In re J.C.S.
, 164 N.C. App. 96, 106, 595 S.E.2d 154, 161 (2004)
(citing In re Harton
, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337
(2003)). This assignment of error is overruled.
For the reasons discussed above, we conclude that the
intervenor's appeal must be dismissed, and that the trial court's
order changing the permanent plan for Karen from reunification with
her father to adoption should be affirmed.
Dismissed in part; affirmed in part.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
To protect the privacy of the minor, we refer to her in
this opinion by the pseudonym Karen.
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