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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1296

NORTH CAROLINA COURT OF APPEALS

Filed: 3 July 2007

IN THE MATTER OF:

    R.B. & A.M.

                            Wayne County
                            Nos. 04 JA 244
                                04 JA 245

    Appeal by respondent-mother from order entered 28 February 2006 by Judge R. Les Turner in Wayne County District Court. Heard in the Court of Appeals 25 April 2007.

    E.B. Borden Parker, for Wayne County Department of Social Services, petitioner-appellee.

    Jeremy B. Smith, for Guardian ad Litem.


    Jeffrey L. Miller, for respondent-mother-appellant.

    JACKSON, Judge.

    Tracie B. (“respondent”) is the mother of R.B. and A.M., the juveniles who are the subject of this appeal.   (See footnote 1)  For the following reasons, we affirm in part and reverse in part the trial court's orders.
    By separate juvenile petitions, filed 10 November 2004, the Wayne County Department of Social Services (“DSS”) alleged that R.B. and A.M. (collectively, “the juveniles”) were neglected. Byorders filed 7 January 2005, the trial court adjudicated both juveniles neglected , and on 20 January 2005, the trial court ordered that the juveniles be placed in the nonsecure custody of DSS. On 23 November 2005, the trial court filed separate permanency planning orders, and respondent appealed to this Court. See In re R.B., No. COA06-484, 2007 N.C. App. LEXIS 59 (N.C. Ct. App. Jan. 2, 2007). As such, the facts of this case are stated in greater detail in the earlier opinion.
    Subsequent to the trial court's 23 November 2005 orders but before the 2 January 2007 filing of this Court's opinion in respondent's prior appeal, the trial court entered orders on 28 February 2006 following a review hearing on 26 January 2006. In these orders, the trial court changed the permanent plan from reunification with respondent to guardianship with the juveniles' custodians, Steven and Doris Johnson (“the Johnsons”) . The trial court left respondent's visitation to the Johnsons' discretion and determined that there was no need for further review hearings. Thereafter, respondent filed notice of appeal.
    On appeal, respondent contends that: (1) the trial court failed to comply with the mandates of North Carolina General Statutes, section 7B-906 before waiving further review hearings; (2) the trial court erred in delegating judicial responsibility for visitation to the Johnsons; (3) the trial court erred in considering and incorporating DSS and guardian ad litem reports; (4) the trial court erred in making findings which recited testimony or statements of the court; (5) the trial court erred incalling respondent as a witness at the review hearing; (6) findings of fact numbers 13 and 17 through 24 are not supported by sufficient competent evidence and, in turn, do not support the court's conclusions and orders; and (7) respondent has been denied due process because the tape recordings of the 26 January 2006 hearing were destroyed.
    Preliminarily, we note that respondent's second, third, fifth, and seventh arguments are identical to the arguments she raises in the companion case concerning her other child, L.B. In the interest of judicial economy, those arguments will not be discussed in detail herein, and this Court's disposition of the identical assignments of error in In re L.B., __ N.C. App. __, __ S.E.2d __ (July, 3 2007) (No. COA06-1295), will be considered the law of the case in both cases. Accordingly, consistent with this Court's opinion in L.B., we (1) reverse the trial court's order with respect to respondent's argument that the court improperly delegated respondent's visitation rights to the discretion of the Johnsons; (2) overrule respondent's argument that the court erred in considering and incorporating reports and summaries submitted by DSS and the guardian ad litem; (3) overrule respondent's argument that the court erred in calling respondent as a witness at the review hearing; and (4) overrule respondent's argument that she has been denied due process because the tape recordings of the 26 January 2006 hearing were destroyed. We will address respondent's remaining arguments in the order presented.     First, respondent contends that the trial court failed to comply with North Carolina General Statutes, section 7B-906(b). We agree.
    Pursuant to North Carolina General Statutes, section 7B- 906(a), “[i]n any case where custody is removed from a parent, guardian, custodian, or caretaker the court shall conduct a review hearing within 90 days from the date of the dispositional hearing and shall conduct a review hearing within six months thereafter.” N.C. Gen. Stat. . 7B-906(a) (2005). The trial court, however, may dispense with review hearings if the court finds the following by clear, cogent, and convincing evidence:
        (1) The juvenile has resided with a relative or has been in the custody of another suitable person for a period of at least one year;

        (2) The placement is stable and continuation of the placement is in the juvenile's best interests;

        (3) Neither the juvenile's best interests nor the rights of any party require that review hearings be held every six months;

        (4) All parties are aware that the matter may be brought before the court for review at any time by the filing of a motion for review or on the court's own motion; and

        (5) The court order has designated the relative or other suitable person as the juvenile's permanent caretaker or guardian of the person.

N.C. Gen. Stat. . 7B-906(b) (2005). Failure to find all of these criteria constitutes reversible error. See In re R.A.H., __ N.C. App. __, __, 641 S.E.2d 404, 410 (2007). Additionally, findingspursuant to section 7B-906 must be made in writing. See L.B., __ N.C. App. at __, __ S.E.2d at __.
    In the instant case, the trial court complied with portions of section 7B-906(b). First, section 7B-906(b)(2) required the trial court to find that “[t]he placement is stable and continuation of the placement is in the juvenile[s'] best interests.” N.C. Gen. Stat. . 7B-906(b)(2) (2005). The trial court satisfied this requirement with the following findings, which were supported by competent evidence detailed in the DSS and guardian ad litem reports:
        24. That the best interest of permanence for the children, even though this is not a permanency planning hearing, is to leave the children where they are safe.

        25. That Steven and Doris Johnson continue to be fit and proper persons to have custody of the juvenile[s].

    The trial court also complied with section 7B-906(b)(5), which required the trial court to find that the custody order designated the juveniles' “permanent caretaker or guardian of the person.” N.C. Gen. Stat. . 7B-906(b)(5) (2005). The trial court fully satisfied this requirement with findings of fact numbers 2 and 3, in which the court found that the Johnsons were the juveniles' custodians and the Johnsons were designated as guardians of the juveniles on October 27, 2005. Respondent did not assign error to these findings, and thus, they are deemed binding on appeal. See In re W.L.M., __ N.C. App. __, __, 640 S.E.2d 439, 441 (2007).
    The trial court, however, failed to make findings with respect to sections 7B-906(b)(1), (3), and (4). First, pursuant to section7B-906(b)(1), the trial court was required to find that the juveniles had resided with a relative or been in the custody of another suitable person for at least one year. See N.C. Gen. Stat. . 7B-906(b)(1) (2005). The trial court found that the juveniles continue to reside with the Johnsons, who were designated as their guardians. However, the statute requires a finding that R.B. and A.M. were in the custody of a relative or suitable person for at least one year, and the trial court failed to make findings to this effect.
    Next, section 7B-906(b)(3) required the trial court to find that neither the juveniles' best interests nor the rights of any other party, including respondent, required the continued holding of review hearings every six months. See N.C. Gen. Stat. . 7B- 906(b)(3) (2005). The trial court made the following findings of fact:
        7. That [respondent] had an opportunity to call witnesses and did not do so.

        . . . .

        10. That [respondent] was previously ordered to bring all the belongings of the . . . juveniles to the children but has not done so.

        11. That [respondent] informed the Court that she does not have any of the possessions of the juveniles.

        . . . .

        16. That at the Christmas visit between [respondent] and the juvenile[s], [respondent] had presents for [these] juvenile[s] . . . , but no present for the half-sibling, [L.B.].

        17. That after [respondent] gave her Christmas present to [R.B.], she pushed the Christmaspresent for [A.M.], a baby doll, back into the car and stated that [A.M.] could not have the present. This action on the part of [respondent], hurt the feelings of [A.M.].

        . . . .

        20. That [respondent] calls on Tuesdays, but the juvenile[s] do not want to talk to [respondent].

        21. That [respondent] refuses to go to the home of the custodians.

        22. That . . . [respondent] refuses to go to Johnston County.

        23. That the Court informed [respondent] that it was her responsibility to see her children and not the responsibility of the Johnsons to transport the children.

These findings were supported by competent evidence as presented in the DSS summary, with the exception of finding of fact number 20 in the order concerning R.B. That finding provides that “the juvenile [i.e., R.B.] and the half siblings of the juvenile [i.e., A.M. and L.B.] do not want to talk to [respondent].” As the DSS summary notes, “R[.B.] was the only child that would talk with [respondent] when she did call.” The order concerning A.M., on the other hand, correctly reflects the evidence presented in the DSS summary, noting that “the juvenile [i.e., A.M.] and the half sister of the juvenile [i.e., L.B.] do not want to talk to [respondent].” Thus, the trial court's findings, with the exception of a portion of finding of fact number 20 in the order concerning R.B., reflect the evidence presented in the DSS summary. The trial court, nevertheless, must make a written finding that neither the juveniles' best interests nor the rights of any other party,including respondent, require the continued holding of review hearings every six months. In the instant case, the trial court failed to do so as required by section 7B-906(b)(3).
    Finally, section 7B-906(b)(4) requires the trial court to find that all parties are aware that a review may be held at any time by the filing of a motion for review or on the court's own motion. See N.C. Gen. Stat. . 7B-906(b)(4) (2005). The trial court's orders, however, are devoid of any finding that respondent was aware that she was entitled to another review hearing by filing a motion for review.
    As the trial court's order fails to satisfy the requirements of sections 7B-906(b)(1), (3), and (4), we reverse on this issue and remand the case to the trial court to issue a new order with written findings of fact consistent with this opinion and the requirements of section 7B-906(b).
    In her next argument, respondent challenges findings of fact numbers 11, 13 through 15, and 23 on the grounds that the trial court simply recited respondent's statements and the court's statements at the hearing.
    As this Court has noted, “verbatim recitations of the testimony of each witness do not constitute findings of fact by the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.” In re Green, 67 N.C. App. 501, 505, n.1, 313 S.E.2d 193, 195 (1984) (emphasis in original). Respondent is correct that findings of fact numbers 11, 13 through15, and 23 are recitations of statements made during the review hearing.   (See footnote 2)  However, notwithstanding the five findings of fact that constitute recitation of testimony and statements by the trial court, the remaining findings of fact adequately support the trial court's conclusions. See In re S.W., 175 N.C. App. 719, 724, 625 S.E.2d 594, 597 (“[W]e hold that the remaining findings of fact are more than sufficient to support the trial court's conclusions of law complained of by respondent.”), disc. rev. denied, 360 N.C. 534, 635 S.E.2d 59 (2006). Accordingly, respondent's assignment of error is overruled.
    Respondent next contends that the trial court erred in making findings of fact numbers 13 and 17 through 24, on the grounds that they are not supported by sufficient competent evidence and, in turn, do not support the court's conclusions of law. We disagree.
    Respondent is correct that the evidence in the record on appeal fails to support findings of fact numbers 13, 18, and 19. Findings of fact numbers 18 and 19, however, simply state that the trial court called respondent and one of the juveniles' custodians as witnesses. Furthermore, as discussed supra with respect to respondent's argument concerning North Carolina General Statutes, section 7B-906(b), findings of fact numbers 17 and 20   (See footnote 3)  through 24 are supported by competent evidence _ i.e., the reports from DSS and the guardian ad litem. Further, these findings of factdemonstrate: (1) the lack of concern and love respondent has shown for R.B. and A.M.; (2) the lack of interest A.M. has in maintaining a relationship with respondent; and (3) the stable, safe, and nurturing home that the Johnsons continue to provide for R.B. and A.M. As such, these findings fully support the trial court's conclusion “[t]hat the best interest of the juvenile[s] will be promoted and served by continuing custody with Steven and Doris Johnson, who have been designated as guardians of the juvenile[s].” Respondent's assignment of error, therefore, is overruled.
    Affirmed in part; Reversed and Remanded in part.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).


Footnote: 1
     Respondent also is the mother of L.B., who is the subject of a separate appeal in COA06-1295. The orders entered with respect to R.B. and A.M. are nearly identical to the order with respect to L.B.
Footnote: 2
     These findings employ such language as “the mother informed the Court” and “the Court informed the mother.”
Footnote: 3
     As explained supra, finding of fact number 20 in the order concerning R.B. is supported in part only.

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